George Jagneaux v. Lafayette City-Parish Consol. govt.parks & Recreation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-768

GEORGE JAGNEAUX

VERSUS

LAFAYETTE CITY-PARISH CONSOL. GOV’T PARKS & RECREATION

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20102328
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery,
Judges.

AFFIRMED.

D. C. Panagiotis
George J. Armbruster, III
Panagiotis & Armbruster, APLC
1540 W. Pinhook Road
Lafayette, Louisiana 70503
(337) 264-1516
COUNSEL FOR DEFENDANT/APPELLEE:
Lafayette City-Parish Consolidated Government

Joseph F. Garr, Jr.
Jason M. Welborn
Willard P. Schieffler
Lucas S. Colligan
Attorneys at Law
Post Office Box 2053
Lafayette, Louisiana 70502-2069
(337) 233-3185
COUNSEL FOR PLAINTIFF/APPELLANT:
George Jagneaux

CONERY, Judge.

Plaintiff, George Jagneaux (“Mr. Jagneaux”), filed suit on April 10, 2010,

against Lafayette City-Parish Consolidated Government Parks and Recreation

Department (“LCG”). He claims that he was watching a baseball game and, as he

was walking across the stands, he fell due to an allegedly loose bleacher seat at the

ball park. Mr. Jagneaux filed suit claiming injury to his lower back.

Arceneaux Park is under the operational control of LCG through the Parks

and Recreation Department (“Department”). Mr. Jagneaux argues that LCG,

through the Department, should have had notice of the allegedly loose bleacher

that caused his fall. Mr. Jagneaux further argues LCG had a duty to find the

problem with the bleacher prior to the incident. The trial court granted LCG’s

motion for summary judgment and Mr. Jagneaux appeals the dismissal of his

petition. For the following reasons, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On May 15, 2009, Mr. Jagneaux was attending his grandson’s baseball

game at Arceneaux Park in Broussard, Louisiana. He claims in his lawsuit and in

his answers to interrogatories that he fell when the “bleachers gave way” as he was

walking on the bleachers provided for spectators, and “he landed on top of the

bleachers,” sustaining an injury to his lower back.

According to the depositions introduced in evidence by LCG in support of

its motion for summary judgment, it is the policy of the Department to perform a

yearly physical inspection of each park in March or April before the beginning of

youth baseball season in May. In this case, the Maintenance Supervisor of LCG,

Eddie Landry,1 personally conducted the inspection of the bleachers at each park

owned and operated by LCG, including Arceneaux Park, Field Two, the location

where Mr. Jagneaux claims he fell.

Mr. Landry testified in his deposition that he found no problems with the

bleachers on Field Two at Arceneaux Park that required any type of maintenance,

and that he conducted the 2009 inspection of the bleachers on Field Two in the

following manner:

Pull the four seats, you’ll go by each edge, there’s eighteen (18)
touches where you pick up on it and shake it and see if it’s loose. Get
on it, see if it rattles, and that would be one side. And then you walk
across the back looking underneath because the bleachers are such
you can see underneath, do the other side coming down. And then go
across the front and you look under there on the metal ones, they’re
usually all okay. Occasionally, we’ll have a crack in a weld on the
aluminum one, and so you do that with each of the bleachers.

According to the deposition testimony of Earl Joseph Leger, Arceneaux Park

Maintenance Supervisor, during the remainder of the year the Department

employees conducted the usual maintenance of each park, which involved mowing

the grass and maintaining the grounds. If an employee was informed of any

problems by a park visitor or saw anything out of place with the bleachers during

their usual routine, they would repair the problem or report the problem to a

supervisor, who would then send an employee with the necessary skills to make the

repairs.2

1
The portion of the deposition transcript of Eddie Landry submitted into the record,
erroneously identifies him as Kenny Albert Landry, Sr.
2
Mr. Leger also testified that the Department began inspecting the bleachers once a
month in approximately January 2012.

2

The depositions of two volunteers with the Broussard/Youngsville Youth

Association (“Association”) were also taken by Mr. Jagneaux. 3 One, Mr. Gary

Goodwin, responded to Mr. Jagneaux after his fall and testified in his deposition

that he only saw one bolt on the side of the bleacher at issue. Normally, there

would be two bolts on each side. The Association sponsors the games at Arceneaux

Park and is a separate legal entity from LCG.

Mr. Jagneaux also submitted in opposition to LCG’s motion for summary

judgment a document entitled, “LAFAYETTE YOUTH ASSOCIATION

RECREATION AND PARKS – INJURY REPORT.” Describing the incident, the

report states, “He stepped on bleacher to get across. The seat was not bolted and

caused him to fall across the bleachers. Has back, arm, shoulder & leg pain.” The

document was presumably written and signed by an individual who is identified as

a Board Member of the Association, but his signature is unreadable.

Counsel for LCG argues that none of the depositions submitted into the

record, as well as the deposition of the other unnamed volunteer mentioned, but not

submitted into the record, contain any testimony that any of these individuals were

aware of any problem with the bleacher at issue until after Mr. Jagneaux’s fall. In

addition, no evidence was presented to the trial court by Mr. Jagneaux that LCG

had any notice of a problem with the bleachers until after his May 15, 2009 fall.

Mr. Jagneaux filed suit on April 5, 2010. LCG filed their motion for

summary judgment on February 28, 2013, almost three years later, allowing

adequate time for discovery. LCG argued that Mr. Jagneaux will be unable to meet

the burden of proving at trial that LCG had actual or constructive notice of a defect

3
However, of the two depositions taken by Mr. Jagneaux of the volunteers, only page 38
of Mr. Gary Goodwin’s deposition was submitted into the record in opposition to LCG’s motion
for summary judgment.

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in the bleachers required under the applicable state law, La.R.S. 9:2800. A hearing

was held on March 25, 2013, after which the trial court ruled on the record, “The

court finds that there is no evidence that the plaintiff has established either actual

or constructive notice and will grant the motion for summary judgment.” The trial

court also signed a “JUDGMENT of DISMISSAL, WITH PREJUDICE,” on

March 25, 2013, from which Mr. Jagneaux now appeals.

ASSIGNMENTS OF ERROR

All three of Mr. Jagneaux’s assignments of error argue the trial court

committed legal error in failing to find that LCG satisfied its “duty or legal

obligation” to Mr. Jagneaux to “conduct reasonable inspections of the premises”

in order to discover and remediate the defect in the bleachers. As will be addressed

below these assignments of error are without merit.

LAW AND DISCUSSION

Summary judgments are reviewed de novo, applying the same standard to

the matter as that applied by the trial court. Smith v. Our Lady of the Lake Hosp.,

Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. Summary judgment is favored by the

law and provides a vehicle by which the just, speedy, and inexpensive

determination of an action may be achieved. La.Code Civ.P. art. 966(A)(2). The

trial court is required to render summary judgment if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to material fact, and that mover is

entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

In 1997 the legislature enacted La.Code Civ.P. art. 966(C)(2), which

clarified the burden of proof in summary judgment proceedings. The initial burden

of proof remains with the mover to show that no genuine issue of material fact

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exists. If the mover has made a prima facie showing that the motion should be

granted, the burden shifts to the non-moving party to present evidence

demonstrating that a material factual issue remains. “[T]he failure of the non-

moving party to produce evidence of a material factual dispute mandates the

granting of the motion.” Hutchinson v. Knights of Columbus, Council No. 5747,

03-1533, p. 6 (La. 2/20/04), 866 So.2d 228, 233 (citing Hardy v. Bowie, 98-2821,

(La. 9/8/99), 744 So.2d 606).

When a motion for summary judgment is made and supported, the adverse

party may not rest on the allegations or denials of his pleadings, but must set forth

specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art.

967(B). A fact is material when its existence or nonexistence may be essential to a

plaintiff’s cause of action under the applicable theory of recovery. “[F]acts are

material if they potentially insure or preclude recovery, affect a litigant's ultimate

success, or determine the outcome of the legal dispute.” Smith, 639 So.2d at 751

(citations omitted) (alteration in original). In other words, a “material” fact is one

that would matter on the trial on the merits. “Any doubt as to a dispute regarding a

material issue of fact must be resolved against granting the motion and in favor of

a trial on the merits.” Id.

In determining whether a fact is material, we must consider the substantive

law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir.

12/6/00), 774 So.2d 340, writ denied, 01-73 (La. 3/23/01), 788 So.2d 427.

Louisiana Civil Code Articles 2317 & 2317.1 require that in order to prevail

on his claim against LCG, Mr. Jagneaux is required to prove, (1) LCG had custody

of the bleachers in question; (2) That the bleachers at issue contained a defect that

created an unreasonable risk of harm; (3) That the defect in the bleachers was the

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cause of the harm; and (4) The custodian of the bleachers knew or should have

known of the defect. Ardoin v. Lewisburg Water System, 07-180 (La.App. 3 Cir.

7/18/07), 963 So.2d 1049.

In addition, a case against a public entity, such as LCG, requires Mr.

Jagneaux to prove that LCG had either actual or constructive notice of the alleged

vice or defect in the bleachers, had a reasonable opportunity to repair the defect,

and failed to do so pursuant to La.R.S. 9:2800(C) & (D) which state:

C. [N]o person shall have a cause of action based solely upon liability
imposed under Civil Code Article 2317 against a public entity for
damages caused by the condition of things within its care and custody
unless the public entity had actual or constructive notice of the
particular vice or defect which caused the damage prior to the
occurrence and the public entity has had a reasonable opportunity to
remedy the defect and has failed to do so.

D. Constructive notice shall mean the existence of facts which infer
actual knowledge.
“A municipal authority is deemed to have constructive notice if the defect

existed for such a period of time that by exercise of ordinary care ... the municipal

authority must have known of its existence, and ... had reasonable opportunity to

guard the public from injury by remedy of the defect.” Ambrose v. City of New

Iberia, 08-1197, p. 2 (La.App. 3 Cir. 4/1/09), 11 So.3d 34, 37.

In LCG’s memorandum in support of its motion for summary judgment,

LCG asked the trial court to assume, for the sake of the summary judgment motion

only, that LCG was the custodian of the bleachers at Arceneaux Park and that there

was a defect in the bleachers that caused Mr. Jagneaux’s injury. LCG argues to

this court, as they did to the trial court, that although Mr. Jagneaux’s fall and the

resulting injury occurred almost four years ago and suit was filed almost three

years ago, that Mr. Jagneaux has failed to come forth with any evidence

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demonstrating that LCG knew or should have known of the alleged defect, had an

opportunity to repair the defect, and failed to do so.

LCG argues that the facts of this case mirror the facts in the recent case of

Scott v. Lafayette Consol. Gov’t-Risk Mgmt. Div., 10-716 (La.App. 3 Cir. 12/8/10),

52 So.3d 1068. We agree. Ms. Scott was injured while riding a bus owned and

operated by LCG when the chime pull cord came loose and hit her face near her

eye. A panel of this court affirmed the trial court’s summary judgment in favor of

LCG, finding LCG had no actual or constructive notice of the pull cord’s defect.

In Scott, each bus owned and operated by LGC was subject to a periodic

check every 12,000 miles. The pull cords were subject to daily use by the

passengers and a daily check was made by LCG to make sure the chime operated

properly. In this case, the bleachers involved in Mr. Jagneaux’s injury were

subject to a yearly inspection in March or April, prior to the beginning of the youth

baseball season in May. In addition, the bleachers were used on a regular basis by

patrons of Arceneaux Park. LCG employees were present in the park for regular

maintenance, and if any problems with the bleachers were found or reported, the

necessary repairs were made.

The court in Scott also reiterated this circuit’s position on the issue of the

relationship between the lack of a policy or plan for periodic inspections by a

public entity and constructive knowledge, stating that “[l]ack of plan for periodic

inspections does not impute constructive knowledge.” Scott, 52 So.3d at 1071

(quoting Laird v. City of Oakdale, 04-767, p.7 (La.App. 3 Cir. 11/10/04), 886

So.2d 1262, 1267).

The Louisiana Supreme Court opinion in Jones v. Hawkins, 98-1259, 98-

1288 (La. 3/19/99), 731 So.2d 216, 220, is also cited in Scott and clearly defined

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both actual and constructive knowledge and stated:

[W]e find we cannot agree with the second circuit’s position that lack
of a plan constitutes constructive knowledge of the defect. The
definitions of actual and constructive knowledge are facially
incompatible with the implication of knowledge from a lack of a plan
to inspect. Actual knowledge 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.” Constructive knowledge is defined by La. R.S. 9:2800 as
the existence of facts that infer actual knowledge. The absence of a
plan of inspection in no way shows or implies that an employee of the
appropriate public entity has actual knowledge of a dangerous defect
or condition. Indeed, quite the opposite is true; in the absence of other
facts, such as recorded complaints about a defect, lack of a plan
implies that employees of the public entity have no actual knowledge
of dangerous defects or conditions. Thus, a holding that lack of a plan
infers knowledge effectively eviscerates the notice requirement of La.
R.S. 9:2800.

Jones, 731 So.2d at 220 (citations omitted).

During the discovery process, both Mr. Landry, the Maintenance Supervisor

for LCG and the individual who conducted the 2009 physical periodic inspection

of the bleachers on Field Two at Arceneaux Park, and Mr. Leger, Arceneaux Park

Maintenance Supervisor, were deposed. The plaintiff also deposed two volunteers

with the Association, one of whom, Mr. Goodwin, responded to Mr. Jagneaux after

his fall. Counsel for LCG argues that the testimony of each individual deposed

confirmed that they were unaware of any problems with the bleachers until after

Mr. Jagneaux’s fall on May 15, 2009, and there is nothing in the record to dispute

this assertion.

The facts of this case are analogous to those in Scott. The Jones case

affirmed that the absence of a plan of inspection in no way shows or implies actual

knowledge of a defect as required by statute. The deposition testimony submitted

by LCG clearly supports the trial court’s ruling that LCG did not have either the

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required actual or constructive notice of a defect in the bleacher plank prior to Mr.

Jagneaux’s May 15, 2009 fall.

Once LCG made a prima facie showing that its motion should be granted,

the burden then shifted to Mr. Jagneaux, pursuant to La.Code Civ.P. art. 966(C)(2),

to present evidence demonstrating that a material factual issue remains. “[T]he

failure of the non-moving party to produce evidence of a material factual dispute

mandates the granting of the motion.” Hutchinson, 866 So.2d at 233.

Louisiana Code of Civil Procedure Article 967(B) states:

When a motion for summary judgment is made and supported
as provided above, an adverse party may not rest on the mere
allegations or denials of his pleading, but his response, by affidavits or
as otherwise provided above, must set forth specific facts showing
that there is a genuine issue for trial. If he does not so respond,
summary judgment, if appropriate, shall be rendered against him.

Mr. Jagneaux argues that Mr. Goodwin’s one page deposition testimony,

submitted into the record, reflects that he looked under the opposite end of the

bleacher plank after Mr. Jagneaux’s fall and noted only one bolt instead of two. He

also argues that Mr. Goodwin’s testimony proves LCG had notice of the defect in

the bleacher plank.

A picture of the metal bleacher plank showing only one bolt was attached as

an exhibit to both Mr. Goodwin’s and Mr. Landry’s deposition testimony. Mr.

Landry testified that he observed one bolt and nut still in place. Mr. Landry further

testified that instead of replacing a bolt, it was the practice of LCG to weld the

bleacher plank to the frame. Thus, the absence of a single nut and bolt discovered

after Mr. Jagneaux’s fall would not prove that LCG had notice of a defect, just as

the loosening over time of the clamp that held the pull cord in Scott failed to prove

notice necessary to defeat summary judgment in that case.

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Based on our de novo review of the record, we conclude LCG did not have

the requisite actual or constructive notice required by La.R.S. 9:2800(C) & (D),

prior to Mr. Jagneaux’s fall on May 15, 2009. Thus, Mr. Jagneaux will be unable

to sustain his evidentiary burden at trial. The trial court’s ruling granting summary

judgment in favor of LCG was correct and adequately supported by the evidence

submitted in support thereof.

DISPOSITION

For the forgoing reasons, we affirm the trial court’s judgment granting

Lafayette City-Parish Government Parks and Recreation’s motion for summary

judgment, dismissing George Jagneaux’s petition with prejudice. All costs of this

appeal are assessed to Appellant George Jagneaux.

AFFIRMED.

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