Crystal Grossie v. Mgm Properties, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-224

CRYSTAL GROSSIE

VERSUS

MGM PROPERTIES, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20130248
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.

AFFIRMED.

Cooks, J., dissents and assigns reasons.

Matthew J. Hill, Jr.
Attorney at Law
711 West Pinhook Road
Lafayette, Louisiana 70503
(337) 989-8100
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Fire & Casualty Co.
MGM Properties, Inc.

Norris J. Greenhouse
Attorney at Law
Post Office Box 444
Marksville, Louisiana 71351
(318) 253-6394
COUNSEL FOR PLAINTIFF/APPELLANT:
Crystal Grossie

SAVOIE, Judge.

Plaintiff Crystal Grossie appeals the ruling of the trial court, granting

Defendant State Farm Fire and Casualty Company’s (State Farm) Motion for

Summary Judgment and dismissing Grossie’s claims. For the following reasons,

we affirm.

FACTS

On the afternoon of February 21, 2012, Crystal Grossie was walking to a

Mardi Gras parade in Lafayette, Louisiana. On the way, she passed through a

property located at 1015 St. John Street and owned by Defendant MGM Properties,

Inc. While on the property, Grossie tripped and fell on a piece of metal that was

driven into the ground adjacent to the walkway. In her Petition for Damages filed

January 15, 2013, she claimed to have sustained damages to her chin, jaw, hip,

neck and back, as well as fracturing several teeth. Grossie named as Defendants

MGM Properties, Inc., the owner of the property, and its property insurer State

Farm. Grossie subsequently filed a Partial Judgment of Dismissal which dismissed

MGM Properties, Inc., leaving State Farm as the only Defendant.

State Farm filed a Motion for Summary Judgment on December 29, 2015,

alleging a lack of evidence regarding: (1) whether the condition presented an

unreasonable risk of injury; and (2) whether MGM Properties, Inc. and/or State

Farm had the requisite prior knowledge of the condition. After a hearing on the

motion held October 16, 2017, the trial court granted State Farm’s Motion for

Summary Judgment and dismissed Grossie’s claims with prejudice. Grossie now

appeals.

ASSIGNMENTS OF ERROR

1. The trial court was manifestly erroneous in failing to submit on the

record or in writing its [reasons for granting] Appellees/Defendants’

Motion for Summary Judgment.

2. The trial court committed manifest error in granting the

Appellee/Defendants’ Motion for Summary Judgement stating lawn

timber and metal stripping are not hazardous.

3. The trial court erred as a matter of law as there are genuine issue of

material facts in this case that should be decided by the trier of fact as

this case was scheduled as a jury trial.

LAW AND DISCUSSION

I. Standard of Review

“[A] motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue of

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

La.Code Civ.P. art. 966(A)(3).

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.

La.Civ.Code art. 966(D)(1).

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“Appellate courts review summary judgments de novo under the same

criteria that govern a district court's consideration of whether summary judgment is

appropriate.” Larson v. XYZ Ins. Co., 16-745, p. 6 (La. 5/3/17), 226 So.3d 412,

416.

II. Assignment of Error Number One

Grossie first argues that the trial judge failed to state on the record or in

writing the reasons for ruling. Louisiana Code of Civil Procedure Article 966(C)(4)

governs the procedural rules for motions for summary judgment and states, in

pertinent part: “In all cases, the court shall state on the record or in writing the

reasons for granting or denying the motion.”

A review of the hearing transcript finds the following discussion:

MR. GREENHOUSE: But if the Court wants us to address anything,
I would be happy to address it.

THE COURT: Not for me, with the facts. You know, we’re talking
about wood landscaping as well as metal spike, as to whether or not
that was the hazard.

MR. HILL: Whether that is the defect.

THE COURT: So, all right. I’m going to grant MGM’ motion for
judgment, and State Farm. Okay.

MR. HILL: Thank you, your honor. I did not prepare a judgment
because we didn’t know we were going to submit the –

THE COURT: Prepare one and get him to approve it as to form.

The 2015 Comments to La.Code Civ.P. art. 966 state:

(i) Subparagraph (C)(4) is new. The court shall state either on
the record or in writing the reasons for granting or denying the motion.
Nevertheless, the court does not have to address every reason or
argument, and the form and detail of the reasons are left to the
discretion of the court.

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While abbreviated, the reasons for the trial court’s grant of the motion for

summary judgment can be determined from the transcript. The trial judge clearly

finds that the wood landscaping and the metal spike were not defects under the

applicable law. As stated in the comments, the trial judge need not address every

reason or argument put forth by counsel. As such, we find no merit in this

assignment of error.

III. Assignments of Error Number Two and Three

Plaintiff next argues that the trial court erred in finding the wood

landscaping and metal stripping were not hazardous defects and that there are

genuine issues of material fact that exist in this case. The law applicable to this

claim is found in La.Civ.Code art. 2317.1, which states:

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.

Under La.Civ.Code art. 2317.1, Plaintiff has the burden to prove the

following:

(1) that the thing which caused the damage was in the defendant's
custody or control, (2) that it had a vice or defect that presented an
unreasonable risk of harm, (3) that the defendant knew or should have
known of the vice or defect, (4) that the damage could have been
prevented by the exercise of reasonable care, and (5) that the
defendant failed to exercise such reasonable care. If the plaintiff fails
to provide proof any one of these elements, his/her claim fails.

Riggs v. Opelousas Gen. Hosp. Trust Authority, 08-591, p. 3 (La.App. Cir.

11/5/08), 997 So.2d 814, 816-17. Under La.Civ.Code art. 2317.1, a defect is a

condition creating an “unreasonable risk of harm.” Moore v. Oak Meadows

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Apartments, 43,620 (La.App. 2 Cir. 10/22/08), 997 So.2d 594 (citation omitted).

“Not every defect gives rise to liability. The defect must be of such a nature to

constitute a dangerous condition, which would reasonably be expected to cause

injury to a prudent person using ordinary care under the circumstances.” Ruschel v.

St. Amant, 11-78, p. 6 (La.App. 5 Cir. 5/24/11), 66 So.3d 1149, 1153 (quoting

Jeansonne v. South Cent. Bell Telephone Co., 08-568, pp. 9-10 (La.App. 5 Cir.

1/13/09), 8 So.3d 613, 619).

There is no fixed rule for determining whether the thing
presents an unreasonable risk of harm. The trier of fact must balance
the gravity and risk of harm against the individual and societal rights
and obligations, the social utility, and the cost and feasibility of repair.
Simply put, the trier of fact must decide whether the social value and
utility of the hazard outweigh, and thus justify, its potential harm to
others. Reed v. Wal–Mart Stores, Inc., 97–1174 (La.03/04/98), 708
So.2d 362; Johnson, supra.

There are several factors that may be considered in determining
whether a hazard presents an unreasonable risk of harm. The degree to
which a danger is evident to a potential victim is one factor in
determining whether the condition is unreasonably dangerous.
Johnson, supra; (citations omitted). The accident history of the defect
is also a relevant consideration in the unreasonable risk evaluation.
Reed, supra; Boyle v. Board of Sup'rs, Louisiana State University, 96–
1158 (La.01/14/97), 685 So.2d 1080.

Moore, 997 So.2d at 598-99. “[I]n a trip and fall case, the duty is not solely with

the landowner.” Babino v. Jefferson Transit, 12-468, p. 6 (La.App. 5 Cir. 2/21/13),

110 So.3d 1123, 1126. “A pedestrian has a duty to see that which should be seen

and is bound to observe whether the pathway is clear.” Id. (citing Hutchinson v.

Knights of Columbus, Council No. 5747, 03-1533 (La. 2/20/04), 866 So.2d 228).

[W]hether a defect presents an unreasonable risk of harm “is a
disputed issue of mixed fact and law or policy that is peculiarly a
question for the jury or trier of the facts.” Tillman v. Johnson, 612
So.2d 70 (La.1993). Further, causation is a question of fact.
Nevertheless, to overrule a grant of summary judgment, we must find
a material fact still at issue. La. C.C.P. art. 966. A material fact is one
whose existence or nonexistence may be essential to plaintiff's cause

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of action under the applicable theory of recovery. Smith v. Our Lady
of the Lake Hosp., Inc., 93–2512 (La.7/5/94), 639 So.2d 730, 751.

Id. at 1126-27.

State Farm attached, in support of its’ motion, the affidavit of Kevin C.

Vanderbrook, a licensed professional engineer in the state of Louisiana. After

observing the incident location, he opined that “the sidewalk on the east side of the

subject property and yard in front of the subject building do not contain any

unreasonably hazardous conditions or unsafe maintenance issues. The yard and

edging are well maintained and are open and obvious to persons exercising a

reasonable amount of care.” Also included in the record are numerous

photographs of the area in question that clearly show the metal edging, sidewalk,

and yard of the building.

Upon a review of the evidence presented and the applicable law, we find no

error in the trial court’s ruling. The metal edging was open and obvious, and that

fact, coupled with Ms. Grossie’s duty to observe that the pathway is clear,

precludes it from rising to the level of presenting an unreasonable risk of harm.

We find that Crystal Grossie, as the party with the burden of proof at trial, has

failed to produce factual support sufficient to show that she will be able to meet her

evidentiary burden of proof at trial. Therefore, summary judgment was appropriate

in this matter. In addition, we find no genuine issues of material fact that exist in

this case. Assignments of error number two and three lack merit.

DECREE

The trial court’s judgment on Defendant State Farm Fire and Casualty

Company’s Motion for Summary Judgment, granting the motion and dismissing

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Plaintiff Crystal Grossie’s claims, is affirmed. All costs associated with the appeal

are assessed to Crystal Grossie.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-224

CRYSTAL GROSSIE

VERSUS

MGM PROPERTIES, INC., ET AL.

COOKS, J., dissents.

I respectfully dissent from the majority opinion affirming the trial court’s

grant of summary judgment in this matter. I have reviewed the record and find the

trial court failed to follow the express dictates of La.Code Civ.P. art 966(C)(4) and

“state on the record or in writing the reasons for granting or denying the motion.”

While, as the majority notes, it is not necessary for the trial court to address every

reason or argument put forth by counsel, it still must state its reasons for granting or

denying the motion. A review of the record shows the trial court did not do so. It is

not this court’s function to assume what the trial court’s reasoning is in reaching its

decision and to provide those reasons for the first time here on appeal. The trial

court is required to state it’s reasons for ruling, either orally or in writing in the

record, to comply with La.Code Civ.P. art 966(C)(4). As that was not done, I believe

we must reverse the grant of summary judgment and remand for further proceedings.

The disputed issue in this case is not whether the landscaping and metal

edging were hazardous defects, but rather were they open and obvious to a pedestrian

exercising reasonable care. There are genuine issues of material fact on this issue

which should have precluded summary judgment from being granted in this case.

The majority relies on the affidavit of Kevin Vanderbrook, who opined the sidewalk

area in question did not contain any unreasonably hazardous conditions or unsafe

maintenance issues and was open and obvious to persons exercising reasonable care.

Plaintiff notes Mr. Vanderbrook did not examine and view the property in question

until nearly five years after the accident. Plaintiff maintained the metal stripping

which caused her to trip was obscured underneath clover and high grass. The

photographs taken by Mr. Vanderbrook show no indication of any clover or high

grass in the area of the metal stripping. While those pictures sufficiently show the

area in question, nearly five years after the accident, was well maintained and open

and obvious to persons exercising reasonable care, it does not establish the condition

of the property on the date the accident occurred. For this reason, as well, I find

summary judgment should not have been granted in this matter.