Jerry Ramos v. State of La, Thru the Dotd

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1389

JERRY RAMOS

VERSUS

STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 6242
HONORABLE WARREN DANIEL WILLETT, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and J.
David Painter, Judges.

Amy, J., concurs in the result and assigns reasons.

AFFIRMED.

Robert Lawrence Beck, Jr.
Law Offices of Robert L. Beck, Jr., L.L.C.
P. O. Drawer 12850
Alexandria, LA 71315-2850
Telephone: (318) 445-6581
COUNSEL FOR:
Plaintiff/Appellant - Jerry Ramos

Ronald J. Fiorenza
Provosty, Sadler, DeLaunay, Fiorenza & Sobel
P. O. Drawer 1791
Alexandria, LA 71309-1791
Telephone: (318) 445-3631
COUNSEL FOR:
Defendant/Appellee - State of Louisiana, Through the Department of
Transportation and Development

Laurel Irene White
Assistant Attorney General
P. O. Box 1710
Alexandria, LA 71309
Telephone: (318) 487-5944
COUNSEL FOR:
Defendant/Appellee - State of Louisiana, Through the Department of
Transportation and Development

THIBODEAUX, Chief Judge.

Plaintiff, Jerry Ramos, filed this suit against the State of Louisiana,

through the Department of Transportation and Development (DOTD) after he fell

from a rope swing into a creek located on a right-of-way owned by the DOTD, and

was rendered a quadriplegic. He sued the DOTD under theories of negligence and

strict liability. The DOTD filed a Motion for Summary Judgment on the basis of a

lack of duty which the trial court granted. Mr. Ramos appeals that judgment. For

the following reasons, we affirm.

I.

ISSUES

We will consider whether the trial court erred in granting summary

judgment to the DOTD.

II.

FACTS AND PROCEDURAL HISTORY

In 1986, Mr. Ramos and a friend, Janice Box, accessed Big Creek in

an area known as Second Bridge near Pollock, Louisiana. Second Bridge is

located on a right-of-way owned by the DOTD. Mr. Ramos and Ms. Box swam in

the creek for several minutes and observed that the creek had shallow, ankle-deep

water near the edges and deeper, chest-deep water in the center. They then noticed

a rope swing attached to a tree nearby and decided to swing from the rope into the

water. They each swung several times, always landing safely in the chest-deep

water. On Mr. Ramos’s final swing, the rope slipped from his grasp before he

intended and he landed headfirst into the shallowest part of the creek. Mr. Ramos

became a quadriplegic after sustaining a spinal cord injury as a result of his fall.

He sued the DOTD and others for negligence and strict liability. 1 Since this case

has been active for over twenty years, it has an extensive procedural history. This

court explained that history in a prior opinion in this case, Ramos v. State, ex rel.

Dep’t of Transp. and Dev., 07-851 (La.App. 3 Cir. 2/6/08), 977 So.2d 1066, writ

denied, 08-1074 (La. 9/26/08), 992 So.2d 986, and we will not recount it here. The

subject of this appeal is the DOTD’s most recent Motion for Summary Judgment.

The trial court granted the motion and dismissed Mr. Ramos’s action. Mr. Ramos

appeals that judgment.

III.

LAW AND DISCUSSION

Standard of Review

We review a grant of summary judgment de novo “using the same

criteria that govern the trial court’s consideration of whether summary judgment is

appropriate, i.e., whether there is a genuine issue of material fact and whether the

mover is entitled to judgment as a matter of law.” Supreme Servs. and Specialty

Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. If

the mover will not bear the burden of proof at trial on the matter, then he must only

point out a lack of factual support for one or more elements essential to the non-

mover’s case. La.Code Civ.P. art. 966(C)(2); Simien v. Med. Protective Co., 08-

1185 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-1488 (La. 10/2/09),

18 So.3d 117. Once the mover has made a prima facie case that the motion should

be granted, the non-mover must then present evidence sufficient to show a genuine

1
The other defendants who were originally named in this lawsuit have been dismissed.

2

issue of material fact. Id. If the non-mover fails to present sufficient factual

evidence that he might be able to meet his burden of proof, the motion should be

granted. Id.

Discussion

Mr. Ramos alleges that the DOTD had a duty to maintain its right-of-

way in a reasonably safe manner and that it breached that duty by allowing the

public to use the creek and rope swing, which presented an unreasonable risk of

harm. The DOTD, on the other hand, argues that it had no duty to protect Mr.

Ramos from consequences resulting from his own failure to maintain a sufficient

grasp of the rope. Alternatively, the DOTD argues that the scope of its duty does

not extend to these circumstances.

In a tort against the DOTD, the plaintiff has the burden of proving

four elements: (1) the property on which the accident occurred was in the DOTD’s

custody or control; (2) the property was defective because it had a condition that

created an unreasonable risk of harm; (3) the DOTD had actual or constructive

notice of this defect; and (4) the defect was the cause-in-fact of the injury. Toston

v. Pardon, 03-1747 (La. 4/23/04), 874 So.2d 791.2 Further, the DOTD has a “duty

to maintain the public highways in a condition that is reasonably safe for persons

exercising ordinary care and reasonable prudence.” Id. at 799.

On appeal, the DOTD does not dispute that it had custody or control

of Second Bridge, or that it had actual or constructive notice of the rope swing.

Further, Mr. Ramos’s injury resulted from using the rope swing. The only issues

presented are whether the DOTD owed a duty to Mr. Ramos, and whether the

2
Mr. Ramos brought this suit under theories of both negligence and strict liability;
however, the analysis under either theory is the same. Id.

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property had a condition that created an unreasonable risk of harm. The

unreasonable risk of harm analysis in a DOTD case is similar to the duty-risk

analysis, or scope of the duty analysis, in a typical negligence case. See Oster v.

State ex rel, Dep’t of Transp. and Dev., 582 So.2d 1285 (La.1991). It is a question

of fact that depends on the particular circumstances of the case. Brooks v. State ex

rel. Dep’t of Transp. and Dev., 10-1908 (La. 7/1/11), 74 So.3d 187. We find that

the property did not have such a condition, and that the DOTD did not owe a duty

to Mr. Ramos.

Unreasonable Risk of Harm

Mr. Ramos argues that the presence of the rope swing above the

shallow creek created an unreasonable risk of harm that the DOTD had a duty to

remedy, warn against, or block from public use. We disagree. Our courts employ

a risk-utility balancing test to determine whether a condition creates an

unreasonable risk of harm. Pryor v. Iberia Parish Sch. Bd., 10-1683 (La. 3/15/11),

60 So.3d 594. The factors are (1) the utility of the thing; (2) the likelihood and

magnitude of harm, which includes the obviousness or apparentness of the

condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff’s

activity, or whether the activity was inherently dangerous. Id.; Pitre v. La. Tech

Univ., 95-1466 (La. 5/10/96), 673 So.2d 585. All of these factors favor granting

summary judgment to the DOTD.

We examine the social utility of Second Bridge and Big Creek as a

whole, not the utility of the rope swing specifically. Pryor, 60 So.3d 594. Outdoor

areas open to the public provide an important social function; recreational activities

are vital to many communities. In our warm climate, public swimming areas are

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especially appreciated. The public derives a great benefit from public lakes,

creeks, and rivers. Consequently, the social utility of Second Bridge is

considerable.

The likelihood that harm will occur at Second Bridge is slight. Mr.

Ramos and Ms. Box, along with many others, previously used the creek several

times without incident. The magnitude of harm, however, was substantial, as Mr.

Ramos was rendered a quadriplegic. Further, Mr. Ramos argues that we should

consider another accident that occurred at Second Bridge in 1977 as evidence of

the likelihood of harm in that area. That accident, however, did not involve a rope

swing; rather, that individual was injured after diving off the bank into shallow

water. That incident is not analogous to Mr. Ramos’s situation.

Apparentness and obviousness of the condition are two other factors

to consider when determining the likelihood of harm. Pryor, 60 So.3d 594. In his

deposition, Mr. Ramos testified that he knew the creek was chest-deep at its

deepest and ankle-deep at its shallowest. He knew, therefore, that there was a

chance he could land in the shallow end of the creek; the condition of the creek

was apparent. “[T]he risk was obvious and easily avoidable[,]” and Mr. Ramos

“did not act with reasonable care for [his] own safety.” Bennett v. City of

Lafayette, 93-1113 (La.App. 3 Cir. 4/6/94), 635 So.2d 515, 517, writ denied, 94-

1201 (La. 7/1/94), 639 So.2d 1167.

The cost of preventing this accident is difficult to quantify. Mr.

Ramos argues that the DOTD should have removed the rope swing, warned against

jumping or diving into the creek, or denied access to that area altogether. If the

DOTD had removed the rope swing, someone else could have easily installed

another one. It is unreasonable to expect the DOTD to bear the cost to continually

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monitor the area. Further, a warning sign would not have prevented this accident

as Mr. Ramos was fully aware of the creek’s depth when he decided to swing from

the rope. Denying access to Second Bridge altogether is too drastic, and the

benefit to the public outweighs the risk. Further, it would have cost Mr. Ramos

nothing to avoid the rope swing entirely. See Netecke v. State ex rel. Dep’t of

Transp. and Dev., 98-1182 (La. 10/19/99), 747 So.2d 489. The DOTD is not

responsible for ensuring against every possible risk at its rights-of-way. See

Brooks, 74 So.3d 187.

The fourth and final factor is the inherent nature and social utility of

Mr. Ramos’s activity. Mr. Ramos’s use of the rope swing was inherently

dangerous. Mr. Ramos knew the depth of the water, and he testified that when he

successfully used the rope swing, he curled his knees to his chest when he let go to

avoid hitting the bottom of the creek. He knew the risks implicit in swinging off a

rope swing over shallow water, and took steps to minimize those dangers.

Unfortunately, he was unable to maintain his grasp on the rope of his final swing,

and this accident resulted.

The totality of the circumstances and facts of this case indicate there

was no unreasonable risk of harm at Second Bridge. Mr. Ramos exercised poor

judgment; he knew the depth of the water, and the dangers of swinging off of the

rope above shallow water. Further, the benefit Second Bridge provides to the

community outweighs the likelihood of harm.

Duty

The DOTD owes a duty to maintain the public highways, shoulders,

and surrounding area in a condition that is safe for persons exercising ordinary care

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and reasonable prudence. Brooks, 74 So.3d 187. Although this duty technically

applies to the motoring public, our jurisprudence has found that it extends to

pedestrians as well. Oster, 582 So.2d 1285. In this case, because we find there

was no unreasonably dangerous condition, we consequently find the DOTD owed

no duty to Mr. Ramos. The absence “of an unreasonably dangerous condition of

the thing implies the absence of a duty on the part of the defendant.” Id. at 1288.

The DOTD is not required to ensure the safety of someone who acts without good

judgment and contrary to ordinary prudence, when no reasonable risk of harm

exists.

There is no genuine issue as to any material fact in this case, and the

DOTD is entitled to judgment as a matter of law.

IV.

CONCLUSION

For the reasons above, we affirm the trial court’s grant of summary

judgment to the DOTD. Costs of this appeal are assessed against Jerry Ramos.

AFFIRMED.

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NUMBER 12-1389
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA

JERRY RAMOS

VERSUS

STATE OF LOUISIANA, THROUGH DEPARTMENT OF TRANSPORTATION
& DEVELOPMENT, ET AL.

AMY, J., concurring in the result.
I agree that an affirmation is appropriate in this case. However, I write

separately in light of my differing analysis.

First, I note that the plaintiff filed suit for an accident occurring in 1986 and

did so under both negligence and strict liability. In light of the time frame of the

underlying event, La.R.S. 9:2800 is inapplicable to Mr. Ramos’s strict liability

cause of action. See Ramos v. State, ex rel. DOTD, 07-851 (La.App. 3 Cir. 2/6/08),

977 So.2d 1066, n.6 (citing Jacobs v. City of Bunkie, 98-2510 (La. 5/18/99), 737

So.2d 14), writ denied, 08-1074 (La. 9/26/08), 992 So.2d 986. Thus, the traditional

elements of strict liability are applicable in this case. Under that theory, the

plaintiff did not have to prove that the defendant knew or should have known of

the risk involved as he was required to do under the negligence claim. I raise this

point only for sake of completeness as neither knowledge nor notice seem to have

been placed at issue here and this distinction does not influence the outcome of this

case.

Additionally, in my opinion, the supreme court’s discussion in Brooks v.

State, ex rel. DOTD, 10-1908 (La. 7/1/11), 74 So.3d 187, offers definitive guidance

in this case. In Brooks, the supreme court concluded that the condition of a public

highway shoulder did not present an unreasonable risk of harm to an operator of a

backhoe. Rather, the supreme court observed that the legislature did not include

backhoes in the type of vehicles it specifically authorized to use the state’s

highways and shoulders. Id. In its concluding language, the supreme court

determined that:

DOTD is not the guarantor of the safety of all the motoring public
under every circumstance. DOTD is only liable for conditions that
could reasonably be expected to cause injury to a prudent person
using ordinary care under the circumstances. After reviewing all the
circumstances surrounding this accident, we find the jury was
manifestly erroneous in finding the condition of the shoulder
presented an unreasonable risk of harm. DOTD is simply not required
to maintain the roadway in such a condition that the driver of an
unstable backhoe, unauthorized for highway or shoulder driving,
traveling too fast to negotiate a sharp turn in that vehicle, will be able
to negotiate the turn without injury. There was no evidence in the
record that the condition of this shoulder could reasonably be
expected to cause injury to a prudent person using ordinary care under
the circumstances, in fact all the evidence was to the contrary.
Therefore, the condition of the shoulder did not present an
unreasonable risk of harm and DOTD’s duty did not encompass this
risk. To hold otherwise would place an unreasonable burden on the
State and DOTD to ensure a pavement surface on a heavily traveled
shoulder so smooth that construction vehicles not authorized for
highway use can be imprudently operated upon it.

Id. at 193-194.

Given the discussion in Brooks, I find that the present case offers a stark

example of a risk to which DOTD’s duty does not extend. DOTD merely held a

right-of-way to the subject property. The supreme court has specifically stated

that, in the context of a right-of-way, “DOTD owes a duty to maintain the land in

such a condition that it does not present an unreasonable risk of harm to motorists

using the adjacent roadway or to others, such as pedestrians, who are using the area

in a reasonably prudent manner.” Oster v. Dep’t of Transp. & Dev., 582 So.2d

1285, 1291 (La.1991). Certainly, the plaintiff’s use of the property was not within

such a context. Rather, any duty attendant to the limited purposes of a right-of-

way did not extend to the type of impermissible and obviously hazardous

recreational use engaged in by the plaintiff.

2

For these reasons, I concur with the majority that the trial court correctly

entered summary judgment in favor of DOTD.

3