Staci Sanzone and Randy Sanzone Versus City of New Orleans, by and Through the New Orleans Aviation Board, and Ace Property and Casualty Insurance Company

STACI SANZONE AND RANDY SANZONE NO. 24-C-413

VERSUS FIFTH CIRCUIT

CITY OF NEW ORLEANS, BY AND THROUGH COURT OF APPEAL
THE NEW ORLEANS AVIATION BOARD, AND
ACE PROPERTY AND CASUALTY STATE OF LOUISIANA
INSURANCE COMPANY

September 17, 2024

Linda Wiseman
First Deputy Clerk

IN RE CITY OF NEW ORLEANS, BY AND THROUGH THE NEW ORLEANS AVIATION BOARD, AND
ACE PROPERTY AND CASUALTY INSURANCE COMPANY

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE LEE V. FAULKNER,
JR., DIVISION "P", NUMBER 828-251

Panel composed of Judges Susan M. Chehardy,
John J. Molaison, Jr., and Scott U. Schlegel

WRIT GRANTED IN PART; DENIED IN PART

In this writ application, the relators/defendants seek a review of the trial
court’s rulings, which denied their motion for summary judgment and found
admissible specific exhibits offered by the plaintiffs in opposition to the motion for
summary judgment. For the following reasons, we grant the writ, in part, on the
issue of the plaintiffs’ exhibit showing post-accident remedial measures by the
defendants. In all other respects, we deny relief.

The significant underlying facts in this civil matter are largely undisputed.
On the evening of May 14, 2021, the plaintiff, Staci Sanzone, tripped and fell on an
uneven section of the parking lot walkway at the New Orleans Louis Armstrong
International Airport (“the Airport”), owned by the City of New Orleans, operated
by the New Orleans Aviation Board and insured by Ace Property and Casualty
Insurance Company (“the defendants.”) The Airport admits that it had notice of the
uneven condition of the walkway before the incident and had previously placed a
single orange traffic cone on the section of pavement that immediately preceded
the drop-in surface continuity. In their motion for summary judgment, the
defendants contended that the plaintiffs could not prove that the differing height
levels in the sidewalk presented an unreasonable risk of harm and also could not
prove that the defendants failed to fulfill their duty to warn by placing an orange
cone by the change in sidewalk height.

24-C-413

We first address the evidentiary issues raised in the application. The
defendants contend the trial court erred by denying the motion to strike the
plaintiffs’ expert report as untimely produced.1 However, as accurately observed
by the trial judge, the matter had no trial setting nor cut-off dates for discovery
between the parties. “[T]he trial court has broad discretion when regulating pre-
trial discovery, which will not be disturbed on appeal [in absence of] a clear
showing of abuse.” Trichell v. McClure, 21-1240 (La. App. 1 Cir. 4/8/22), 341
So.3d 856, 862. On the showing made, we do not find that the defendants have
shown an abuse of the trial court’s discretion in allowing the plaintiffs to include
their expert’s report in opposition to the motion for summary judgment.

Next, the defendants argue that the trial court erred in considering as
evidence a plaintiff’s exhibit identified as “Photograph 5,” which is bates stamped
“Sanzone 00014,” that purports to show the site of Mrs. Sanzone’s accident after
the airport had made it level. The defendants contend that the photograph is not
authenticated correctly and is impermissible as evidence of subsequent measures.
La. C.E. art. 407 states:

In a civil case, when, after an event, measures are taken which,
if taken previously, would have made the event less likely to occur,
evidence of the subsequent measures is not admissible to prove
negligence or culpable conduct in connection with the event. This
Article does not require the exclusion of evidence of subsequent
measures when offered for another purpose, such as proving
ownership, authority, knowledge, control, or feasibility of
precautionary measures, or for attacking credibility.

Here, the photograph at issue correlates to the statement in the plaintiff’s affidavit,
“The photograph contained in bated [sic] stamped Sanzone 00014 is a true and
accurate representation of the scene of the subject fall in July 2022 after the
sidewalk was corrected and fixed.” Without an explanation of the purpose of the
photo, this would appear to be the type of evidence inadmissible under La. C.E.
art. 407. Accordingly, we grant the writ to the extent that the trial court found the
picture admissible in the context of the plaintiffs’ opposition to the motion for
summary judgment, insofar as the evidence of the subsequent remedial measure
was presented to prove negligence or culpable conduct.

We now consider the denial of the defendants’ motion for summary
judgment itself. A motion for summary judgment is a procedural device used to
avoid a full-scale trial where there is no genuine issue of material fact. Bell v.
Parry, 10-369 (La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment
procedure secures every action's just, speedy, and inexpensive determination. La.
C.C.P. art. 966(A)(2). The motion “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). In this case, the defendants argue that the plaintiffs cannot prove two
elements of negligence: that the differing height levels in the sidewalk presented
an unreasonable risk of harm and that the defendants did not fulfill their duty to
warn by placing an orange cone by the change in sidewalk height.

1
The defendants do not assert that the plaintiffs’ opposition itself was untimely filed under La. C.C.P. art 966(B)(2).
2

While there are several photographs of the uneven pavement where Mrs.
Sanzone fell and approximations of the height differences in the sections,2 there is
nothing in the record to demonstrate that the plaintiffs or the defendants took
precise objective measurements. This information is vital, as courts use the
difference in elevation as a factor to determine whether a risk is unreasonable. The
absence of a concrete measurement could undoubtedly qualify as a genuine issue
of material fact. However, repairing the sidewalk by the airport makes an actual
measurement impossible. Even accepting the airport’s measurements as accurate,
elevations of over 3 inches have been deemed unreasonable risks. See, Butkiewicz
v. Evans, 06-236 (La. App. 5 Cir. 9/26/06), 943 So.2d 509, 514. We, therefore,
find this to be a material issue of fact that precludes summary judgment.

While it is undisputed that the Airport placed an orange traffic cone on the
sidewalk to draw attention to the drop in elevation, an issue of material fact
remains whether this, alone, provided sufficient notice and warning to persons who
used the walkway.3 In her deposition testimony, Mrs. Sanzone stated that orange
traffic cones were a common sight at the airport, and the cone in question gave no
unique indication of a hazard. The plaintiff’s export report concludes that the
presence of the cone in a parking garage setting could have multiple meanings,
including blocking off an area for striping and instructing persons not to park in a
specific location. On the showing made, we find no error in the trial court’s ruling
that sufficient notice of the hazard at issue is a question of material fact that
precludes summary judgment.

Accordingly, for the previous reasons, we find that the photo of the airport’s
remedial measures as offered in repairing the accident site was improper and
should not be considered. We grant the application in that regard. In all other
respects, we deny relief on the showing made.

Gretna, Louisiana, this 17th day of September, 2024.

JJM
SMC
SUS

2
A report by airport employee Maria Belinski estimated that the location had an “uneven ground surface of about
3.5".” It appears from the plaintiff’s expert report that the sidewalk had been leveled and repaired at the time of his
inspection, and he therefore relied on the airport’s own assessment that the drop was 3 ½ inches. Mrs. Sanzone
stated in her deposition that the drop was closer to 6 inches in height.
3
In another case involving the use of cones to warn of a hazardous condition, Green v. Brookshire Grocery Co.,
53,066 (La. App. 2 Cir. 9/25/19), 280 So.3d 1256, 1261, the Second Circuit found that a genuine issue of fact
existed of whether a cone’s placement at a particular location was sufficient to warn patrons of a hazardous
condition on the floor.

3

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL 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 DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 09/17/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-C-413
E-NOTIFIED
24th Judicial District Court (Clerk)
Hon. Lee V. Faulkner, Jr. (DISTRICT JUDGE)
Scott C. Stansbury James M. Garner

MAILED
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Attorney at Law
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