Summer Hunter v. Lafayette Consolidated Government

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-401

SUMMER HUNTER

VERSUS

LAFAYETTE CONSOLIDATED GOVERNMENT

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2013-5767-E
HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
David Kent Savoie, Judges.

AFFIRMED.

J. Clemille Simon
Attorney at Law
P. O. Box 52242
Lafayette, LA 70505
(337) 232-2000
COUNSEL FOR PLAINTIFF/APPELLANT:
Summer Hunter

George Joseph Armbruster, III
Armbruster & Associates, APLC
332 East Farrel Road, Suite D
Lafayette, LA 70508
(337) 889-5511
COUNSEL FOR DEFENDANT/APPELLEE:
Lafayette Consolidated Government

Carl Joseph Rachal
122 Representative Row
Lafayette, LA 70508
(337) 232-2000
COUNSEL FOR PLAINTIFF/APPELLANT:
Summer Hunter

SAUNDERS, Judge.

Summer Hunter (hereinafter “Appellant”) appeals from the trial court’s grant

of summary judgment in favor of Lafayette Consolidated Government (hereinafter

“Appellee”). For the reasons that follow, we affirm the trial court’s grant of

summary judgment.

FACTS AND PROCEDURAL HISTORY

On November 15, 2012, Summer Hunter was an inmate at Lafayette Parish

Correctional Facility. She was being escorted to the courthouse across the street

by a deputy for the Lafayette Parish Sheriff’s Office. She was handcuffed and

shackled at her legs. When the leg shackles became caught on the expansion joint

between sidewalk slabs, she fell and fractured her ankle.

On November 13, 2013, Appellant filed a petition for damages against

Appellee, amongst other defendants not now parties to this action, for the personal

injuries sustained in the fall. On November 19, 2014, Appellee filed a motion for

summary judgment asserting that Appellee “had no notice of any potential

problems with the subject sidewalk until after the incident occurred” and, thus, that

Appellant could not meet her burden of proof under La.R.S. 9:2800.

In support of its motion for summary judgment, Appellee submitted the

affidavit of Brian Smith, Street Superintendent for Appellee. In his affidavit, he

testified that Appellee had no notice of the sidewalk defect. After a hearing, the

district court granted Appellee’s motion for summary judgment and dismissed

Appellant’s suit, reasoning:

the law is basically that the city or cities must keep sidewalks
reasonably safe but maintained and in -- perfect condition is not
necessary. And there is no proof today -- there is proof that, the
affidavit that was submitted, the City was not aware of the defect. I
have no proof before me that this can be proven and basically all there
is is a fishing expedition that may happen. So with what I have in

front of me today, I would grant the motion for summary judgement
[sic].
ASSIGNMENTS OF ERROR

In appealing the trial court’s grant of summary judgment, Appellant asserts

the trial court erred in:

1) failing to find that there was a genuine issue of material fact

pertaining to whether Appellee had notice of the defect sufficient

to preclude summary judgment; and

2) failing to allow Appellee additional time to conduct discovery

prior to granting the motion.

STANDARD OF REVIEW

An appellate court reviews a trial court’s grant of summary judgment de

novo. Covington v. McNeese State Univ., 08-505 (La.App. 3 Cir. 11/5/08), 996

So.2d 667, writ denied, 09-69 (La. 3/6/09), 3 So.3d 491. “The summary judgment

procedure is designed to secure the just, speedy, and inexpensive determination of

every action. . . . The procedure is favored and shall be construed to accomplish

these ends.” La.Code Civ.P. art. 966(A)(2). A motion for summary judgment “shall

be rendered forthwith if the pleadings, depositions, answers to interrogatories, and

admissions, together with the affidavits, if any, admitted for the purposes of the

motion for summary judgment, 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)(2). Generally, the movant bears the burden of proof on the motion.

La.Code Civ.P. art. 966(C)(2).

However, if the movant will not bear the burden of proof at trial on
the matter that is before the court on the motion for summary
judgment, the movant’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 that there is an absence of
factual support for one or more elements essential to the adverse
party’s claim, action, or defense. Thereafter, if the adverse party fails
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to produce factual support sufficient to establish that he will be able to
satisfy his evidentiary burden of proof at trial, there is no genuine
issue of material fact.

La.Code Civ.P. art. 966(C)(2); Thibodeaux v. Lafayette Gen. Surgical Hosp., LLC,

09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544.

As our supreme court explained in Smitko v. Gulf South Shrimp, Inc., 11-

2566, pp. 7-8 (La. 7/2/12), 94 So.3d 750, 755:

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.

ASSIGNMENT OF ERROR NUMBER ONE

In her first assignment of error, Appellant alleges the trial court erred in

granting summary judgment in favor of Appellee, asserting that the trial court

should have found a genuine issue of material fact existed pertaining to whether or

not Appellee had actual or constructive notice of the alleged defect. In support of

this assignment of error, Appellant notes that, within one month of her fall,

Appellee repaired the sidewalk. Appellant asserts this could mean that either the

repair was done in response to Appellant’s fall or that the repair was planned at the

time of Appellant’s fall, and therefore a material issue of fact exists as to

Appellee’s notice of the defect. In further support of this assignment, Appellant

asserts “that the fact that the sidewalk in question was on the premises of a public,

governmental business[] gives inference to the presumption that defendant had

constructive notice of the defect.” For the following reasons, we find this

assignment of error to lack merit.

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Applicable Law

Louisiana Civil Code Article 2317 provides:

We are responsible, not only for the damage occasioned by our
own act, but for that which is caused by the act of persons for whom
we are answerable, or of the things which we have in our custody.
This, however, is to be understood with the following modifications.

Louisiana Civil Code Article 2317.1 further provides, in pertinent part:

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.

Further, La.R.S. 9:2800 limits the liability of a public body, providing, in

pertinent part:

A. A public entity is responsible under Civil Code Article 2317 for
damages caused by the condition of buildings within its care and
custody.
....

C. Except as provided for in Subsections A and B of this Section, no
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.

When a plaintiff seeks damages under

La.Civ.Code art. 2317 and La.R.S. 9:2800 . . . the plaintiff bear[s] the
burden of establishing that: (1) [defendant] had custody of the thing
that caused the plaintiff’s injuries or damages; (2) the thing was
defective because it had a condition that created an unreasonable risk
of harm; (3) [defendant] had actual or constructive knowledge of the
defect and did not take corrective measures within a reasonable time;
and (4) the defect in the thing was a cause-in-fact of the plaintiff’s
injuries.

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Davis v. State ex rel. Dep’t. of Transp. & Dev., 11-625, p. 9 (La.App. 3 Cir.

11/2/11), 78 So.3d 190, 196, writ denied, 11-2681 (La. 2/10/12), 80 So.3d 488. “A

public entity is deemed to have constructive notice if the defect existed for such a

period of time that it should reasonably have discovered it.” Fisher v. Catahoula

Parish Police Jury, 14-1034, p. 4 (La.App. 3 Cir. 4/29/15), 165 So.3d 321, 324.

Analysis

In his affidavit, Brian Smith testified:

2) I am responsible for maintenance of streets, sidewalks, curbing,
bridges, gravel roads, ground maintenance, and tree trimming for
all city/parish rights of ways.

3) I was not aware of any potential problems with the city sidewalks
located at 916 Lafayette Street in the City of Lafayette, Lafayette
Parish, Louisiana that allegedly caused injury to Summer Hunter
until after the alleged incident took place on 11/15/12. A complaint
regarding an expansion joint on the sidewalk located at 916
Lafayette Street was received by my office on 11/16/12.

4) The policies of my department are that any defects or problems are
to be reported immediately and which come to the attention of
City-Parish employees must be documented and then repaired.

5) I have personally reviewed the written file pertaining to the alleged
injury, located at 916 Lafayette Street in Lafayette, Louisiana, as
regards to defects or problems with the city sidewalks and have
found no evidence that any City-Parish employee was aware of any
problems with the sidewalks located at 916 Lafayette Street that
allegedly caused injury to Summer Hunter until after the alleged
incident took place.

6) Based upon my personal knowledge and the documents available
to me, there is no evidence known to me to exist which indicates
my department had any notice of a problem or defect with the city
sidewalks located at 916 Lafayette Street until after the alleged
incident took place.

Mr. Smith’s affidavit shows that at least one element of Appellant’s claim,

the requirement of actual or constructive notice, is lacking factual support. Thus,

to preclude summary judgment, Appellant must come forward with evidence

sufficient to establish that she would be able to satisfy her burden of proof at trial.

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The record noticeably lacks any evidence that Appellee had actual or

constructive knowledge. Appellant has failed to direct us to any evidence that

Appellee had actual notice. Appellant suggests that, because the sidewalk was

repaired shortly after the fall, a genuine issue of material fact exists because it can

be inferred either that the repair was already planned or that it was done in

response to Appellant’s fall. However, Appellant presents no evidence that repair

was already planned.

Moreover, Appellant presents no evidence in opposition to the motion

indicating that she would be able to prove at trial the element of constructive notice.

Although a public entity is deemed to have constructive notice when a defect

existed for a long period of time, Appellant fails to point out any evidence that the

defect at issue in this case actually existed for any substantial length of time. The

mere fact that such a defect existed on governmental premises is insufficient to

create a genuine issue of material fact as to whether constructive notice existed.

Such an interpretation would be wholly inconsistent with the text of the statute,

which requires more than simple care and custody of the defective premises. To

hold that mere custody is sufficient to infer that a public entity had knowledge of

the defect is an evisceration of the notice requirement of La.R.S. 9:2800. Without

some evidence of actual or constructive notice, we must affirm the trial court’s

grant of summary judgment.

ASSIGNMENT OF ERROR NUMBER TWO

Appellant asserts in her second assignment of error that the trial court erred

in failing to grant her additional time to conduct discovery prior to ruling on the

motion. We find this assignment to lack merit.

Appellant filed suit on November 13, 2013. Appellee’s motion for summary

judgment was filed on November 19, 2014. The hearing on the motion took place
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January 20, 2015, fourteen months after suit was filed. Appellant propounded no

discovery during this time and did not move for a continuance of the hearing.

As we explained in Gunter v. Jefferson Davis Parish, 11-1018, pp. 4-5

(La.App. 3 Cir. 2/1/12), 84 So.3d 705, 708:

Louisiana Code of Civil Procedure Article 966(A)(1) provides
that a defendant may move for summary judgment “at any time.”
Further, La.Code Civ.P. art. 966(C)(1) provides that “[a]fter adequate
discovery or after a case is set for trial, a motion which shows that
there is no genuine issue of material fact and that the mover is entitled
to judgment as a matter of law shall be granted.”

The provision for adequate discovery does not
grant a party an absolute right to delay a decision on a
motion for summary judgment until all discovery is
complete. West v. Watson, 35,278 (La.App. 2 Cir.
10/31/01), 799 So.2d 1189, writ denied, 01–3179
(La.2/8/02), 809 So.2d 140. Unless the party opposing
the motion for summary judgment shows a probable
injustice, a suit should not be delayed pending discovery
when it appears at an early stage that there are no genuine
issues of fact. Advance Products & Systems, Inc. v.
Simon, 06–609 (La.App. 3 Cir. 12/6/06), 944 So.2d 788,
writ denied, 07–26 (La.3/9/07), 949 So.2d 444. The
abuse of discretion standard is used to determine if the
trial court allowed adequate time for discovery. Id.

Appellee’s motion was filed over one year after suit was originally filed. A

hearing on the motion did not take place until more than fourteen months after suit

was filed. Appellant propounded no discovery during this time. No continuance

of the hearing on the motion was sought. Although Appellant asserts that her

incarceration during the pendency of the suit prevented her from being able to

assist counsel, Appellant fails to explain how her incarceration prevented her

counsel from communicating with her and propounding discovery. In light of the

fact that Appellant propounded no discovery during the pendency of suit, yet failed

to file a motion for a continuance of the hearing on the motion, we find no merit to

Appellant’s assertion that she had inadequate time to conduct discovery. Thus, the

trial court did not err in granting summary judgment in favor of Appellee.
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FRIVOLOUS APPEAL

In timely answering the appeal, Appellee requested that this court award it

damages for frivolous appeal. For the reasons that follow, we decline to make

such an award.

Louisiana Code of Civil Procedure Article 2164 authorizes an appellate

court to award a litigant damages for a frivolous appeal. However, this article is

penal in nature. Derouen v. Nelson, 09-467 (La.App. 3 Cir. 3/10/10), 32 So.3d

1079. Thus, it must be strictly construed. Id. Moreover, we note that appeals are

favored. Id. Thus, damages for a frivolous appeal will not be awarded solely

because the appeal lacks merit. Instead, such damages will be awarded only where

it is easily apparent that the appeal was taken for the sole purpose of delay or that

counsel for the appellant lacks serious belief in the argument that he is advocating.

Id.

Although we found no merit in Appellant’s assignments of error, we decline

to find either that Appellant appealed the trial court’s grant of summary judgment

solely for the purpose of delay or that Appellant’s counsel lacked a serious belief

in the position advocated. We can discern no advantage to delay in this case.

Moreover, there is no evidence that counsel for Appellant lacked a serious belief in

the positions he advocated. Both assignments of error raised legitimate questions

for appeal: whether Appellee had constructive notice of the defect and whether the

trial court abused its discretion in not allowing additional time for discovery.

Accordingly, we deny Appellee’s request for damages for frivolous appeal.

CONCLUSION

In light of the foregoing, we affirm the judgment of the trial court in all

respects. All costs of this appeal are to be paid by Appellant.

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