Leola Hunt v. Golden Corral Corporation

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-06

LEOLA HUNT

VERSUS

GOLDEN CORRAL CORPORATION

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. 2006-4757-G
HONORABLE DURWOOD CONQUE, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and John E. Conery,
Judges.

Cooks, J., dissents.

AFFIRMED.

John Jefcoat
Holly LaMarche
Britney L. Hebert
Galloway Jefcoat, L.L.P.
1925 Dulles Drive
Post Office Box 61550
Lafayette, Louisiana 70596-1550
(337) 984-8020
COUNSEL FOR PLAINTIFF/APPELLANT:
Leola Hunt

Brent N. Carriere
2000 Kaliste Saloom Road, Suite 400
Post Office Box 81129
Lafayette, Louisiana 70598-1129
(337) 291-1330
COUNSEL FOR DEFENDANT/APPELLEE:
Golden Corral Corporation

GENOVESE, Judge.

Plaintiff, Leola Hunt,1 filed suit against Golden Corral Corporation (Golden

Corral) for damages related to a trip-and-fall accident. The trial court entered

summary judgment in favor of Golden Corral, finding that Plaintiffs lacked the

requisite evidence to prove that the restaurant’s sidewalk was unreasonably

dangerous. Plaintiffs have appealed. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to the petition filed in this matter, “[o]n . . . February 23, 2006,

Leola Hunt was a pedestrian walking on the sidewalk located on the exterior of the

Golden Corral Restaurant on Ambassador Caffery Parkway in Lafayette,

Louisiana.” Mrs. Hunt claims that her “walker became stuck in a void where the

landscape edging meets the . . . sidewalk, causing her to fall into the landscaped

area.” She suffered “injuries to her left leg, right hand, complications to a

transplanted kidney[,] and bruising and soreness of her body in general.”

Mrs. Hunt contends that her injuries “are the result of the wanton and gross

negligence” of Golden Corral for “the unreasonably dangerous condition created

by the improperly maintained sidewalk[.]” Mrs. Hunt filed her petition for

damages on September 8, 2006.

Golden Corral filed a motion for summary judgment on May 12, 2011,

contending that Plaintiffs lacked the requisite evidence to prove that its sidewalk

was unreasonably dangerous or that it had the requisite prior knowledge that an

unreasonably dangerous condition existed. In support of its motion, Golden Corral

offered excerpts from the depositions of Albert Broussard, Mrs. Hunt’s husband,
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Leola Hunt died intestate on December 27, 2007, for reasons unrelated to this incident.
Her husband, Albert Broussard, and three grandchildren, Shaundra Hunt, Shauntrell Hunt, and
Lakeithia Hunt, were added as party plaintiffs to the original cause of action on November 30,
2009.

and Jules R. Courville, the front-of-the-house manager for Golden Corral on the

date of Mrs. Hunt’s accident. Both men were present when Mrs. Hunt’s

trip-and-fall accident occurred.

According to Mr. Broussard’s deposition testimony, he was uncertain of the

size of the gap between the sidewalk and the metal landscape edging where the

wheel of Mrs. Hunt’s walker allegedly became lodged prior to her fall. According

to Mr. Courville, the gap between the sidewalk and the metal landscape edging was

less than a half an inch. Mr. Courville also stated that he witnessed Mrs. Hunt fall

after she lost her balance when she leaned over to spit into the flowerbed.

Golden Corral’s motion was denied by the trial court on the basis that there

were genuine issues of material fact relative to the size of the alleged gap between

the sidewalk and the landscape edging and whether or not the sidewalk was

considered a handicap entrance, which would have required compliance with

Americans with Disability Act (ADA) regulations. A judgment to this effect was

signed by the trial court on June 23, 2011.

Golden Corral filed a second motion for summary judgment on May 14,

2012. Golden Corral reiterated its argument that Plaintiffs lacked the requisite

evidence to prove that its sidewalk was unreasonably dangerous or that it had the

requisite prior knowledge that an unreasonably dangerous condition existed. In

support of its motion, Golden Corral offered the affidavit of J. David Brinson, a

licensed architect, attesting to the condition of the sidewalk. According to

Mr. Brinson, he viewed photographs of the sidewalk that were taken immediately

after Mrs. Hunt’s fall as well as the present condition of the sidewalk. He opined

that the sidewalk where Mrs. Hunt fell complied with ADA regulations and that it

did not present an unreasonable risk of harm to the patrons of Golden Corral.

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At the July 9, 2012 hearing, the trial court ruled:

The issue, of course, is whether or not—one of the issues is whether
or not the sidewalk itself is unreasonably dangerous, and, of course,
there is no evidence that that is correct. It’s a question of what
happens if somebody goes off the sidewalk with a walker. We now
have an expert saying that this situation was acceptable. In fact, in his
report, he even says that it was probably a good thing because it
served as a barrier—it was a different color, and it served as a
demarcation of the edge of the sidewalk.

I’m going to grant the motion for summary judgment.
[Plaintiffs have] been unable to come up with substantial facts to
refute the premise that the expert presents and I don’t think [they]
could meet [their] burden of proof at trial.

The trial court’s judgment stated that Golden Corral was “entitled to summary

judgment in its favor dismissing [P]laintiffs’ claims as there was no disputable

evidence establishing that the alleged condition causing the incident was an

unreasonable risk of harm.” Plaintiffs have appealed this judgment.

ASSIGNMENTS OF ERROR

On appeal, Plaintiffs contend that the trial court erred in: (1) granting

summary judgment in favor of Golden Corral; (2) relying upon the opinion of

Defendant’s expert; and, (3) ruling that they would be unable to meet their burden

of proof at trial.

LAW AND DISCUSSION

Our Louisiana Supreme Court has set forth the governing jurisprudence

relative to a motion for summary judgment and our appellate standard of review

thereof as follows:

Appellate review of the granting of a motion for summary judgment is
de novo, using the identical criteria that govern the trial court’s
consideration of whether summary judgment is appropriate. Bonin
v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906,
910; Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d
342, 345 (La.1991). A motion for summary judgment is properly
granted only if the pleadings, depositions, answers to interrogatories,

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and admissions on file, together with the affidavits, if any, show there
is no genuine issue of material fact, and the mover is entitled to
judgment as a matter of law. La. C.C.P. art. 966; Duncan v. USAA
Ins. Co., 06-0363, p. 4 (La.11/29/06), 950 So.2d 544, 546-547. A fact
is material if it potentially insures or precludes recovery, affects a
litigant’s ultimate success, or determines the outcome of the legal
dispute. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764,
765 (per curiam)(citing Smith v. Our Lady of the Lake Hosp., Inc.,
93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). A genuine issue of
material fact is one as to which reasonable persons could disagree; if
reasonable persons could reach only one conclusion, there is no need
for trial on that issue and summary judgment is appropriate. Hines,
876 So.2d at 765-66.

Smitko v. Gulf South Shrimp, Inc., 11-2566, pp. 7-8 (La. 7/2/12), 94 So.3d 754,

755.

In the instant case, Plaintiffs allege that Golden Corral was negligent due to

an unreasonably dangerous sidewalk at its restaurant. As such, Plaintiffs have the

burden of proving Golden Corral’s negligence at trial. Davis v. Country Living

Mobile Homes, Inc., 11-471 (La.App. 3 Cir. 10/19/11), 76 So.3d 1248 (citing Bias

v. Scottsdale Ins. Co., 10-378 (La.App. 3 Cir. 11/10/10), 50 So.3d 964). Thus,

Golden Corral, as movant of the motion for summary judgment herein, does not

bear the burden of negating all essential elements of Plaintiffs’ claims. See

La.Code Civ.P. art. 966(C)(2). Rather, Golden Corral need only “point out to the

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

to the adverse party’s claim, action, or defense.” Id. If Plaintiffs “fail[] to produce

factual support sufficient to establish that [they] will be able to satisfy [their]

evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

Plaintiffs assert their action against Golden Corral pursuant to La.Civ.Code

art. 2317 and La.Civ.Code art. 2317.1. Louisiana Civil Code Article 2317

provides in part: “We are responsible, not only for the damage occasioned by our

own act, but for that which is caused by . . . the things which we have in our

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custody. This, however, is to be understood with the following modifications.”

Pursuant to La.Civ.Code art. 2317.1 (emphasis added):

The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he
knew or, in the exercise of reasonable care, should have known of the
ruin, vice, or defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care. Nothing in this Article shall
preclude the court from the application of the doctrine of res ipsa
loquitur in an appropriate case.

At trial, Plaintiffs must prove (1) the sidewalk was in Golden Corral’s

custody and control; (2) the sidewalk contained a defect which presented an

unreasonable risk of harm to others; and, (3) Golden Corral knew or should have

known of the defect. See Davis, 76 So.3d 1248. Golden Corral argues that

Plaintiffs are unable to prove two essential elements of their claim: (1) an

unreasonably dangerous condition; and, (2) actual or constructive notice of said

unreasonably dangerous condition. We agree.

The photographs in the record, notably introduced by both Plaintiffs and

Golden Corral, support Mr. Brinson’s expert opinion that there was no defect in

the sidewalk and that it was not unreasonably dangerous. Plaintiffs failed to

produce any expert establishing any defect in the sidewalk, and there is no question

of material fact in that regard. Based upon this showing, we find that Golden

Corral, as the mover on summary judgment, met its burden of establishing the

“absence of factual support” for an essential element of Plaintiffs’ claim, i.e., an

unreasonable risk of harm. La.Civ.Code art. 966(C)(2). Plaintiffs have failed to

produce the necessary evidence to support their allegations that the sidewalk was

unreasonably dangerous or created an unreasonable risk of harm. Based on the

record, the facts presented, and the applicable law, we find that the trial court was

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legally correct in granting summary judgment in favor of Golden Corral

Corporation.

DECREE

For the foregoing reasons, the judgment of the trial court granting Golden

Corral Corporation’s motion for summary judgment is affirmed. Costs are

assessed to Plaintiffs/Appellants, Albert Broussard, Shaundra Hunt, Shauntrell

Hunt, and Lakeithia Hunt.

AFFIRMED.

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