Evelyn Burlison v. State Farm Fire and Casualty Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-194

EVELYN BURLISON

VERSUS

STATE FARM FIRE AND CASUALTY
COMPANY, ET AL.

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 99,578
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

**********

VAN H. KYZAR
JUDGE

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Court composed of Van H. Kyzar, Jonathan W. Perry, and Sharon Darville Wilson,
Judges.

AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED.

R. Scott Iles
P. O. Box 3385
Lafayette, LA 70502
(337) 234-8800
COUNSEL FOR PLAINTIFF/APPELLANT:
Evelyn Burlison

Randall B. Keiser
Matthew L. Nowlin
Keiser Law Firm, P.L.C.
P. O. Box 12358
Alexandria, LA 71315-2358
(318) 443-6168
COUNSEL FOR DEFENDANTS/APPELLEES:
Orthopedic Center of Louisiana LLC
State Farm Fire & Casualty Company

Laura Beth Matthews
Lottie L. Bash
Franklin “Drew” Hoffmann
Christopher M. Chesne
Jordan S. Varnado
Faircloth Melton Sobel & Bash, LLC
105 Yorktown Drive
Alexandria, LA 71303
(318) 619-7755
COUNSEL FOR DEFENDANT/APPELLEE:
Powerhouse Investments, LLC

KYZAR, Judge.

In this slip and fall personal injury action, the plaintiff, Evelyn Burlison,

appeals the trial court’s grant of summary judgment in favor of the defendants,

Orthopedic Center of Louisiana, LLC, and State Farm Fire and Casualty Insurance

Company, and an identical grant of summary judgment in favor of the defendant,

Powerhouse Investments, LLC, dismissing the plaintiff’s demands in full. For the

reasons herein, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

On January 11, 2021, Ms. Burlison (Plaintiff), filed a petition for damages

naming as defendants, Orthopedic Center of Louisiana, LLC (OCL) and its insurer,

State Farm Fire and Casualty Insurance Company (State Farm) (collectively referred

to as “Defendants”). She alleged that while walking across the parking lot of OCL’s

Leesville office, she slipped and fell in sludge located on the parking lot’s cracked

and uneven pavement. She claimed that while it had rained previously that day, it

was not raining at the time of her accident. Plaintiff alleged that as the owner of the

parking lot, OCL was responsible for its upkeep and maintenance and that it failed

to cover the sludge with mats or to put out signs warning its patients about the hazard.

She further asserted that she sustained personal injuries as a result of her fall,

including severe headaches and injuries to her shoulder, knee, elbow/forearm, and

back.

On February 23, 2021, Defendants filed a dilatory exception of vagueness.

Following a May 3, 2021 hearing, the trial court sustained the exception and ordered

that certain language in Plaintiff’s petition be stricken. Thereafter, Defendants

answered Plaintiff’s petition, wherein they asserted that OCL, who leased its office,

was not responsible for the parking lot, but rather it was the responsibility of

Powerhouse Investments, LLC (Powerhouse), the property’s owner. In addition to

general denials, their answer set forth affirmative defenses, including that the alleged

condition of the parking lot was open and obvious, and thus, was not unreasonably

dangerous.

On September 8, 2021, Plaintiff filed a first supplemental and amending

petition, naming Powerhouse as an additional defendant. She alleged that

Powerhouse, as the property’s owner, “maintained responsibility for the

maintenance, upkeep and repair of the property during the pendency of the lease.”

Thus, Plaintiff asserted that “any negligence described in the original petition for

Damages associated with the maintenance and upkeep of the property that caused or

contributed to the accident and injuries to [Plaintiff] is also borne by [Powerhouse].”

On September 27, 2021, Defendants filed a motion for summary judgment,

asserting that “there exist no genuine issues of material fact and that Defendants are

entitled to judgment as a matter of law dismissing Plaintiff’s claims against them.”

The main emphasis of the motion was that the condition of the parking lot on the

day of the incident was open and obvious as it had been raining and the parking lot

was wet and muddy. Thus, they argued that the condition of the parking lot was not

unreasonably dangerous. Attached to Defendants’ motion were the following

exhibits: Plaintiff’s petition; Defendants’ answer and the exhibits attached to their

answer; excerpts from Defendants’ responses to Plaintiff’s requests for production;

Plaintiff’s responses to Defendants’ first requests for admission; Plaintiff’s

responses to Defendants’ first set of interrogatories; Defendants’ second requests for

admission and second set of interrogatories; and Plaintiff’s responses thereto.

Defendants filed a second motion for summary judgment on September 27,

2021, claiming again that there were no genuine issues of material fact and that they

were entitled to judgment dismissing Plaintiff’s demands. The basis for this motion

was that OCL was not responsible for maintaining the parking lot pursuant to its

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lease agreement with Powerhouse. In addition to the exhibits attached to their first

motion, Defendants further attached the affidavits of Dr. Greg Lord, Powerhouse’s

managing member, and Dr. John DeLapp, the sole member of OCL.

On October 7, 2021, Powerhouse filed a peremptory exception of no cause of

action and an answer to Plaintiff’s original and supplemental and amending petitions.

With regard to its exception, it argued that strict liability claims had been eliminated
1
by the legislature. Powerhouse further filed its own motion for summary judgment,

in which it adopted Defendants’ argument from its first summary-judgment motion

that the condition which caused Plaintiff’s fall was open and obvious, and therefore,

not unreasonably dangerous. In addition to incorporating and adopting Defendants’

memorandum, list of essential legal elements, list of essential elements necessary for

them to be entitled to judgment, and exhibits, Powerhouse also attached Plaintiff’s

first supplemental and amending petition.

A hearing on the three motions was originally set for November 15, 2021, but

then reset by order of the trial court to November 18, 2021. On November 3, 2021,

Plaintiff opposed the three motions on the grounds that there had been inadequate

time for discovery. Attached to her opposition memorandum were various letters

and emails sent back and forth between counsel for both parties. In their reply

memorandum, Defendants objected to these exhibits, asserting that they were

inadmissible as not specifically authorized by La.Code Civ.P. art. 966(A)(4).

Powerhouse also objected to the exhibits.

During the hearing on the motions, the trial court sustained Defendants’ and

Powerhouse’s objections to Plaintiff’s exhibits. It further granted Defendants’ first

1
In her memorandum in opposition to Powerhouse’s exception, Plaintiff conceded that she
did not have a claim for strict liability pursuant to La.Civ.Code arts. 2315, 2317, and 2317.1. Based
on Plaintiff’s concession, the trial court dismissed her strict liability claim on November 18, 2021.
3

motion for summary judgment, as well as Powerhouse’s motion for summary

judgment. Written judgment in favor of Defendants and Powerhouse was rendered

on December 8, 2021. It is from this judgment that Plaintiff appeals.

On appeal, Plaintiff sets forth two assignments of error (case changed to

sentence case):

1. The trial court erred in granting the motion for summary
judgment of all Defendants thereby dismissing the claims of
Plaintiffs [sic] in a civil action for premises liability in a parking
lot where the Plaintiff slipped, fell and sustained injuries on a
buildup of “gunk” in the parking lot which was neither “clean”
or “well maintained”.

2. The trial court erred in granting Defendants’ objection and
alternative motion to strike Plaintiff’s exhibits “A” through “F”
attached to Plaintiff’s opposition to the motions for summary
judgment, demonstrating the lack of any cooperation whatsoever
in initiating much less completing discovery in this matter.

Defendants answered the appeal, asserting that the trial court correctly granted

summary judgment in their favor. Alternatively, they argue that if the judgment is

reversed on the open and obvious issue, judgment should be rendered in their favor

on their second summary-judgment motion because, as lessee, they were not

responsible for maintaining the parking lot.

OPINION

“[S]ummary 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).

Summary judgment procedure is now favored under our law, and the procedure

“shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2).

Louisiana Code of Civil Procedure Article 966(D)(1) provides the burden of proof

in summary judgment proceedings, as follows:

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

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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.

“Summary judgment should be granted, if the parties have had the opportunity

to conduct ‘adequate discovery’ and the evidence shows there is ‘no genuine issue

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

Laforge v. Golden Nugget Lake Charles, LLC, 20-110, p. 3 (La.App. 3 Cir. 11/4/20),

307 So.3d 266, 269; La.Code Civ.P. art. 966(A)(3).

Appellate review of the grant of summary judgment is de novo, using the same

criteria that governs the trial court’s determination of whether summary judgment is

appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342

(La.1991). However, a trial court’s decision to continue a motion for summary

judgment to allow additional time for discovery is reviewed pursuant to an abuse of

discretion standard. Ellis v. La. Bd. of Ethics, 14-112 (La.App. 1 Cir. 12/30/14), 168

So.3d 714, writ denied, 15-208 (La. 4/17/15), 168 So.3d 400.

Because the outcome of Plaintiff’s second assignment of error will affect our

review of the trial court’s grant of summary judgment, we will address that

assignment of error first.

Assignment of Error Number Two

In her opposition to Defendants’ motion, Plaintiff attached two letters and four

emails, wherein Defendants attempted to convey to Plaintiff’s counsel that the office

manager he wished to depose was an employee of Powerhouse, who, at that time,

was not a party to the suit. Defendants objected to these documents on the grounds

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that they were not appropriate summary judgment exhibits pursuant to La.Code

Civ.P. art. 966(A)(4).

Louisiana Code of Civil Procedure Article 966(A)(4) provides, in pertinent

part, that “[t]he only documents that may be filed in support of or in opposition to

the motion are pleadings, memoranda, affidavits, depositions, answers to

interrogatories, certified medical records, written stipulations, and admissions.”

Moreover, the trial court “may consider only those documents filed in support of or

in opposition to the motion for summary judgment and shall consider any documents

to which no objection is made.” La.Code Civ.P. art. 966(D)(2). “Any objection to

a document shall be raised in a timely filed opposition or reply memorandum.” Id.

Further, the trial court “shall consider all objections prior to rendering judgment[]”

and “shall specifically state on the record or in writing which documents, if any, it

held to be inadmissible or declined to consider.” Id.

In this instance, Defendants and Powerhouse both timely objected to

Plaintiff’s opposition exhibits in their reply memoranda. After reviewing the

exhibits, we agree that they do not comprise competent summary judgment evidence.

Comment (c) of the 2015 Official Revision Comments to La.Code Civ.P. art. 966

(emphasis added) states: “Subparagraph (A)(4), which is new, contains the exclusive

list of documents that may be filed in support of or in opposition to a motion for

summary judgment[]” and that the “Subparagraph intentionally does not allow the

filing of documents that are not included in the exclusive list, such as photographs,

pictures, video images, or contracts, unless they are properly authenticated by an

affidavit or deposition to which they are attached.” Therefore, the letters and emails

attached to Plaintiff’s opposition are not within the exclusive list of authorized

documents, nor were they authenticated as required by La.Code Civ.P. art. 966(A)(4).

Thus, we find no error in the trial court’s ruling excluding these exhibits.

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Assignment of Error Number One

In this assignment, Plaintiff argues that the trial court erred in granting

summary judgment in favor of Defendants and Powerhouse, dismissing her premise-

liability claim that her slip and fall resulted from the neglected condition of the

parking lot, whose surface contained a buildup of “gunk.”

At the hearing on the motions, Plaintiff did not argue the substance of the

motions, i.e., that Defendants and Powerhouse are not liable because the condition

of the parking lot on the day of the accident was open and obvious, and thus, not

unreasonably dangerous. Rather, Plaintiff argued that it was improper for the trial

court to grant summary judgment in favor of Defendants and Powerhouse because

she had not been granted adequate time for discovery prior to the hearings. She

makes the identical argument on appeal.

However, we agree with our brethren of the first circuit that “lack of discovery

is grounds for requesting a continuance for a hearing, not an element on the merits

of a motion for summary judgment.” Ellis, 168 So.3d at 725. Further, this court has

stated, “La.Code Civ.P. art. 966(A) provides that a defendant’s motion for summary

judgment may be made at any time. There is no requirement that an answer be filed

prior to defendant’s motion for summary judgment.” Edwards v. Larose Scrap &

Salvage, Inc., 10-596, p. 3 (La.App. 3 Cir. 12/8/10), 52 So.3d 1009, 1012. Delaying

hearing a summary-judgment motion for additional discovery is not necessary, and

the decision to do so lies in the discretion of the trial court:

It is not an abuse of a trial court’s wide discretion to entertain a motion
for summary judgment before discovery has been completed.
Christakis v. Clipper Constr., LLC, 12-1638 (La.App. 1st Cir.4/26/13)
117 So.3d 168, 171, writ denied, 13-1913 (La.11/8/13), 125 So.3d 454.
The trial court has discretion to render summary judgment if
appropriate or to allow further discovery. Id. Although the parties must
be given the opportunity to conduct “adequate discovery” to present
their claims, see La. C.C.P. art. 966C(1), there is no absolute right to
delay action on a motion for summary judgment until discovery is

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complete. The only limit to the trial court’s discretion is that the parties
must be given a fair opportunity to present their claims. Id.

Ellis, 168 So.3d at 725.

“A motion to continue has been held to be the proper method for asserting that

a motion for summary judgment is premature because the adverse party has not been

able to conduct adequate discovery[,]” and our courts “have also recognized that the

need for additional time to conduct discovery and the circumstances delaying

discovery can be documented in other pleadings.” Laforge, 307 So.3d at 270 (citing

Roadrunner Transp. Sys. v. Brown, 17-40 (La.App. 4 Cir. 5/10/17), 219 So.3d 1265).

Here, Plaintiff filed a motion to continue the hearing on the motions, which

were originally set for November 15. However, she only requested a continuance of

the hearing until November 18. Specifically, the motion to continue stated, in part,

as follows:

3.

Undersigned counsel has a conflict on that date and, has
requested that the hearings be continued. Counsel for all defendants
have been contacted and have no objection to this continuance.

[4].

Therefore, it is requested that the hearings on the above motions
and exception be continued and reset for November 18, 2021 at 9:00
a.m.

The trial court granted the continuance, resetting the hearing for November

18, as prayed for. Having only requested a specific continuance of three days, we

find no abuse of discretion by the trial court when it considered the motions on

November 18, 2021. Accordingly, we reject Plaintiff’s argument that the trial court

should have denied Defendants’ and Powerhouse’s motions because she had

inadequate time for discovery.

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Having found no abuse of discretion by the trial court in hearing the motions,

we next review the record de novo to determine whether there are issues of material

fact in dispute based on the properly filed and authorized exhibits, pleadings, and

memorandum in support of and in opposition to the motions. We will address

Defendants’ and Powerhouse’s motions separately.

Defendants’ Motion

Defendants asserted that the filings offered in support of their first summary

judgment motion show that the hazard complained of by Plaintiff was open and

obvious, and thus, not unreasonably dangerous. At its essence, Plaintiff’s claim is

that she slipped and fell because of sludge located on the surface of the parking lot

after it had rained and that she should have been warned about the parking lot’s

unreasonably dangerous condition.

Louisiana Civil Code Article 2317 states, “We are responsible, not only for

the damage occasioned by our own act, but for that which is caused by . . . things we

have in our custody.” Louisiana Civil Code Article 2317.1 further provides, in 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.

Thus, the owner or person having custody of immovable property has a duty

to keep such property in a reasonably safe condition. La.Civ.Code arts. 2317,
2
2317.1, and 2322. However, an owner is not responsible for all injuries resulting

from any risk posed thereby, but, rather, only for those injuries caused by an

unreasonable risk of harm to others. Simon v. CenturyLink, Inc., 21-412 (La.App. 1

Cir. 12/22/21), 340 So.3d 88.

2
Louisiana Civil Code Article 2322 pertains to damage caused by a building’s ruin.
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We have described the question of whether a defect presents an
unreasonable risk of harm as “a disputed issue of mixed fact and law or
policy that is peculiarly a question for the jury or trier of the facts.”
Reed v. Wal-Mart Stores, Inc., 97-1174, p. 4 (La.3/4/98), 708 So.2d
362, 364 (quoting Tillman v. Johnson, 612 So.2d 70 (La.1993) (per
curiam)). As a mixed question of law and fact, it is the fact-finder’s
role—either the jury or the court in a bench trial—to determine whether
a defect is unreasonably dangerous. Thus, whether a defect presents an
unreasonable risk of harm is “a matter wed to the facts” and must be
determined in light of facts and circumstances of each particular case.
E.g., Dupree v. City of New Orleans, 99-3651, pp. 13-14 (La.8/31/00),
765 So.2d 1002, 1012 (citation omitted); Reed, 97-1174 at p. 4, 708
So.2d at 364.

To aid the trier-of-fact in making this unscientific, factual
determination, this Court has adopted a risk-utility balancing test,
wherein the fact-finder must balance the gravity and risk of harm
against individual societal rights and obligations, the social utility of
the thing, and the cost and feasibility of repair. See, e.g., Reed, 97-1174
at p. 5, 708 So.2d at 365; Boyle v. Board of Sup’rs, Louisiana State
Univ., 96-1158 (La.1/14/97), 685 So.2d 1080, 1083; Entrevia [v.
Hood], 427 So.2d [1146,] 1149. Specifically, we have synthesized this
risk-utility balancing test to a consideration of four pertinent factors:
(1) the utility of the complained-of condition; (2) the likelihood and
magnitude of harm, including the obviousness and apparentness of the
condition; (3) the cost of preventing the harm; and (4) the nature of the
plaintiff’s activities in terms of its social utility or whether it is
dangerous by nature. E.g., Dauzat v. Curnest Guillot Logging, Inc., 08-
0528, p. 5 (La.12/2/08), 995 So.2d 1184, 1186-87 (per curiam);
Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, pp. 9-
10 (La.2/20/04), 866 So.2d 228, 235; Pitre v. Louisiana Tech. Univ.,
95-1466, pp. 12-16 (La.5/10/96), 673 So.2d 585, 591-93.

The second prong of this risk-utility inquiry focuses on whether
the dangerous or defective condition is obvious and apparent. Under
Louisiana law, a defendant generally does not have a duty to protect
against an open and obvious hazard. See, e.g., Hutchinson, 03-1533 at
p. 9, 866 So.2d at 234. In order for a hazard to be considered open and
obvious, this Court has consistently stated the hazard should be one that
is open and obvious to all, i.e., everyone who may potentially encounter
it. E.g., Caserta v. Wal-Mart Stores, Inc., 12-0853, p. 1 (La.6/22/12),
90 So.3d 1042, 1043 (per curiam); Dauzat, 08-0528 at p. 3, 995 So.2d
at 1186; Hutchinson, 03-1533 at p. 9, 866 So.2d at 234; Pitre, 95-1466
at p. 11, 673 So.2d at 591; Murray v. Ramada Inns, Inc., 521 So.2d
1123, 1136 (La.1988) (“[A] potentially dangerous condition that should
be obvious to all comers is not, in all instances, unreasonably
dangerous.”). Although the “open and obvious” argument suggests a
disguised application of contributory negligence or assumption of the
risk, when the risk is open and obvious to everyone, the probability of
injury is low and the thing’s utility may outweigh the risks caused by
its defective condition. MARAIST & GALLIGAN, LOUISIANA

10

TORT LAW § 14.03, p. 14-9. See also Frank L. Maraist, H. Alston
Johnson III, Thomas C. Galligan, Jr., & William R. Corbett, Answering
a Fool According to His Folly: Ruminations on Comparative Fault
Thirty Years On, 70 LA. L.REV. 1105, 1107 (2011) (“The [C]ourt,
however, has recognized . . . situations in which conduct falls within
traditional assumption of the risk principles but does not overlap with
conduct that customarily is considered contributory negligence . . . [one
of which is where] the victim voluntarily encounters a known risk that
is ‘obvious to all comers,’ sometimes also referred to as ‘open and
obvious risk.’”).

Broussard v. State ex rel. Office of State Bldgs., 12-1238, pp. 9-11 (La. 4/5/13), 113
So.3d 175, 183-84 (alterations in original) (footnote omitted).

While Defendants moved for summary judgment, it is Plaintiff who will bear

the burden of proof at trial to show that the parking lot’s condition was unreasonably

dangerous. Thus, the motion did not require Defendants to negate all essential

elements of Plaintiff’s claim, but rather to point out the absence of factual support

for one or more elements essential to her claim. Once this burden was accomplished,

the burden shifted to Plaintiff to produce factual support sufficient to establish the

existence of a genuine issue of material fact or that Defendants were not entitled to

judgment as a matter of law. La.Code Civ.P. art. 966(D)(1). We find that

Defendants did point to the absence of factual support for at least one of the essential

elements of the Plaintiff’s claim, i.e., that the condition of the parking lot where the

fall occurred was not open and obvious, and thus, unreasonably dangerous.

In support of their motion, Defendants filed multiple exhibits, including

Plaintiff’s responses to their interrogatories. In her petition for damages, Plaintiff

asserted that she went to OCL on the day of the incident and “[i]t had rained

previously that day, but had stopped at the time she had gotten to the office.” She

then alleged that “[w]hen she attempted to walk through the parking lot, [she] slipped

and fell in ‘sludge’ on the cracked and uneven pavement in the parking lot of the

office.” Nowhere in the petition does Plaintiff allege that the “sludge” on the cracked

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and uneven pavement was a hidden defect or condition which she could not see and

avoid by the use of ordinary caution.

In her answers to Defendants’ first set of interrogatories, Plaintiff, when asked

to describe the incident at hand, stated under oath: “I slipped and fell down in the

parking lot. The lot had a thick mold/sludge.” Again, there is no allegation of fact

made that the condition was a hidden hazard that was not visible and avoidable by

the use of ordinary caution. In her answers to Defendants’ second request for

admission of facts and second set of interrogatories, Plaintiff authenticated the

photograph she took of the “thick mold/sludge” on the parking lot that she asserted

caused her fall. A review of the photograph clearly reflects the visible mud or sludge

that she asserted was unreasonably dangerous. However, it is also clearly open and

obvious to all by the use of ordinary care. This is especially true on a day that it had

been raining, which Plaintiff alleged in her petition and acknowledged in her

discovery responses. Based on the foregoing, we find that Defendants satisfied their

burden of pointing out an absence of factual support for an element essential to

Plaintiff’s claim.

Thus, at this point in the hearing, the burden clearly shifted to Plaintiff to

establish the existence of material facts in dispute or that Defendants were not

entitled to judgment as a matter of law. La.Code Civ.P. art. 966(D)(1). Plaintiff

failed to offer any proof establishing the existence of a material fact as to the nature

or the condition of the parking lot or that the condition was not open and obvious.

Plaintiff’s only offerings related to the allegations of lack of adequate time for

discovery, which were ruled inadmissible.

“A party opposing a motion for summary judgment cannot rely on the bare

allegations of their pleadings but must respond by affidavits detailing facts that show

the existence of a genuine issue.” Perkins v. Gregory Mfg. Co., 95-1396, pp. 3-4

12

(La.App. 3 Cir. 3/20/96), 671 So.2d 1036, 1038, writ denied, 96-971 (La. 5/31/96),

673 So.2d 1039. Here, Plaintiff failed to respond via affidavits establishing the

existence of a genuine issue of material fact. Accordingly, we affirm the trial court’s

grant of summary judgment in favor of Defendants, dismissing Plaintiff’s demands

with prejudice.

Powerhouse’s Motion

In its motion for summary judgment, Powerhouse stated the following:

NOW INTO COURT COMES POWERHOUSE
INVESTMENTS, LLC (“Powerhouse”), through undersigned counsel,
and pursuant to Louisiana Code of Civil Procedure articles 966 and 967,
respectfully requests that this Court DISMISS all claims by plaintiff,
Evelyn Burlison, without prejudice, as she is unable to sustain her
burden of proof on her claims.

In support of this motion, Powerhouse incorporates and adopts
the First Motion for Summary Judgment by [OCL] and [State Farm],
memorandum in support, List of Essential Legal Elements, List of
Essential Elements Necessary for Movers to be Entitled to Judgment,
and exhibits as if copied herein in in extenso. Powerhouse is entitled to
summary judgment for the same reasons as those set forth in the First
Motion for Summary Judgment by [Defendants] because the
“mold/sludge” that plaintiff allegedly slipped on constituted an open
and obvious condition that is not unreasonably dangerous.

Additionally, in support of this motion, Powerhouse incorporates
herein its attached memorandum in support and the following
additional exhibit:

Exhibit A: First Supplemental and Amending Petition for
Damages[.]

In Huggins v. Amtrust Insurance Co. of Kansas, Inc., 20-516, p. 5 (La.App. 1

Cir. 12/30/20), 319 So.3d 362, 366, the first circuit, in performing a de novo review

on the grant of summary judgment in favor of the plaintiffs, held:

The trial court, and this court, on de novo review, may only
consider evidence that is admissible under the express provisions of La.
C.C.P. Arts. 966-67. Horrell v. Alltmont, 19-0945 (La. App. 1 Cir.
7/31/20), 309 So.2d 754, 761-62. We may consider only those
documents filed in support of or in opposition to the motion for
summary judgment and shall consider any documents to which no
objection is made. La. C.C.P. Art. 966D(2) (emphasis added). The

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only documents that may be filed in support of or in opposition to the
motion are pleadings, memoranda, affidavits, depositions, answers to
interrogatories, certified medical records, written stipulations, and
admissions. La. C.C.P. Art. 966A(4).

In holding that the plaintiffs failed to prove their entitlement to coverage under

the defendants’ insurance policies, the court noted that they relied on evidence

submitted in support of the defendants’ motion at the hearing on the cross motions.

The court stated:

[T]o the extent the Hugginses refer to other exhibits appearing in the
record, i.e., USAA’s summary judgment evidence, we note that we
cannot consider those documents in reviewing the Hugginses’ motion,
because they were not specifically filed in support of or in opposition
to the Hugginses’ motion for summary judgment. James as Co-
Trustees of Addison Family Trust v. Strobel, 19-0787 (La. App. 1 Cir.
6/24/20), 2020 WL 3446635 *4.

We recognize the duplicative nature of requiring the Hugginses
to include their own copies of the USAA and Technology policies in
the record, when the very same policies already appear in the record,
albeit, attached to their opponent’s cross motion for summary judgment.
Under prior summary judgment law, in a case where cross motions for
summary judgment were filed, the district court was able to consider
each party’s motion as an opposition to the other party’s motion and to
consider all evidence offered on the cross motions. See Bouquet v.
Williams, 16-0134 (La. App. 1 Cir. 10/28/16), 206 So.3d 232, 236-37;
also see Smart v. Calhoun, 49,943 (La. App. 2 Cir. 7/29/15), 174 So.3d
168, 172-73 (finding that former La. C.C.P. Art. 966F(2) did not require
a separate opposition pleading when the parties filed cross motions for
summary judgment on the same issue). However, under current La.
C.C.P. Art. 966D(2), in reviewing the grant of summary judgment to
the Hugginses, we may consider only those documents specifically
filed in support of or in opposition to the Hugginses’ motion for
summary judgment.

Id. at 366-67.

In this instance, although their motions were heard together, Defendants and

Powerhouse filed separate motions for summary judgment. Thus, despite its attempt

to incorporate and adopt Defendants’ exhibits into its own motion, the only evidence

we may consider relative to Powerhouse’s motion is Plaintiff’s first supplemental

and amending petition. However, as that petition only alleged that Powerhouse, as

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the owner of the property, was responsible for the “maintenance, upkeep and repair

of the property during the pendency of” OCL’s lease, we find that Powerhouse has

failed to point out an absence of factual support for an essential element of Plaintiff’s

claim. Thus, the burden of proof never shifted to Plaintiff to prove that the condition

of the parking lot was unreasonably dangerous. Accordingly, the judgment of the

trial court granting summary judgment in favor of Powerhouse is reversed, and the

matter is remanded to the trial court for further proceedings.

Answer to the Appeal

Having affirmed the grant of summary judgment in favor of Defendants on

the open and obvious issue, we need not consider their answer to appeal as the issues

raised therein have been rendered moot.

DECREE

The trial court judgment in favor of Orthopedic Center of Louisiana, LLC and

State Farm Fire and Casualty Insurance Company, dismissing Evelyn Burlison’s

claims against them with prejudice, is affirmed; and the trial court judgment in favor

of Powerhouse Investments, LLC is reversed and the matter is remanded for further

proceedings. The costs of this appeal are assessed fifty percent to Evelyn Burlison

and fifty percent to Powerhouse Investments, LLC.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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