Jean Catherine Dragna Versus Terrytown Cafe, Inc. and Atlantic Casualty Insurance Company

JEAN CATHERINE DRAGNA NO. 22-C-241

VERSUS FIFTH CIRCUIT

TERRYTOWN CAFE, INC. AND COURT OF APPEAL
ATLANTIC CASUALTY INSURANCE
COMPANY STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 808-637, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

October 05, 2022

JUDE G. GRAVOIS
JUDGE

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

WRIT GRANTED; JUDGMENT REVERSED; SUMMARY JUDGMENT
GRANTED; CLAIMS DISMISSED WITH PREJUDICE
JGG
SMC
FHW

COUNSEL FOR PLAINTIFF/RESPONDENT,
JEAN CATHERINE DRAGNA
Robert M. Braiwick, Jr.

COUNSEL FOR DEFENDANT/RESPONDENT,
TERRYTOWN CAFE, INC. AND ATLANTIC CASUALTY INSURANCE
COMPANY
Sarah M. Kalis

COUNSEL FOR DEFENDANT/RELATOR,
F&W SOUTHERN CORPORATION
Thomas J. Eppling
Michael W. Maldonado

GRAVOIS, J.

In this trip and call case, defendant/relator, F & W Southern Corporation,

seeks this Court’s supervisory review of the trial court’s judgment which denied

relator’s motion for summary judgment. For the reasons that follow, we grant

relator’s writ application, reverse the trial court’s judgment, grant summary

judgment in favor of relator, and dismiss all claims against relator with prejudice.

FACTS AND PROCEDURAL HISTORY

On July 27, 2020, Jean Catherine Dragna filed a petition for damages,

naming as defendants Terrytown Café, Inc., and its insured, Atlantic Casualty

Insurance Company, arising out of a trip and fall incident at the Terrytown Café in

Gretna, Louisiana. Ms. Dragna alleged that on or about December 2, 2019, while

she was a customer at the Terrytown Café, she was exiting the premises when she

“slipped and fell on the threshold which was protruding above the floor level

creating a hazardous condition.” Subsequently, Ms. Dragna filed a supplemental

and amending petition for damages, adding as a defendant F & W Southern

Corporation, the owner of the subject property.

In July 2021, Terrytown Café, Inc. and Atlantic Casualty Insurance

Company filed a motion for summary judgment, arguing therein that Ms. Dragna

will not be able to prove multiple elements of her claims against them because she

lacks factual support to establish that an unreasonably dangerous condition caused

her injuries and that defendants had notice of the unreasonably dangerous

condition.

On January 26, 2022, F & W also filed a motion for summary judgment,

arguing therein that Ms. Dragna lacks factual support to establish that a defective

condition on the property caused her fall. F & W also argued that as owner of the

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property but not the operator at the time of the incident, it had no knowledge of the

alleged defect.1

In support of its motion for summary judgment, F & W attached as an

exhibit excerpts from Ms. Dragna’s deposition.2 Ms. Dragna testified that she

regularly visited the Terrytown Café for a couple of years, oftentimes three to five

times a week, and was there during the early morning hours of December 2, 2019.

At some point, she exited the building, without any trouble, to go next door to get

money out of a nearby ATM and then returned to the Terrytown Café to play video

poker. Later, upon leaving the Terrytown Café to go home, sometime after 2:00

a.m., Ms. Dragna tripped and fell. Regarding the trip, she stated:

Q. And based on your Petition, your lawsuit, it seems like you say you
-- you fell while exiting the threshold at the cafe; is that correct?

A. Yes. When I was leaving, going out the door, yes.

Q. Okay. And that was when you were exiting the front door of the
cafe; right?
A. Yes.
***

Q. And so you tripped on the threshold right here (indicating)?
A. I --

Q. Or can you -- why don’t you mark for me where you tripped on
that threshold?

A. Well, it happened -- it happened extremely, extremely fast.

Q. Sure.
A. And, as I was walking, I tripped. And I tripped on the threshold. I
don’t -- I’m not 100 percent sure if that was the first thing I tripped
on. But I know I tripped on the threshold. I don’t know if it was
the rug. I was turned -- I was turning, you know, to go leave.

1
F & W stated in its motion for summary judgment that it was adopting and
incorporating the factual background and legal arguments contained in Terrytown Café, Inc.’s
motion for summary judgment.
2
Both motions for summary judgment included excerpts from plaintiff’s deposition.
While most of the deposition pages are the same in both motions, F&W’s motion contained a
few less pages from plaintiff’s deposition. However, since F & W adopted the other defendants’
motion for summary judgment, we will consider the deposition attachments from both motions
for summary judgment.

22-C-241 2

And the reason I’m saying that is because, when I tripped, the door
was closed.

Q. Okay.

A. So if the door was closed, I – the threshold, you know --

Q. Wouldn’t be present?
A. Yeah. I put up both of my hands like this (gesturing).

Q. Okay.
A. And I propelled forward. I mean, when I tell you I flew forward,
I’m talking flew. Hit both hands open like this on the door. And I
remember, because they were red. I stung the hell out of them, on
the door. The door opened and then I tripped on the threshold,
which propelled me. I went off of this (indicating).

Q. That’s off the sidewalk what you’re pointing to?

A. Off the little walk up here.
When questioned again about what she tripped over, Ms. Dragna stated:
Q. Okay. Now, in terms of the fall, do you know what caused you to
fall?

A. A trip. I tripped over something.

Q. Do you know what you tripped over?

A. The only thing that was there when I walked -- the only thing that
was there in front of the door was the rug and the threshold. And it
happened, like I said, very quickly. And I – I tripped before I hit
the threshold. So I’m assuming I tripped on the rug. And, like I
said, I had both hands up. You know, just instinct. I mean, I don’t
know. I didn’t -- if the door would have come the other way, I
would have been all right. But I hit the door. And I remember
hitting the threshold with my foot because it hurt. I remember
hitting it and it was, like, Oh, God.

Because I was -- I hit it so hard, I was propelled. I mean, it was
like off of the edge of that thing and past when I looked around.
And I was shocked at how far it had propelled me because of the
proximity to the newspaper machine. I mean, the newspaper
machine, it was here and I’m way -- I’m over there.
After her fall, Ms. Dragna went back inside the Terrytown Café to let an

employee know that she had fallen. The manager was not there at that time, so she

went home. When leaving the Terrytown Café that last time, she did not have any

issues crossing the threshold. She testified that usually there is a rug in front of the

door. She had never tripped over the rug/mat or the threshold before and could not

22-C-241 3

recall ever seeing anyone fall in that area. She returned the next day and spoke to

the manager. The manager did not mention if anybody had fallen before, but Ms.

Dragna said that a waitress who was there at the time said that they have had

people trip and fall “on that thing all the time.”

F & W also attached excerpts from the deposition of Lynne Songy, owner of

the Terrytown Café since August 1986, in support of its motion for summary

judgment. Ms. Songy testified that Terrytown Café, Inc. subleases the building

from Robert Flannery. The lease and sublease, also attached as exhibits to F &

W’s motion for summary judgment, reveal that F &W leased the property to

Robert Flannery, who then subleased it to Terrytown Café, Inc. The lease stated

that Mr. Flannery would make any repairs to the property to “maintain the

premises in the same condition as delivered.” The sublease stated that Terrytown

Café, Inc. agreed to be responsible for “all conditions, obligations, and the

payment of all expenses for which sublessor is responsible in the original lease, to

include, but not limited to taxes, insurance, maintenance and repair.”

Like Terrytown Café, Inc. and Atlantic Casualty Insurance Company, F &

W asserted that Ms. Dragna has only speculated about what caused her to trip and

that is not sufficient to meet her burden at trial. Additionally, F & W argued that it

had no actual or constructive knowledge of a defect in the property since it was not

in custody of the property at the time of the alleged incident. F & W argued that

pursuant to La. R.S. 9:3221, because it had no notice of any defective condition, it

cannot be held liable.

Ms. Dragna filed an opposition to the motion for summary judgment filed by

F & W. In her opposition, Ms. Dragna argued that she identified in her deposition

that the defective front door threshold caused her fall. Further, she argued that the

expert report prepared by Gurtler Bros. Consultants, Inc., dated March 15, 2021

22-C-241 4

and attached to the opposition, supports her claim that a defective condition on the

property caused her injuries.3

In its reply, F & W challenged the expert report, arguing that it did not fit in

any of the express categories of La. C.C.P. art. 966 regarding summary judgment

evidence and should be stricken. F & W argued that the report was not attached to

any deposition in the case and there is no accompanying affidavit to authenticate

the report.

At a hearing on both motions for summary judgment, regarding the cause of

the trip and fall, Ms. Dragna’s counsel argued that a security tape of the incident in

question exists which has never been turned over to him, and this creates doubt and

speculation about what may or may not have happened. Counsel for Terrytown

Café, Inc. stated that the only video that it possessed has already been produced,

and discovery is complete in this matter. Ms. Dragna’s counsel agreed that

discovery was complete.

In open court, the trial court found: 1) Ms. Dragna’s expert letter and report

are impermissible documents under La. C.C.P. art. 966, and therefore, they would

be stricken from the record; 2) even though Ms. Dragna’s opposition did not

specifically oppose Terrytown Café Inc.’s motion for summary judgment, it was

clear from the document itself that it was an opposition to both motions; and 3)

there remained genuine issues of material fact as to whether a dangerous condition

existed and who is responsible for the dangerous condition. The trial court further

stated:

Additionally, only the evidence -- the only evidence that
defendants point to for purpose of summary judgment is the
deposition of the plaintiff. This Court finds that there has not been an

3
Specifically, the experts (Michael Gurtler and Friedrich Gurtler) found that there is an
abrupt drop of over two inches between the door threshold and the sidewalk and there is no
handicap-accessible ramp to the entrance, both of which do not conform with the requirements of
the Americans with Disabilities Act. They found that the abrupt drop outside the front door
threshold resulted in a hazardous condition that caused or contributed significantly to Ms.
Dragna’s fall.

22-C-241 5

ample discovery and well it appears that all discovery is complete. So
if discovery’s complete, then I think we’re ready to move forward
with this case. …

Now [Ms. Dragna’s counsel] appears to believe that there may
be a video out there, which [Terrytown Café Inc.’s counsel] has stated
today that there’s no video, that she’s turned over everything. So if, in
fact, this is where we are it’s possible that the Court – so what I’m
going to do is deny this motion for summary judgment without
prejudice for both defendants in this case, but [Ms. Dragna’s counsel]
seems to think that there is something else out there. [Terrytown Café
Inc.’s counsel] has indicated this is everything. Discovery is
complete. So I don’t know which one it is, if discovery’s complete or
not. But what I’d like to do is schedule a status conference for
determination of cutoff dates and pick a potential trial date and deny
the motion for summary judgment without prejudice and that way if
[Ms. Dragna’s counsel] feels that there’s more discovery out there,
he’ll have a chance to complete that discovery. …

A written judgment denying both motions for summary judgment without

prejudice and striking Ms. Dragna’s exhibit to her opposition to the motions for

summary judgment was signed on March 28, 2022.

F & W now seeks this Court’s supervisory review of the trial court’s denial

of its motion for summary judgment. Finding merit to F & W’s arguments, 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).

LAW AND ANALYSIS

Appellate courts review the granting of a summary judgment de novo using

the same criteria governing the trial court’s consideration of whether summary

judgment is appropriate. Burns v. Sedgwick Claims Mgmt. Servs., 14-421 (La.

App. 5 Cir. 11/25/14), 165 So.3d 147, 152; Duncan v. U.S.A.A. Ins. Co., 06-363

(La. 11/29/06), 950 So.2d 544, 547. A motion for summary judgment should be

granted “if the pleadings, depositions, answers to interrogatories, and admissions,

together with the affidavits, if any, admitted for purposes of the motion for

summary judgment, show that there is no genuine issue as to material fact, and that

mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). The

summary judgment procedure is favored and shall be construed to secure the just,

22-C-241 6

speedy, and inexpensive determination of most actions. La. C.C.P. art. 966(A)(2);

Trench v. Winn-Dixie Montgomery LLC, 14-152 (La. App. 5 Cir. 9/24/14), 150

So.3d 472, 475. However, factual inferences reasonably drawn from the evidence

must be construed in favor of the party opposing the motion and all doubts must be

resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775

So.2d 1049, 1050 (per curiam).

The party moving for summary judgment bears the burden of proof. La.

C.C.P. art. 966(D)(1). However, if the movant will not bear the burden of proof at

trial, the movant’s burden on a motion for summary judgment does not require him

to negate all essential elements of the adverse party’s claim, but rather to point out

to the court that there is an absence of factual support for one or more elements

essential to the claim. Id.; Patrick v. Iberia Bank, 05-783 (La. App. 5 Cir.

3/14/06), 926 So.2d 632, 634. Thereafter, if the adverse party fails to produce

factual support sufficient to establish that she will be able to satisfy her evidentiary

burden at trial, there is no genuine issue of material fact and summary judgment

should be granted. La. C.C.P. art. 966(D)(1).

A decision as to the propriety of a grant of a motion for summary judgment

must be made with reference to the substantive law applicable to the case. Bach v.

Bd. of River Port Pilot Comm’rs, 15-765 (La. App. 5 Cir. 5/12/16), 193 So.3d 355,

362.

To impose liability for an unreasonably dangerous defect, a plaintiff has the

burden to show that the thing was in the custodian’s custody or control, it had a

vice or defect that presented an unreasonable risk of harm, the defendant knew or

should have known of the unreasonable risk of harm, and the damage was caused

by the defect. La. C.C. art. 2317.1; Bryant v. Ray Brandt Dodge, Inc., 19-464 (La.

App. 5 Cir. 3/17/20), 292 So.3d 190, 197.

22-C-241 7

Upon de novo review, we find that Ms. Dragna is unable to meet her burden

of proof to show that there was an unreasonably dangerous condition that caused

her fall. First, based on her deposition testimony, even Ms. Dragna is unsure about

what caused her fall. She alleged in her petition that she tripped over the threshold.

However, during her deposition, she testified that she tripped before she hit the

threshold, and since the only thing in front of the door was the rug/mat, she

“assumed” she tripped on the rug/mat. However, mere conclusory allegations,

improbable inferences, and unsupported speculation will not support a finding of a

genuine issue of material fact. Sears v. Home Depot, USA, Inc., 06-201 (La. App.

4 Cir. 10/18/06), 943 So.2d 1219, 1228, writ denied, 06-2747 (La. 1/26/07), 948

So.2d 168. Even if contained in a deposition, such inferences, allegations, and

speculation are not sufficient to satisfy the opponent’s burden of proof. Id.

Further, Ms. Dragna admitted that she has frequented the Terrytown Café for

years, often three to five times a week. She had never fallen before this incident

and could not recall ever seeing anyone fall before. The morning of the incident,

she crossed the same threshold both before and after the incident with no issues.

Ms. Songy, as owner of the Terrytown Café, testified that no one has ever reported

tripping on or over the rug/mat prior to this incident, and she never received a

complaint about the rug/mat. She also testified that the rug/mat is replaced weekly

to ensure that it stays clean and maintains its traction. Therefore, we find that Ms.

Dragna is unable to produce any evidence other than conclusory and speculative

allegations in her petition and testimony regarding what caused her fall, either the

rug/mat and/or the threshold. Further, she is unable to meet to her burden of proof

to show that there was an unreasonably dangerous condition that caused her fall.

Even so, Ms. Dragna also failed to present any evidence to show that F & W

knew or should have known of the condition which caused the damage, prior to the

incident. Further, to establish liability on the part of a lessor who has passed on

22-C-241 8

responsibility for the condition of his property to his lessee under La. R.S. 9:3221,4

a plaintiff must establish that: (1) he sustained damages; (2) that there was a defect

in the property; and (3) that the lessor knew or should have known of the defect.

Robinson v. Archdiocese of New Orleans, 98-1238 (La. App. 4 Cir. 3/31/99), 731

So.2d 979, 981. The only evidence submitted in support of the opposition for

motion for summary judgment (the expert report) was properly stricken by the trial

court. There was no evidence presented to show that F & W knew or should have

known of the alleged defect. F & W has thus established the absence of factual

support for another essential element of Ms. Dragna’s claim.

At the hearing on the motions for summary judgment, Ms. Dragna’s counsel

argued that discovery remained outstanding, specifically video footage from the

morning of the incident, and this creates doubt and speculation about what may or

may not have happened. Counsel for Terrytown Café, Inc. stated in response that

the only video from the morning of the incident has already been produced, and

that discovery is complete.

While La. C.C.P art 966(A)(3) allows for “an opportunity for adequate

discovery,” the only requirement is that the parties be given a fair opportunity to

present their claim. Simoneaux v. E.I. du Pont de Nemours & Co., Inc., 483 So.2d

908, 913 (La. 1986). Unless the plaintiff shows a probable injustice, a suit should

not be delayed pending discovery when it appears at an early stage that there is no

genuine issue of fact. Id. The mere contention of an opponent that he lacks

sufficient information to defend a summary judgment motion and that he needs

additional time to conduct discovery is insufficient to defeat the motion. Turner v.

4
La. R.S. 9:3221 provides:
Notwithstanding the provisions of Louisiana Civil Code Article 2699, the owner
of premises leased under a contract whereby the lessee assumes responsibility for
their condition is not liable for injury caused by any defect therein to the lessee or
anyone on the premises who derives his right to be thereon from the lessee, unless
the owner knew or should have known of the defect or had received notice thereof
and failed to remedy it within a reasonable time.

22-C-241 9

Bosley Med. Inst., Inc., 19-131 (La. App. 5 Cir. 10/16/19), 280 So.3d 326, 331

(citing Williams v. A Day to Remember Invitations, L.L.C., 06-757 (La. App. 5 Cir.

3/13/07), 956 So.2d 30, 33).

Jurisprudence has identified the following five factors for the court to

consider when addressing an adequate discovery claim: (i) whether the party was

ready to go to trial; (ii) whether the party indicated what additional discovery was

needed; (iii) whether the party took any steps to conduct additional discovery

during the period between the filing of the motion and the hearing on it; (iv)

whether the discovery issue was raised in the trial court before the entry of the

summary judgment; and (v) whether discovery has been hindered by a

circumstance beyond an opponent’s control. Roadrunner Transp. Sys. v. Brown,

17-0040 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1273-74. When discovery is

alleged to be incomplete, a trial court has the discretion either to hear the summary

judgment motion or to grant a continuance to allow further discovery. Id. at 1272.

At the hearing on the motions for summary judgment, counsel for Terrytown

Café, Inc. stated that the trial court instructed the parties to complete discovery

before it would set a hearing on the motions for summary judgment. The hearing

was eventually set, and at the hearing, all the parties, including Ms. Dragna, agreed

that discovery was complete. Further, counsel for Terrytown Café, Inc. stated that

the only video it has of the incident has already been produced to plaintiff. Ms.

Dragna did not raise this discovery issue in her opposition, and there is no evidence

to reflect any steps taken by Ms. Dragna to obtain the alleged video prior to the

hearing on the motions for summary judgment. Further, Ms. Dragna did not

request a continuance of the hearing on the motion for summary judgment in order

for additional discovery to take place. Under these circumstances, we find that Ms.

Dragna was given an adequate opportunity to conduct discovery.

22-C-241 10

Thus upon de novo review, for the foregoing reasons, we find that Ms.

Dragna failed to establish that she will be able to satisfy her evidentiary burden of

proof at trial. F & W is therefore entitled to summary judgment as a matter of law.

DECREE

For the foregoing reasons, F & W’s writ application is granted, the trial

court’s judgment which denied F & W’s motion for summary judgment is

reversed, summary judgment is granted in favor of F & W, and Ms. Dragna’s

claims against F & W are dismissed with prejudice.

WRIT GRANTED; JUDGMENT REVERSED;
SUMMARY JUDGMENT GRANTED;
CLAIMS DISMISSED WITH PREJUDICE

22-C-241 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-241
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
ROBERT M. BRAIWICK, JR. (RESPONDENT) SARAH M. KALIS (RESPONDENT) MICHAEL W. MALDONADO (RELATOR)
THOMAS J. EPPLING (RELATOR)

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