Tequilla Dorsey v. Pier Landings Shreveport, L.L.C. c/o Sachs Investing Company, the City of Shreveport, U.L. Coleman Company, Ltd., Amtrust Insurance Company of Kansas, Inc., and Associated Industries Insurance Company, Inc.

Judgment rendered October 12, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,761-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

TEQUILLA DORSEY Plaintiff-Appellant

versus

PIER LANDINGS SHREVEPORT, Defendants-Appellees
L.L.C. C/O SACHS INVESTING
COMPANY, THE CITY OF
SHREVEPORT, U.L. COLEMAN
COMPANY, LTD, AMTRUST
INSURANCE COMPANY OF
KANSAS, INC., AND
ASSOCIATED INDUSTRIES
INSURANCE COMPANY, INC.

*****
Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 595854

Honorable Ramon Lafitte, Judge

*****

JACK BAILEY LAW CORPORATION Counsel for Appellant,
By: Jack M. Bailey, Jr. Tequilla Dorsey
Jack M. Bailey, III

RON CHRISTOPHER STAMPS, LLC Counsel for Appellee,
By: Ron Christopher Stamps City of Shreveport
Britney A. Green
Dale Lewis Sibley

*****

Before COX, STEPHENS, and ROBINSON, JJ.

STEPHENS, J.

On October 1, 2015, plaintiff, Tequila Dorsey, while pushing her

infant son in his stroller, was walking from her apartment in the Summer

Trace Apartments to the Wal-Mart located in the Shreve City Shopping

Center on Shreveport Barksdale Highway in Shreveport, Louisiana. There is

no sidewalk, so she was walking in a grassy drainage area between the Pier

Landing apartment complex and Knight Street. The area is frequently used

by residents of the apartment complexes on Knight Street to access

businesses located in the shopping center down the street. Ms. Dorsey fell in

a hole in an open ditch area in front of the Pier Landing apartment complex

while walking to Wal-Mart and sustained serious injuries, including a

broken leg.

Ms. Dorsey filed suit against, inter alia, the City of Shreveport (“the

City”), seeking damages for the injuries she received as a result of her fall.

The subject hole was located on property owned and maintained by the City.

A water/sewer line runs for some distance, including underneath the area in

which the hole was located, and the City owns and maintains the

water/sewer line. In her petition, Ms. Dorsey’s allegations include that: the

hole into which she fell and sustained her injuries was a dangerous condition

(not open and obvious as it was covered with grass) which the City knew or

should have known about and/or created on property in its custody and

control; it was responsible for maintaining and keeping the property free of

dangerous hazards; and, the City breached its duty to exercise reasonable

care by performing inspections and taking other actions to protect her from

injuries resulting from the hazardous condition they allowed to exist on their

property.

The City answered Ms. Dorsey’s petition, and both sides engaged in

discovery. The City filed a motion for summary judgment, asserting that

because Ms. Dorsey is unable to show that the City had actual or

constructive notice of the hole into which she stepped, she is unable to prove

all necessary elements of her claim against the City. Thus, based on the

results of the parties’ discovery, there are no genuine issues of material fact

as to the issue of the City’s notice, and the City is entitled to summary

judgment in its favor.

Ms. Dorsey opposed the City’s motion for summary judgment and

filed a cross-motion for summary judgment asking for judgment in her favor

on the issue of liability (although she also sought an award of damages

therein).

According to Ms. Dorsey, evidence produced by the City during

discovery undisputedly showed that it had actual knowledge of a defect or

problem in the water/sewage line as early as September 14, 2015. In

support, she attached the affidavit and expert report of her witnesses who

opined that such a defect can create sinkholes in ground above a water/sewer

line, and that such a shift was the most likely cause of the sinkhole into

which Ms. Dorsey fell. She argued the foreseeability of the risk to the

public caused by the shifting of earth from a water leakage and compared the

cost to repair against the risk of harm to individuals. She then pointed out

that the City did not even attempt to make any repairs or warn the public of

any issue posed by the faulty water/sewer line. Ms. Dorsey urged the trial

court to find the City solely liable for the injuries and damages sustained by

her and award her $250,000, inclusive of all damages and costs.

2

The City filed an opposition to Ms. Dorsey’s motion for summary

judgment, pointing out that none of the events that she claimed constituted

“notice” of the hole were sufficient to put the City on notice of that alleged

defect or condition. Three of the calls were about a sewage leak in a ditch

near, but not at, 3131 Knight Street. Not only were these calls about a

different issue (sewage), but they were at a different address altogether,

urges the City. There is no documentation of anyone ever notifying the City

of the existence of a hole. Furthermore, her expert’s conclusion about a

“sinkhole” is irrelevant to the case at hand, urges the City.

Following a hearing held on both motions for summary judgment, the

trial court denied the motion for summary judgment filed by Ms. Dorsey and

granted the motion for summary judgment filed by the City. It is from this

adverse judgment that Ms. Dorsey has appealed.

DISCUSSION

Applicable Legal Principles

A motion for summary judgment is a procedural device used when

there is no genuine issue of material fact for all or part of the relief prayed

for by a litigant. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So. 2d

880; Driver Pipeline Co. v. Cadeville Gas Storage, LLC, 49,375 (La. App. 2

Cir. 10/1/14), 150 So. 3d 492, writ denied, 14-2304 (La. 1/23/15), 159 So.

3d 1058. Summary judgment procedure is designed to secure the just,

speedy and inexpensive determination of every action, except those

disallowed by La. C.C.P. art. 969. The procedure is favored and shall be

construed to accomplish those ends. La. C.C.P. art. 966(A)(2).

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

memorandum, and supporting documents show there is no genuine issue as
3

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

C.C.P. art. 966(A)(3). A material fact is one that potentially ensures or

precludes recovery, affects the ultimate success of the litigant, or determines

the outcome of the dispute. Because it is the applicable substantive law that

determines materiality, whether a particular fact in dispute is material for

summary judgment purposes can be seen only in light of the substantive law

applicable to the case. Jackson v. City of New Orleans, 12-2742, p. 6 (La.

1/28/14), 144 So. 3d 876, 882; Richard v. Hall, 03-1488, p. 5 (La. 4/23/04),

874 So. 2d 131, 137.

A genuine issue is one about which reasonable persons could

disagree. Suire v. Lafayette City-Parish Consolidated Government, 04-

1459, p. 11 (La. 4/12/05), 907 So. 2d 37,48, citing Smith v. Our Lady of the

Lake Hospital, Inc., 93-2512, p. 26 (La. 7/5/94), 639 So. 2d 730,

751; Franklin v. Dick, 51,479 (La. App. 2 Cir. 6/21/17), 224 So. 3d 1130. In

determining whether an issue is genuine, a court should not consider the

merits, make credibility determinations, evaluate testimony, or weigh

evidence. Suire, supra; Chanler v. Jamestown Insurance Co., 51,320 (La.

App. 2 Cir. 5/17/17), 223 So. 3d 614, writ denied, 17-01251 (La. 10/27/17),

228 So. 3d 1230.

Louisiana C.C.P. art. 966(D)(1) provides:

The burden of proof rests with the mover. 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. 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.
4

When the motion for summary judgment is made and supported as

provided in La. C.C.P. art. 967(A), the adverse party may not rest on the

mere allegations or denials of his pleading, but his response, by affidavits or

as otherwise set forth in La. C.C.P. art. 967(A), must set forth specific facts

showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). If he

does not so respond, summary judgment, if appropriate, shall be rendered

against him. Id.

The only documents that may be filed in support of or in opposition to

a motion for summary judgment are pleadings, memoranda, affidavits,

depositions, answers to interrogatories, certified medical records, written

stipulations, and admissions. La. C.C.P. art. 966(A)(4). Louisiana C.C.P.

art. 967(A) provides:

Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts s would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. The
supporting and opposing affidavits of experts may set forth
such experts’ opinions on the facts as would be admissible in
evidence under Louisiana Code of Evidence Article 702, and
shall show affirmatively that the affiant is competent to testify
to the matters stated therein. Sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be
attached thereto or served therewith. The court may permit
affidavits to be supplemented or opposed by depositions,
answers to interrogatories, or by further affidavits.

Louisiana C.C.P. art. 966 (D)(2) provides:

The court may consider only those documents filed in support
of or in opposition to the motion for summary judgment and
shall consider any documents to which no objection is made.
Any objection to a document shall be raised in a timely filed
opposition or reply memorandum. The court shall consider all
objections prior to rendering judgment. The court shall
specifically state on the record or in writing which documents,
if any, it held to be inadmissible or declined to consider.

5

Appellate courts review motions for summary judgment de novo,

using the same criteria that govern the trial court’s consideration of whether

summary judgment is appropriate. Leisure Recreation & Entertainment,

Inc. v. First Guaranty Bank, 21-00838 (La. 3/25/22), 339 So. 3d 508;

Peironnet v. Matador Resources Co., 12-2292 (La. 6/28/13), 144 So. 3d

791; Elliott v. Continental Casualty Co., 06-1505 (La. 2/22/07), 949 So. 2d

1247; Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So. 2d

1180; Davis v. Whitaker, 53,850 (La. App. 2 Cir. 4/28/21), 315 So. 3d 979.

In order to prove a public entity is liable for damages caused by a

thing, the plaintiff must establish: (1) custody or ownership of the defective

thing by the public entity; (2) the defect created an unreasonable risk of

harm; (3) the public entity had actual or constructive notice of the defect; (4)

the public entity failed to take corrective action within a reasonable time;

and (5) causation. La. R.S. 9:2800; Shear v. Trail Blazers, Inc., 21-00873

(La. 12/21/21), 329 So. 3d 819, 822; Chambers v. Village of Moreauville,

11-898 (La. 1/24/12), 85 So. 3d 593, 597; Lasyone v. Kansas City Southern

R.R., 00-2628 (La. 4/3/01), 786 So. 2d 682, 690; Minor v. Red River Parish

Police Jury, 54,182 (La. App. 1/12/22), 333 So. 3d 549; Harris v. City of

Shreveport, 53,101 (La. App. 2 Cir. 4/22/20), 295 So. 3d 978, 982. Failure

to meet any one statutory element will defeat a negligence claim against a

public entity. Id.; Breitling v. Shreveport, 44,112 (La. App. 2 Cir. 5/13/09),

12 So. 3d 457.

Before a municipality can be held liable for injuries resulting from a

defect in the condition of a thing in its custody, the municipality must have

had actual or constructive notice of the particular defect that gave rise to or

caused the injury. Harris, supra; Stevens v. City of Shreveport, 49,437 (La.
6

App. 2 Cir. 11/19/14), 152 So. 3d 1071, writ denied, 15-0197 (La. 4/17/15),

168 So. 3d 399, cert. denied, 577 U.S. 844, 136 S. Ct. 154, 193 L. Ed. 2d

114 (2015). Actual notice has been defined as knowledge of dangerous

defects or conditions by a corporate officer or employee of the public entity

having a duty either to keep the property involved in good repair or to report

defects and dangerous conditions to the proper authorities. Jones v.

Hawkins, 98-1259, p. 6 (La. 3/19/99), 731 So. 2d 216; Harris, supra at p. 7,

295 So. 3d at 983.

Under La. R.S. 9:2800(D), constructive notice is defined as the

existence of “facts which infer actual knowledge.” This definition allows

for the inference of actual knowledge to be drawn from the facts

demonstrating that the defective condition had existed for such a period of

time that it should have been discovered and repaired if the public entity had

exercised reasonable diligence. Johnson v. City of Bastrop, 41,240, p. 4 (La.

App. 2 Cir. 8/1/06), 936 So. 2d 292, 294. See also Williams v. Ruben

Residential Properties, 46,040 (La. App. 2 Cir. 3/2/11), 58 So. 3d 534. The

plaintiff must make a positive showing of the existence of the condition

prior to the fall. Harris, supra; Ton v. Albertson’s, LLC, 50,212 (La. App. 2

Cir. 11/18/15), 182 So. 3d 246, writ denied, 15-2320 (La. 2/5/16), 186 So.

3d 1169.

The periodic inspection of one’s property for defective conditions is

intertwined with the concept of constructive notice. Minor, supra. Lack of

inspection is only one factor by which the fact finder may determine that the

defect existed for such a length of time that the public entity should have

discovered the defect with the exercise of reasonable care. Id.; Graham v.

7

City of Shreveport, 44,994 (La. App. 2 Cir. 1/27/10), 31 So. 3d 526, writ

denied, 10-0440 (La. 4/30/10), 34 So. 3d 294.

Analysis

Trial Court’s Grant of Summary Judgment Motion Filed by the City

According to Ms. Dorsey, the trial court erred in granting summary

judgment in favor of the City. Ms. Dorsey contends that the trial court erred

in finding that the City met its burden of establishing that it did not have

actual or constructive notice of the hole into which she fell, and that there

were no genuine issues of material fact related to this requirement of her

claim against the City for liability under La. R.S. 9:2800. She further takes

issue with the fact that the trial court disregarded the expert witness opinion

evidence she produced that was uncontroverted by any such evidence by the

City.

On the other hand, the City asserts that the trial court did not err in

granting its summary judgment motion and dismissing Ms. Dorsey’s claims

against it based upon its finding that there was no genuine issue of material

fact that the City did not have actual or constructive notice of the hole in the

ditch and further, that pedestrians are not expected to be walking in a ditch.

The record, i.e., the parties’ depositions, affidavits, or attachments

thereto, either in support of or in opposition to, the City’s or Ms. Dorsey’s

motion for summary judgment, establishes the following facts. The hole

into which Ms. Dorsey stepped while walking to the store was on property

owned and maintained by the City. This area is a drainage area sometimes

used by pedestrians to walk from apartment complexes located on Knight

Street to local businesses as there is no sidewalk. The evidence also

establishes that there is a sewer line that runs a long distance underneath the
8

drainage area. On the opposite side of the street (the side across from Ms.

Dorsey’s accident) runs a water main line. There is no municipal address

assigned to this specific area.

As noted previously, Ms. Dorsey lived at the Pier Landing

Apartments at 3131 Knight Street. The City received a telephone call on

September 14, 2015, from Sharon Watson, a resident at 3201 Knight Street,

Summer Trace Apartments, that there was sewage on the ground in front of

that complex. In response to that complaint, on the next day, September 15,

2015, City employee Larry Henderson was dispatched to 3201 Knight Street

to check the area. Specifically, Work Order #178237 states, “check leak in

ditch.” Henderson mistakenly closed out Work Order #178237 with the

comment, “No city water main here to check leak.” Unfortunately, the

water line was across the street from the apartment complex—the sewage

was coming out of the sewer line that ran under the ditch in front of the

apartment complex. The city worker did not find the sewage leak since he

did not even identify or note that there was an underground sewer line

running in front of the apartment complex at 3201 Knight Street.

At 9:00 a.m. on September 18, 2015, Sharon Watson, the resident who

had previously contacted the City about sewage on the ground in front of the

complex at 3201 Knight Street, made a second call to the City, presumably

about the sewage that had not been addressed. The City operator referenced

the same ticket number, #178237. Ms. Watson made a third call to the City

at 2:44 p.m. on September 18, 2015, this time leaving her address and

telephone number. Within two weeks, on October 1, 2015, Ms. Dorsey fell

into a hole in the sewage drainage area in front of the Pier Landing

9

apartments at 3191 Knight Street, approximately 200 feet away from the

apartment complex located at 3201 Knight Street.

In their depositions, both the City’s Superintendent of Streets and

Drainage, Ernie Negrete, and its Director of the Water and Sewerage Dept.,

Barbara Featherston, stated that the sewer line ran for quite a long distance,

including directly under the area in which the hole was located. They also

acknowledged that a main sewer line ran within 10-15 feet of the area, and

that this main sewer line connected to the regular sewer line buried beneath

the ditch right of way. Both Negrete and Ms. Featherston agreed that the

main water line was located on the opposite side of the street.

Ms. Featherston testified that the City’s Public Works Department

records were “migrated” from an old work order system approach to a new

system called “City Works,” which resulted in some “loss” of earlier data.

She also noted that the City does not have a regular inspection program, but

does have areas they do preventative and routine maintenance on—for

example, in known areas that require repairs or those known to have back-

ups or clogs, including those caused by grease. When asked about any

records regarding inspections or maintenance done in the area of Knight

Street, Ms. Featherston specifically noted that the apartment complex at

3131 Knight Street (which is where Ms. Dorsey lives) has had a lot of issues

with grease, and the City is called out “a lot” to that area.

According to Ms. Featherston, a dye test was performed on the sewer

line in the area of the hole in late 2015. Dates were not exactly clear

because of the changeover to the new system regarding complaints and work

orders. Ms. Featherston noted, “I can’t state for sure that this is the same

sinkhole, but it’s within that area. You know, it’s manhole 10 and 13 are,
10

you know a thousand feet apart.” She also confirmed that the dye tests are

performed on the sewer lines if the City receives notice of a sinkhole located

within 20 feet of their pipe.

Ms. Featherston said the City “disputed” that the responsibility for

addressing the refill or repair of this hole was within the purview of either

the Water and Sewer Department or the Streets and Drainage Department,

and it had not been repaired or filled as of June 3, 2019. She described the

situation as a “lack of communication.” According to Ms. Featherston, the

City had not identified the cause of the hole as of June 3, 2019, and had not

filled it.

Ms. Dorsey’s expert, Dr. W. Tom Witherspoon, a licensed

professional engineer, stated in his affidavit that the hole likely progressed

over a long period of time. Dr. Witherspoon also opined that such a hole can

be caused by either a break in a water line or a collapse or drying out of the

surface soil in the area where there is a drainage swale. According to Dr.

Witherspoon, the hole, which was in the City right of way and therefore the

responsibility of the Dept. of Streets and Drainage Public Works to maintain,

should have been noticed by the City, who had the responsibility to fill and

properly compact the hole. Dr. Witherspoon also noted that the whoever

was responsible for mowing the area should have noticed the hole when

performing maintenance of the ditch area. As Negrete testified in his

deposition, the City’s Streets and Drainage Department cut and maintained

the roadside ditch area, and whenever there was a water leak or

“something,” that department would notify the Water and Sewerage

Department. However, Negrete also stated that the Pier Landing Apartment

complex “took care” of the area, which was “pretty well manicured.”
11

Based upon our de novo review, we find that there are multiple factors

that bear upon the issue of constructive notice in this case which, under the

particular circumstances involved herein, involve genuine issues of material

fact and as such, cause this matter to be inappropriate for summary

judgment. See, Minor, supra; Harris, supra.

First, the evidence presented by Ms. Dorsey in opposition to summary

judgment showed that the City had actual notice of leaking sewage close to

the ditch in which Ms. Dorsey fell two weeks prior to her accident. The

worker who responded to Ms. Watson’s complaints about the sewage

leakage at the Autumn Trace apartments approximately 200 feet from the

hole into which Ms. Dorsey fell less than two weeks later did not exercise

due diligence to determine the cause or location of the leaking sewage. A

rational person could conclude that the two addresses, 3201 and 3131 Knight

Street, were close enough in proximity that the hole could have been

discovered with reasonable diligence, and a reasonable trier of fact could

find that the connection between the sewage and the hole was sufficient to

put the City on notice of the defective condition. See, Harris, supra.

Additionally, Ms. Dorsey attached in support of her opposition to the

City’s motion the expert report and affidavit of Dr. Witherspoon, a

professional engineer. It was Dr. Witherspoon’s opinion that the hole into

which Ms. Dorsey fell progressively developed over time, likely caused by a

leak in the City’s sewer line that ran underneath the City’s right of way. Dr.

Witherspoon further opined that as the hole progressed over time, the City

had sufficient time to reasonably inspect, find, and identify it, as the hole

was in the City’s right of way, with the City’s sewer line running

underneath.
12

This evidence was not objected to or contradicted by expert testimony

offered by the City. Instead, the City’s evidence revealed the lack of an

inspection program, a haphazard record-keeping system, and an apparently

lackadaisical approach to citizen reports of potential problems or defects.

For example, the deposition testimony of the City representatives of the two

departments involved—the Dept. of Streets and Drainage/Public Works and

the Dept. of Water and Sewerage—showed that there was confusion

regarding which department was even responsible for fixing the hole.

Negrete stated that it was not the responsibility of the Dept. of Streets and

Drainage, while Ms. Featherston testified that there was poor

communication, and one department had not acted, wrongfully believing that

the other department was responsible for the work. All of these, taken

together, support Ms. Dorsey’s claim that the facts of this case support an

inference of actual knowledge that the defective condition had existed for

such a period of time that it should have been discovered and repaired if the

public entity had exercised reasonable diligence. See La. R.S. 9:2800(D).

When the party opposing the summary judgment motion submits

expert opinion evidence that would be admissible and is sufficient to allow a

reasonable fact finder to conclude that the expert’s opinion on a material fact

more likely than not is true, the court should deny the summary judgment

motion. Willis v.Medders, 00-2507 (La. 12/8/00), 775 So. 2d 1049; Harris,

supra. See also, Marks v. Schultz, 20-0197 (La. App. 1 Cir. 12/10/20), 316

So. 3d 534. In light of the foregoing, we find that the trial court erred in

failing to find that Dr. Witherspoon’s opinion created genuine issues of

material fact sufficient to defeat the City’s motion for summary judgment.

13

Trial Court’s Denial of Summary Judgment Motion Filed by Ms. Dorsey

Ms. Dorsey also contends that the trial court erred in denying her

cross-motion for summary judgment on the issue of liability. We find no

error in the trial court’s determination that Ms. Dorsey did not establish all

of the elements of her La. R.S. 9:2800 claim against the City. This Court’s

reversal of the City’s motion for summary judgment is based solely upon our

determination that the trial court erred in finding that Ms. Dorsey did not

establish actual or constructive notice on the part of the City, and there were

genuine issues of material fact related to this issue to be determined by the

factfinder at trial, not by the judge on summary judgment. The record is

devoid of evidence of any of the other elements necessary for Ms. Dorsey to

establish her claim against the City, such as whether the defect presented an

unreasonable risk of harm; whether the City failed to take corrective action

within a reasonable time; and causation. This assignment of error is without

merit.

CONCLUSION

For the reasons set forth above, that part of the trial court’s judgment

granting the motion for summary judgment filed by the defendant, the City

of Shreveport, is reversed. That part of the trial court’s judgment denying

the motion for summary judgment filed by the plaintiff, Tequila Dorsey, is

affirmed. This matter is remanded for further proceedings consistent with

this opinion. Costs of this appeal, $3,681.02, are assessed equally to the

parties.

REVERSED IN PART, AFFIRMED IN PART, REMANDED.

14