John C. Owens v. McIlhenny Co

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 18-754

JOHN C. OWENS

VERSUS

MCILHENNY COMPANY, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 129546
HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and John E. Conery, Judges.

AFFIRMED.

Robert L. Marrero
Robert L. Marrero, LLC
401 Whitney Avenue, Suite 126
Gretna, LA 70056-2577
(504) 366-8026
COUNSEL FOR PLAINTIFF/APPELLANT:
John C. Owens

Kimberly G. Anderson
3850 N. Causeway Boulevard, Suite 1230
Metairie, LA 70002
(504) 872-3946
COUNSEL FOR DEFENDANTS/APPELLEES:
McIlhenny Company
Jungle Gardens, Inc.

EZELL, Judge.

John Owens filed suit against McIlhenny Company and Jungle Gardens, Inc.,

for injuries he sustained when he tripped and fell on a concrete pad while walking

through the gardens. The trial court granted summary judgment in favor of the

Defendants, and Mr. Owens filed the present appeal. For the following reason, we

affirm the judgment of the trial court.

FACTS

According to Mr. Owens’ petition, he and his wife and three cousins visited

Jungle Gardens at Avery Island on February 16, 2016.1 After touring other areas

of the gardens, the group went to the Palm Garden area. Mr. Owens stepped onto a

concrete pad on a pathway and began to fall. He broke his fall by stretching out

his hands. In the process, Mr. Owens severely injured both his wrists, which

required surgery. He also claims he injured his neck and back.

Mr. Owens filed suit against McIlhenny Company and Jungle Gardens on

January 9, 2017. The Defendants filed a motion for summary judgment on May 24,

2018. A hearing was held on July 18, 2018. At the conclusion of the hearing, the

trial court determined that the Defendants were entitled to summary judgment

under La.Civ.Code art. 2317.1 . Mr. Owens then filed the present appeal.

SUMMARY JUDGMENT

In reviewing a trial court’s determination of whether summary judgment is

appropriate, an appellate court utilizes a de novo standard of review and applies the

same standard of review that the trial court does. Schroeder v. Bd. of Supervisors

of La. State Univ., 591 So.2d 342 (La.1991).

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The petition alleges the group purchased tickets on February 16, 2015, but later alleges
the fall occurred on February 16, 2016.

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

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

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

La.Code Civ.P. art. 966(A)(3). In ruling on a motion for summary judgment, the

trial court’s role is not to evaluate the weight of the evidence, but instead to

determine whether there is a genuine issue of triable fact. Hines v. Garrett, 04-806

(La. 6/25/04), 876 So.2d 764.

The mover bears the burden of proving it is entitled to summary judgment

unless “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[.]” La.Code Civ.P. art.

966(D)(1). In that case, the mover is not required to negate all essential elements

of the adverse party’s claim but only need point out the absence of factual support

for one or more elements essential to the adverse party’s claim. Id. The burden is

then “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.” Id.

It is the applicable substantive law that determines whether the trial court’s

grant of summary judgment was appropriate. Davidson v. Sanders, 18-308

(La.App. 3 Cir. 12/6/18), ___ So.3d ___. At the hearing, the trial court was

presented with the issue of the applicability of the Louisiana Merchant Liability

Act under La.R.S. 9:2800.6 or premises liability under La.Civ.Code art. 2317.1.

The trial court determined that La.Civ.Code art. 2317.1 applied to this case and

that La.R.S. 9:2800.6 was not applicable. We agree.

Louisiana Revised Statues 9:2800.6(A) states that it applies to a merchant

“to keep his aisles, passageways, and floors in a reasonably safe condition.”

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Obviously, the Jungle Gardens has no aisles, passageways, or floors as

contemplated by the statute but is a 170 acre “exquisite semi-tropical garden

stretching along-side of Bayou Petit Anse” on Avery Island as described in Mr.

Owens’ petition. The trial court was correct in finding that La.Civ.Code art.

2317.1 is applicable to the facts of this case.

Louisiana Civil Code Article 2317.1 provides:

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.

In order to prevail on a claim under La.Civ.Code art. 2317.1 a plaintiff must

prove:

(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 [of] any one of these elements, his/her claim fails.

Riggs v. Opelousas Gen. Hosp. Trust Auth., 08-591, p. 4 (La.App. 3 Cir. 11/5/08),

997 So.2d 814, 817.

At the conclusion of the hearing, the trial court concluded that the

Defendants had no knowledge of the ruin, vice, or defect, or even that there was a

defect. The trial court concluded that the Defendants did not fail to exercise

reasonable care and that Mr. Owens tripped on his own accord. Therefore, the trial

court found that Mr. Owens failed to provide proof of any of the elements other

than custody of the concrete pad that Mr. Owens slipped on.

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Mr. Owens’ deposition testimony revealed that he had been to the gardens

several times before this incident. On this particular day, the weather was nice.

He noticed, as he walked on other concrete pads, that some of them would shift.

He had no problem seeing the pads. His wife stepped on the pad before him with

no problem. He testified that he put his left foot down on the back part of the pad

and fell. He was injured when he braced his fall with his hands. He stated that he

would not have fallen if he stepped on the middle of the pad as his wife did. Mr.

Owens did not tell anyone at the gardens about his accident nor report that the pads

had issues.

Under [A]rticle 2317.1, a defect is a condition creating an
“unreasonable risk of harm,” which requires the trier of fact to decide
whether the social value and utility of a hazard outweighs, and thus
justifies, its potential harm to others. The fact that a pedestrian fell on
a walkway does not automatically elevate the condition of that
walkway to that of an unreasonably dangerous defect. 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.

The degree to which the danger is evident to the plaintiff is one
factor in determining whether the condition is unreasonably dangerous.
If the facts of a particular case show that the complained of condition
should be obvious and apparent to all, the condition may not be
unreasonably dangerous and the defendant may owe no duty to the
plaintiff.

Cangelosi v. Treasure Chest Casino, L.L.C., 18-72, p. 6 (La.App. 5 Cir. 7/31/18),

252 So.3d 559, 564 (footnotes omitted), writ denied, 18-1446 (La. 11/20/18), 256

So.3d 997.

Mr. Owens acknowledged that he had stepped on previous concrete pads

that wiggled, so he knew he had to be careful. He also agreed that if you stepped

in the middle, the pad would not wiggle, yet he chose to step on the edge which is

when he fell. These pads were located on walking trails in an outdoor natural

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environment where common sense dictates that that surfaces will be uneven. Even

Mr. Owens acknowledged that it would have been “ridiculous” to report to the

anyone that the concrete pads would wiggle. He did not even report the incident

after he fell. As such, there is no evidence that the Defendants had any notice that

the concrete pads would wiggle.

We agree with the trial court that the concrete pads located on paths in the

gardens did not create an unreasonable risk of harm. Mr. Owens’ own testimony

establishes that had he exercised reasonable care in stepping in the middle of the

pad, the accident would not have occurred.

For these reasons, we find there are no genuine issues of material fact that

the Defendants are not liable under La.Civ.Code art. 2317.1. The trial court was

correct in granting the Defendants’ motions for summary judgment, and we affirm

its judgment. Costs of this appeal are assessed to John Owens.

AFFIRMED.

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