Gary Jones v. Town of Gueydan

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-11

GARY JONES

VERSUS

TOWN OF GUEYDAN

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, DOCKET NO. 103910
HONORABLE MICHELLE BREAUX, DISTRICT JUDGE

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SYLVIA R. COOKS
CHIEF JUDGE
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Court composed of Sylvia R. Cooks, Chief Judge, Elizabeth A. Pickett and Shannon
J. Gremillion, Judges.

REVERSED AND REMANDED.

Christopher McCall
Baggett, McCall, Burgess, Watson & Gaughan, LLC
3006 Country Club Road
P.O. Drawer 7820
Lake Charles, LA 70606-7820
(337) 478-8888
COUNSEL FOR PLAINTIFF/APPELLANT:
Gary Jones

Joy C. Rabalais
H. Edward Barousse, III
Cranay D. Murphy
Kate Bailey Labue
Borne, Wilkes & Rabalais, L.L.C.
200 West Congress St., Suite 1000
P.O. Box 4305
Lafayette, LA 70502-4305
(337) 232-1604
COUNSEL FOR DEFENDANT/APPELLEE:
Town of Gueydan

COOKS, Chief Judge.

On October 26, 2016, Plaintiff, Gary Jones, attended the wedding of his uncle

at the Gueydan Civic Center. The Civic Center was owned and maintained by

Defendant, the Town of Gueydan. After leaving the function, Plaintiff and another

guest, Troy Derouen, were carrying an ice chest out to Plaintiff’s vehicle, which was

parked in the Civic Center parking lot. According to Plaintiff, the sidewalk leading

to the parking lot was obstructed, so he and Derouen instead began to walk across a

grassy area to get to his truck. While doing so, Plaintiff suddenly walked into a hole

and fell to the ground. As a result of the fall, Plaintiff suffered a broken right fibula,

which detached from his ankle and required surgery.

On September 14, 2017, Plaintiff filed a Petition for Damages, asserting

Defendant was responsible for the hole which caused his injury. Defendant

answered, denying Plaintiff’s allegations and asserting certain affirmative defenses.

After discovery and the taking of Plaintiff’s deposition, Defendant filed a Motion

for Summary Judgment on March 12, 2020 contending Plaintiff lacked any evidence

to support a finding of actual notice of any hole as required by La.R.S. 9:2800.

Plaintiff opposed the motion, and a hearing was held on May 18, 2020. After

arguments, the trial court granted Defendant’s motion for summary judgment and

dismissed Plaintiff’s claims with prejudice. A judgment in accordance with that

ruling was signed on May 28, 2020.

Plaintiff appeals the trial court’s judgment granting the motion for summary

judgment, contending he presented evidence of actual notice and Defendant’s breach

of their duty to use reasonable care to warn Plaintiff of the known unreasonable risk

of harm. At a minimum, Plaintiff asserts there were material factual disputes which

should have precluded the granting of summary judgment. Finding merit in

Plaintiff’s contentions, we reverse the granting of summary judgment and remand

the matter for further proceedings consistent with this opinion.

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Standard of Review

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 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

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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 Defendant, Plaintiff is required to prove, (1) Defendant had

custody of the area in question; (2) that the area contained a defect that created an

unreasonable risk of harm; (3) that the defect was the cause of the harm; and (4)

the custodian of the area 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 Defendant, requires Plaintiff

to prove Defendant had either actual or constructive notice of the alleged vice or

defect, 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.

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The trial court apparently found there was a lack of evidence to support

Plaintiff’s allegations that Defendant had actual or constructive notice of the hole in

question. To defeat Defendant’s motion for summary judgment based on a lack of

notice, Plaintiff must show there was evidence, in the light most favorable to the

non-moving part, sufficient to support a finding that Defendant had actual or

constructive notice of the defect. Our review of the record establishes Plaintiff

presented sufficient evidence in this regard.

There was no dispute that Defendant was the owner of the Civic Center

property where Plaintiff fell. In its memorandum in support of its motion for

summary judgment, Defendant acknowledged “the grassy area wherein the alleged

lay situated was in its custody and control at the time of the incident.” Testimony

from Gilbert Hebert, a maintenance supervisor for the Town of Gueydan, indicated

the hole arose as a result of a rosebush being removed from the property. He stated

as follows:

Q. Was there a tree taken out of the area at some point?

A. There was a bush.

Q. Okay. Is that hole where the bush used to be?

A. Yeah.

Q. Okay. What kind of bush was it?

A. I think a little rosebush.

Mr. Hebert then testified as to the process he and his staff used to fill in the hole that

was made when the rosebush was removed:

Q. Did y’all – what did y’all do after you dug up the rosebush? What
did y’all do?

A. Tried to patch it up.

Q. What were you patching it up with?

A. The dirt.

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Q. The dirt that came out when you removed it?

A. Yeah.

Q. Did you bring any additional dirt or you just used what was there?

A. Just used what we had.

...

Q. Okay. And that’s something [the hole] you noticed pretty much
every time that you would mow?

A. Well, we would put the dirt back in and we always put the grass that
we cut in it.

Q. Okay. So you were trying to kind of fill it up as you went?

A. Yes, sir.

Q. And was it something where it wasn’t staying? You would have
kept adding?

A. No. it was staying, but we always put grass on top of it to make sure
it would stay.

Q. Okay. And was there anything else that you would add on top of it
besides grass.

A. No.

Q. You never came in with some fresh topsoil?

A. No.

Mr. Hebert also acknowledged that it was common for visitors to the Civic Center

to walk through the grassy area where Plaintiff fell. He also agreed it was the safe

thing to do to make sure there were no holes in that area.

Alton LeJeune, who worked for Mr. Hebert, testified he removed the rosebush

from the area in question. He corroborated Mr. Hebert’s testimony that no new dirt

or topsoil was added to the hole after removal of the rosebush. Mr. LeJeune did state

he believed the alleged hole Plaintiff fell in was more of a dip than a hole, though he

did acknowledge he did not view the area where the hole was located until well after

the date of the accident.

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The deposition testimony of Mr. Hebert and Mr. LeJeune establishes

Defendant’s employees were aware of the hole (which they both testified they

created, by removing the rosebush). Mr. Hebert further acknowledged he knew

people often cut through the grassy area rather than walk on the sidewalk, and

testified he realized it was prudent to make sure no holes existed. Mr. Hebert also

testified that he always made sure to add grass clippings to the hole to try and cover

it when he mowed the grass, though he acknowledged he never added any topsoil or

mud to fill the hole. Accordingly, we find the testimony of Defendant’s employees

is sufficient to create a genuine issue of material fact regarding the Town of

Gueydan’s notice of the defect in their premises.

Moreover, as this court has noted “[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, 11 So.3d at 37. As can be seen from the above referenced testimony,

Plaintiff presented evidence below that Defendant knew or should have known of

the alleged defect, had an opportunity to repair the defect, and failed to do so. Notice

seems particularly evident under the facts of this case, as it was Defendant itself that

created the hazard by removing the rosebush.

The jurisprudence is clear that “when the public entity creates the defective

condition by its own substandard conduct, it is presumed to have knowledge of the

hazardous condition.” Barnett v. City of Baton Rouge, 16-222, p. 4 (La.App. 1 Cir.

10/31/16), 206 So.3d 904, 908, citing Whatley v. City of Winnfield, 35,132 (La.App.

2 Cir. 12/5/01), 802 So.2d 983, 986, writ denied, 02-0015 (La. 3/22/02), 811 So.2d

939. See also Falcon v. La. Dep’t of Transp., 13-1404 (La.App. 1 Cir. 12/19/14),

168 So.3d 476, 485, writ denied, 15-133 (La. 4/10/15), 163 So.3d 813 (where the

court explained that the public entity involved had a “duty to know what it should

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have known and take corrective measures based on that knowledge.”) We find clear

error on the trial court’s part in not finding, at a bare minimum, there were material

issues of genuine fact as to whether Defendant had knowledge of the hazardous

condition.

Plaintiff also asserts the trial court erred in finding that Plaintiff would be

unable to meet his burden of proving the hole presented an unreasonable risk of

harm. Plaintiff testified in his deposition the hole he fell in was approximately eight

inches to a foot deep and about two feet wide. Defendant takes issue with this and

argues the hole was nowhere near that size. No witness for Defendant could testify

that he viewed the hole the night or following day after Plaintiff fell. Alton LeJeune

testified he did not view the hole in question until well after the accident occurred.

To find there were no genuine material issues of fact to allow for the granting of

summary judgment in this matter, the trial court had to completely discredit and

discard Plaintiff’s testimony as to the size of the hole. Such credibility calls and

factual determinations are outside the scope of the summary judgment procedure,

and the trial court erred in making such determinations.

Likewise, we find merit in Plaintiff’s argument that the trial court erred in

granting summary judgment on the issue of reasonable care when Plaintiff offered

evidence that Defendant did not exercise reasonable care in repairing the defect and

warning the attendees of events at the civic center. Plaintiffs presented the testimony

of Mr. Hebert who stated he was aware of the hole and attempted to fill the hole on

several occasions by placing grass clippings in the hole. Notably he testified he

never filled the hole with additional dirt at any time. Further, the Mayor of the Town

of Gueydan, Chris Theriot, acknowledged in his deposition there was a duty on the

part of its employees to fix holes that arose, and that, apparently, his employees did

not do so in a satisfactory manner. He stated as follows:

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I mean, expectations of maintaining grass, yes, I expect my men
to maintain the grass. Apparently, he didn’t put enough dirt in the hole
or it subsided and it sunk.

At a minimum, Plaintiffs presented evidence which presented genuine material

issues of fact as to whether Defendant exercised used reasonable care in this case.

Therefore, summary judgment was inappropriately granted by the trial court.

DECREE

For the foregoing reasons, the trial court’s judgment granting the Town of

Gueydan’s motion for summary judgment and dismissing Plaintiff’s claims is

reversed and the matter is remanded to the trial court. Costs of this proceeding are

assessed to the Town of Gueydan in the amount of $3,829.70 in accordance with La.

R.S. 13:5112.

REVERSED AND REMANDED.

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