Sherrilyn Davis Versus Consolidated Road District a for the Parish of Jefferson, Consolidated Drainage District No. 1 for the Parish of Jefferson, Consolidated Sewerage Districts of Jefferson Parish and State of Louisiana

SHERRILYN DAVIS NO. 22-C-240

VERSUS FIFTH CIRCUIT

CONSOLIDATED ROAD DISTRICT A FOR COURT OF APPEAL
THE PARISH OF JEFFERSON,
CONSOLIDATED DRAINAGE DISTRICT NO. STATE OF LOUISIANA
1 FOR THE PARISH OF JEFFERSON,
CONSOLIDATED SEWERAGE DISTRICTS
OF JEFFERSON PARISH AND
STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 808-142, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING

October 05, 2022

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Jude G. Gravois

WRIT GRANTED, JUDGMENT REVERSED,
MOTION FOR SUMMARY JUDGMENT GRANTED,
PLAINTIFF’S CLAIMS DISMISSED WITH PREJUDICE
SMC
FHW
JGG

COUNSEL FOR PLAINTIFF/RESPONDENT,
SHERRILYN DAVIS
Pierre F. Gaudin, Jr.
Elizabeth M. Gaudin

COUNSEL FOR DEFENDANT/RELATOR,
CONSOLIDATED ROAD DISTRICT A FOR THE PARISH OF JEFFERSON,
CONSOLIDATED DRAINAGE DISTRICT NO. 1 FOR THE PARISH OF
JEFFERSON AND CONSOLIDATED SEWERAGE DISTRICT OF
JEFFERSON PARISH
Guice A. Giambrone, III
Ivana Dillas

CHEHARDY, C. J.

On the night of July 23, 2019, while attempting to deliver groceries to her

cousin who lives next door, Ms. Sherrilyn Davis allegedly slipped and fell in water

and algae that she claims had collected on the sidewalk near her home on Cindy

Drive in Westwego, Louisiana, from a leaking pipe. After the fall, Ms. Davis

complained of pain on her left side, including in her neck, back, left arm, and left

leg. Ms. Davis filed a petition for damages against Consolidated Road District A

for the Parish of Jefferson, Consolidated Drainage District No. 1 for the Parish of

Jefferson, and Consolidated Sewerage District of Jefferson Parish (collectively,

“Jefferson Parish”), alleging that these defendants are liable for the damages she

sustained in this accident.1

After her fall, Ms. Davis took pictures of the area. Three pictures introduced

during her deposition were taken around the time that the workers began working

on the alleged defect, and one of the pictures was taken the day after she fell. Ms.

Davis explained that repair work began a day or two after the day that the workers

came out to look at the problem:

Q: Ms. Davis, did you take these four photographs
before or after you fell on July 23, 2019?

A: After.

Q: How long after?

A: I think it was like the next day. So I think they
started working like the next two days they came out and
started. Or somebody came out and looked at it the next
day or two. And then I guess a couple of days after that,
they came out and started working on it.

Q: So you took these pictures when you noticed people
starting to work on it?

A: Well, I took the picture before that with the – before
they started working on it. Well, I think they came out.
This was the very next day somebody came out. … Yeah,

1
Plaintiff’s Petition for Damages also names the State of Louisiana and Beechgrove Homes,
LLC d/b/a Beechgrove Claiborne Homes, as defendants, but plaintiff’s claims against those
defendants are not at issue here.

the guy came out to look at it. I think it could have been
two days after. But then maybe they started working a
couple of days after that.

***
Q: So let the record reflect that Miss Davis is stating
that Pictures 2, 3, and 4 were taken before Picture #1.
Correct?

A: Right.

Q: But were all four photos taken after you fell?

A: Yes.

Ms. Davis’s deposition testimony further indicates that she noticed the water at that

location in April 2019. A couple of weeks after discovering the potential leak, and

because she is a resident of Beechgrove Homes, she notified a Beechgrove

maintenance man about the issue. She never saw anyone from Beechgrove come

and inspect the area, but the maintenance man later informed her that this was not

an issue for Beechgrove but for the City or the Parish. Ms. Davis also stated that

she never informed Jefferson Parish of the leak.

Ms. Davis stated that when she first noticed the water a few months before

her fall, “it wasn’t much water. It was just like water seeping up. … It was just like

little bubbles that was coming up out of the ground.”

Q: … So once you informed the maintenance man of
Beechgrove about the leaking, did it continue to leak?

A: Well, I didn’t really pay attention to it like that. I
mean, I just noticed it then and saw the bubbles coming
out of it and just told him about it because I didn’t know
if it was sewer water or not. So no. I mean, I come home,
but I never paid attention to it.

***
Q: But the times that you did notice it, you noticed it
was still leaking?

A: Yeah. After I told him about it?

Q: Yes.

A: Yeah, I’ve seen. Yeah, it wasn’t bad or anything
then.
2

Q: Did you follow-up with anyone else at Beechgrove
when you saw that it wasn’t fixed?

A: No.

The affidavit of Destiny Bratton, a Jefferson Parish Public Works business

manager since 2010, states that the Parish of Jefferson owns the sidewalk and

utility pipes where plaintiff allegedly slipped and fell. Ms. Bratton personally

reviewed the Department’s work orders, complaints, incident reports, and accident

reports for the area located near Ms. Davis’s home in Westwego. Ms. Bratton

confirmed that the Jefferson Parish Water Department had not received any phone

calls, complaints, work orders, or reports of any defective or leaking pipes in the

area where plaintiff fell. On the day after plaintiff fell, however, a work order was

issued to “repair service line” and to “check for a possible leak.” Ms. Bratton

testified that the day the work-order issued, one day after plaintiff’s alleged fall,

was the exact date that Jefferson Parish was notified of the leak.2

Jefferson Parish filed a motion for summary judgment arguing that it had no

actual or constructive notice of the alleged defect, and thus it could not be held

liable for plaintiff’s damages under La. R.S. 9:2800 and La. C.C. art. 2317.1; that

Jefferson Parish owed no duty to Ms. Davis because the alleged defect was open

and obvious; and that there was no evidence that the leaking pipe created an

unreasonable risk of harm.

In opposition to Jefferson Parish’s motion for summary judgment, plaintiff

submitted her personal affidavit stating that she saw Jefferson Parish repair

workers inspect the leak before her fall. In her affidavit, plaintiff further contends

2
The Comments page of the Jefferson Parish Public Works Water Department Work Order No.
19-21581 states that on 7/24/19, “crew had to break a 4X5 portion of the sidewalk to get to the
leaking tubing. Operator had to go dump asphault [sic] from previous job and return with fresh
rock & sand. After the repairs were made, they had to backfill w/ the sand and rocks. The
Comments also indicate that on 7/25/19, the work was completed, but additional services were
requested from the Water Dept.: “Please repair a 4X5 portion of the driveway, water OM had to
repair a service line.”
3

that two additional witnesses, Tiarra Payton and Gloria Bush, saw these workers

inspecting the leak before her July 23, 2019 fall. There are no affidavits from these

two witnesses to corroborate Ms. Davis’s account, however.

After a hearing, the trial court denied Jefferson Parish’s motion for summary

judgment. Jefferson Parish filed the instant writ application seeking supervisory

review of that ruling. Finding merit to Jefferson Parish’s argument, we gave the

parties an opportunity to provide additional briefing and to request oral argument,

if desired, pursuant to La. C.C.P. art. 966 H.

DISCUSSION

In their writ application, Jefferson Parish assigns two errors in the trial

court’s ruling denying their motion for summary judgment. First, Jefferson Parish

argues that the trial court legally erred by misapplying La. R.S. 9:2800, which

mandates that a governmental entity have actual or constructive knowledge of a

defect before it may be held liable. Because Jefferson Parish came forward with

admissible evidence proving that it had no actual or constructive knowledge of the

alleged defect before Ms. Davis’s fall, she cannot meet her burden of proof at trial,

and summary judgment is warranted. Second, Jefferson Parish argues that the trial

court erred in admitting into evidence an undated, unverified, and unauthenticated

photograph that was attached to Ms. Davis’s affidavit.

In opposition, Ms. Davis argues that the assertion in her affidavit that she

saw Jefferson Parish workers inspecting the area before she fell, which suggests

that Jefferson Parish had actual knowledge of the alleged defect, constitutes valid

evidence that creates a genuine issue of fact. Ms. Davis contends that the fact that

her affidavit may be self-serving goes to the weight of the testimony, not to its

admissibility, citing Lambert v. Heirs of Adams, 325 So.2d 331, 334 (La. App. 3d

Cir. 1975) and W.L. Somner Co., Inc. v. Pacific-Atlantic Oil Co., 522 So.2d 1335,

1339 (La. App. 2d Cir. 1988). Ms. Davis points out that a judge’s role is not to

4

evaluate the weight of the evidence or to determine the truth of the matter, but to

determine whether there is a genuine issue of triable fact. Maggio v. Parker, 17-

1112 (La. 6/27/18), 250 So.3d 874, 878. She contends that the court must assume

that all affiants are credible. Broussard v. Univ. Hosp. & Clinics, 21-153 (La. App.

3 Cir. 11/17/21), 330 So.3d 723, 728; Joliboix v. Cajun Comfort, Inc., 16-414 (La.

App. 5 Cir. 12/7/16), 207 So.3d 655, 658; Montalbano v. Persich, 18-602, 603 (La.

App. 5 Cir. 5/29/19), 274 So.3d 855, 860-61. As such, any contradiction in witness

testimony that creates a material issue of fact renders summary judgment

impossible.

A motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue as to

material fact and that the mover is entitled to judgment as a matter of law. La.

C.C.P. art. 966 A(3). The burden of proof rests with the mover. La. C.C.P. art. 966

D(1). Nevertheless, if the mover will not bear the burden of proof at trial on the

issue that is before the court on the motion for summary judgment, the mover’s

burden on the motion does not require him to negate all essential elements of the

adverse party’s claim, action, or defense, but rather to point out to the court the

absence of factual support for one or more elements essential to the adverse party’s

claim, action, or defense. Id. The burden is on the adverse party to produce factual

support sufficient to establish the existence of a genuine issue of material fact or

that the mover is not entitled to judgment as a matter of law. Id.

We review the denial of a motion for summary judgment de novo. Robinson

v. Otis Condominium Ass’n, Inc., 20-359 (La. App. 5 Cir. 2/3/21), 315 So.3d 356,

361, writ denied, 21-343 (La. 4/27/21), 314 So.3d 837. Under this standard, we use

the same criteria as the trial court in determining if summary judgment is

appropriate: whether there is a genuine issue of material fact and whether the

mover is entitled to judgment as a matter of law. Id.

5

A fact is “material” when its existence or nonexistence may be essential to

the plaintiff’s cause of action under the applicable theory of recovery. Alexander v.

Parish of St. John the Baptist, 12-173 (La. App. 5 Cir. 10/16/12), 102 So.3d 904,

909, writ denied, 12-2448 (La. 1/11/13), 107 So.3d 617. Facts are material if they

potentially insure or preclude recovery, affect a litigant’s ultimate success, or

determine the outcome of the legal dispute. Id.

The party moving for summary judgment must meet a strict standard of

showing that the facts are clear and that any real doubt as to the existence of a

genuine issue of material fact has been excluded. Robinson, 315 So.3d at 361. If

the mover meets this burden, the burden shifts to the non-mover to present

evidence demonstrating that material issues of fact remain. Id. “Once the motion

for summary judgment has been properly supported by the moving party, the

failure of the nonmoving party [who has the burden of proof at trial] to produce

evidence of a material factual dispute mandates the granting of the motion.”

Portillo v. Progressive Paloverde Ins. Co., 13-815 (La. App. 5 Cir. 3/26/14), 138

So.3d 696, 698.

La. R.S. 9:2800, entitled “Limitation of liability for public bodies,” provides,

in pertinent part:

C. Except as provided for in Subsections A and B of this
Section, no person shall have a cause of action based
solely upon liability imposed under Civil Code Article
2317 against a public entity for damages caused by the
condition of things within its care and custody unless the
public entity had actual or constructive notice of the
particular vice or defect which caused the damage prior to
the occurrence, and the public entity has had a reasonable
opportunity to remedy the defect and has failed to do so.

To recover under this statute, a plaintiff must prove that: (1) the public entity had

custody of the thing that caused the plaintiff’s injuries or damages; (2) the thing

was defective because it had a condition that created an unreasonable risk of harm;

(3) the public entity had actual or constructive knowledge of the defect and did not

6

take corrective measures within a reasonable time; and (4) the defect in the thing

was a cause-in-fact of the plaintiff’s injuries. Perdomo v. City of Kenner, 18-156

(La. App. 5 Cir. 10/17/18), 258 So.3d 983, 991-92, writs denied, 18-1860 (La.

1/18/19), 262 So.3d 288 and 18-1861 (La. 1/18/19), 262 So.3d 895. The failure to

prove any one of the requirements enumerated in La. R.S. 9:2800 is fatal to

plaintiff’s case. Batiste v. United Fire & Cas. Co., 17-482 (La. App. 5 Cir.

3/14/18), 241 So.3d 491, 497-98; Lemoine v. Jefferson Par. Dep’t of Water, 99-

440 (La. App. 5 Cir. 11/29/94), 646 So.2d 1194, 1196-97.

Actual notice under La. R.S. 9:2800 has been found in cases where

complaints about the injury-causing defect were received by the proper authorities.

Perdomo, 258 So.3d at 992. Ms. Davis admits that she did not notify the Parish

before her fall of the leaking water on the sidewalk, and the Parish states that it did

not have notice until after Ms. Davis’s accident. Yet the affidavit that Ms. Davis

submitted with her opposition to Jefferson Parish’s motion for summary judgment

states that she “had seen workers inspecting the leak and wet sidewalk and

driveway before her fall, wearing green uniforms and driving a white and green

pickup truck with a Jefferson Parish Water Department logo on the doors and

numbers on the tailgate.” Ms. Davis also claims in her affidavit that two of her

neighbors can corroborate these facts, but she did not submit affidavits or

deposition testimony from these additional witnesses.

The affidavit of Ms. Bratton, which Jefferson Parish submitted in support of

its motion for summary judgment, states that there were no work orders, phone

calls, complaints, or reports related to any leak or water-related issue in the vicinity

of Ms. Davis’s home before her fall. Ms. Davis testified at her deposition that she

alerted the Beechgrove Homes maintenance man about the leak in April of 2019,

approximately three months before her fall, but after learning that the issue was not

Beechgrove’s responsibility, she never alerted the Parish. Ms. Davis’s subsequent

7

affidavit, in which she claims to have seen Jefferson Parish workers inspecting the

site of the leak before the date of her fall, constitutes self-serving and

uncorroborated evidence that is insufficient to create a genuine issue of material

fact as to whether the Parish had actual notice of the alleged defect. “A plaintiff

may not satisfy his/her burden on summary judgment by relying on allegations and

uncorroborated, self-serving testimony in response to the defendant’s properly

made and supported motion for summary judgment.” Caminita v. Roman Catholic

Church of Archdiocese of New Orleans, 20-54 (La. App. 5 Cir. 7/8/20), 299 So.3d

1269, 1272; see also Sims-Gale v. Cox Commc’ns of New Orleans, 04-952 (La.

App. 4 Cir. 4/20/05), 905 So.2d 311, 313-14 (finding that plaintiff’s reliance on her

own self-serving and factually unsupported affidavit was not the type of factual

support required to demonstrate that she would be able to meet her evidentiary

burden of proof at trial).

In Caminita, supra, plaintiffs sued the defendants after their son Gino, a fifth

grade student at Our Lady of Divine Providence School, allegedly slipped and fell

on water in the stairwell at school. Plaintiffs alleged that the water accumulated

due to a leak in the roof, which constituted an unreasonably dangerous condition.

Defendants submitted evidence that the fifth grader initially reported that he

tripped and fell over his school bag. Plaintiffs argued that the student’s account of

the water leak, which differed from the report that he fell over his school bag,

presented credibility determinations that were inappropriate for summary

judgment. Noting that it was plaintiff’s burden to prove that defendants had actual

or constructive notice of the dangerous condition allegedly caused by the water

leak, this Court granted the defendants’ writ application and rendered summary

judgment in defendants’ favor because plaintiffs had failed to satisfy their burden

of proof. “Gino’s self-serving testimony was not corroborated by evidence that

there was a water leak from the ceiling on the day he slipped and fell in the

8

stairwell, and the testimony does not create a genuine issue of material fact.” 299

So.3d at 1274. As in Caminita, Ms. Davis failed to include corroborating evidence,

such as affidavits from the witnesses who allegedly also saw Parish workers at the

site before her fall, in opposition to Jefferson Parish’s motion for summary

judgment.

Although Ms. Davis’s affidavit fails to establish that Jefferson Parish had

actual notice of the defect before her accident, we also must evaluate whether the

Parish had constructive notice of the leak. La. R.S. 9:2800 D defines “constructive

notice” as the existence of facts that infer actual knowledge. “Generally,

constructive notice can be found if the conditions which caused the injury existed

for such a period of time that those responsible, by the exercise of ordinary care

and diligence, must have known of their existence in general and could have

guarded the public from injury.” Perdomo, 258 So.3d at 992.

To carry her burden of showing that Jefferson Parish had constructive notice

of the allegedly dangerous condition created by the leaking pipe, Ms. Davis would

have had to show that the leak existed for such a period of time that the Parish had

a reasonable opportunity to remedy the defect but failed to do so. See, e.g., Burns

v. Sedgwick Claims Mgmt. Servs., Inc., 14-421 (La. App. 5 Cir. 11/25/14), 165

So.3d 147, 156 (discussing merchant liability under La. R.S. 9:2800.6).

Ms. Davis’s deposition testimony establishes that the leak existed for

approximately three months before her accident. She states that she reported the

leak to the maintenance man for Beechgrove Homes in April, and that she may

have noticed the leak approximately two weeks before reporting it to him. There

were small bubbles at first, but often she did not notice the water. She stated: “It

wasn’t bad or anything then.” Although the leak may have existed for three

months, there is no evidence in the record before us of how the leak may have

progressed or when algae began to collect at the site of the leak to create the

9

allegedly dangerous condition. By her own testimony, Ms. Davis herself often did

not take notice of the area immediately adjacent to her driveway.

In Jeansonne v. S. Cen. Bell Tel. Co., 08-568 (La. App. 5 Cir. 1/13/09), 8

So.3d 613, 620, the plaintiff tripped over guy wires or cables that supported a

utility pole but impeded a sidewalk. The plaintiff sued Jefferson Parish and the

utilities who used the pole. The plaintiff admitted that she did not notify the Parish

about the condition, but she argued that the Parish had constructive notice of the

defect because it was obvious. This Court determined that the mere existence of a

defect on the sidewalk was insufficient to constitute actual or constructive notice.

Here, without more, we cannot say that the allegedly dangerous condition on

the sidewalk existed for such a period of time that Jefferson Parish had a

reasonable opportunity to remedy the defect. As such, Ms. Davis cannot meet her

burden of proving at trial that Jefferson Parish had constructive notice under La.

R.S. 9:2800.

In its writ application, Jefferson Parish also assigns as error the trial court’s

admission of photo evidence. In her opposition, Ms. Davis does not dispute that the

photo in question was taken after she fell. Moreover, there is no indication that

Jefferson Parish objected to the introduction of this evidence in the court below,

that the trial court ruled on the admissibility of this evidence, or that it relied on

this evidence in particular when denying Jefferson Parish’s motion for summary

judgment. For these reasons, and because we review a motion for summary

judgment de novo and already have determined that Jefferson Parish’s motion for

summary judgment has merit, this assignment of error warrants no further review.

CONCLUSION

As Ms. Davis cannot meet her burden of proving at trial that Jefferson Parish

had actual or constructive notice of the alleged defect before July 23, 2019, the

date of her fall, we grant the writ application, reverse the judgment of the trial

10

court, and render summary judgment in favor of the defendants, Consolidated

Road District A for the Parish of Jefferson, Consolidated Drainage District No. 1

for the Parish of Jefferson, and Consolidated Sewerage District of Jefferson Parish.

Ms. Davis’s claims against these defendants are dismissed with prejudice.

WRIT GRANTED, JUDGMENT REVERSED,
MOTION FOR SUMMARY JUDGMENT GRANTED,
PLAINTIFF’S CLAIMS DISMISSED WITH PREJUDICE

11

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 5, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-C-240
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
GUICE A. GIAMBRONE, III (RELATOR) IVANA DILLAS (RELATOR)

MAILED
ELIZABETH M. GAUDIN (RESPONDENT)
PIERRE F. GAUDIN, JR. (RESPONDENT)
ATTORNEYS AT LAW
1088 FOURTH STREET
GRETNA, LA 70053