Deanna Smith v. State of La., Dotd

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-797

DEANNA SMITH

VERSUS

STATE OF LOUISIANA, THROUGH THE
DEPARTMENT OF TRANSPORTATION AND
DEVELOPMENT

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20185856
HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

**********

Court composed of Candyce G. Perret, Charles G. Fitzgerald, and Guy E. Bradberry,
Judges.

REVERSED AND REMANDED.

Carl J. Rachal
Jeramy Moody
Bart Bernard
Bart Bernard Injury Lawyers
1031 Camellia Boulevard
Lafayette, LA 70508
(337) 989-2278
COUNSEL FOR PLAINTIFF/APPELLANT:
Deanna Smith

Matthew Charles Nodier
Daniel E. Brauner
Amanda E. McGowen
Kimberly L. Wood
Nodier Law, LLC
6663 Jefferson Highway
Baton Rouge, LA 70806
(225) 448-2267
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana, through the Department
of Transportation and Development

Donald Guidry, Jr.
Assistant Attorney General
556 Jefferson Street, 4th Floor
Lafayette, LA 70501
(337) 262-1700
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana, through the Department
of Transportation and Development

PERRET, Judge.

Mrs. Deanna Smith, Plaintiff-Appellant, appeals the trial court’s September 7,

2022 Judgment granting Defendant-Appellee’s, State of Louisiana through the

Department of Transportation and Development (“LADOTD”), summary judgment

and dismissing Mrs. Smith’s claims with prejudice. For the following reasons, we

reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY:

According to the parties, LADOTD contracted with JB James Construction,

LLC (“JB James”) in 2017 to improve and widen Verot School Road in Lafayette.

The project included work on the intersection of Camellia Boulevard and Verot

School Road. LADOTD provided JB James with the plans and specifications for

the project, which included requirements for the placement of warning signs and

barricades such as “construction ahead” and “road closed” signs.

On November 20, 2017, Mrs. Smith was taking a routine, brisk walk and

attempted to cross the intersection at Camellia Boulevard and Verot School Road.

Mrs. Smith took this route often. While she was aware the area was a construction

zone, she alleges that she attempted her crossing “at a place designated for

pedestrians to traverse [the] intersection.” However, before she could complete her

traversal of Verot School Road, Mrs. Smith tripped and fell over a construction string

or cable that she alleges was not readily discernable.

As a result of her fall, Mrs. Smith injured her right elbow, which ultimately

required two surgeries. She filed suit against LADOTD and later amended her

petition to name additional defendants, including JB James and Fouke Sand and

Gravel LLC (“Fouke”). 1 The petitions set forth the following allegations of

negligence:2

a) By failing to provide adequate maintenance on the
roadway and/ or sidewalks in question;

b) By failing to provide adequate inspections and repair of
the roadway and or sidewalks [in] question;

c) By creating an unreasonably dangerous condition(s) to
exist by placing a cable/ obstacle in such a manner that a pedestrian
walking along the area would encounter the hazard, leaving the
dangerous condition for [an] unreasonable length of time, failing to
place any warning/ signage/ flags noting of the hazardous conditions,
and any other unreasonably dangerous conditions proved at trial;

d) By failing to provide adequate maintenance on the road in
question;

e) By failing to provide adequate inspections and repair of
the road in question;

f) By allowing for unreasonably dangerous conditions to
exist on the roadway and/ or sidewalk for unreasonable lengths of time,
including stretching an ankle high cable across the roadway and/ or
sidewalk and adjacent roadside, and any other unreasonably dangerous
conditions proved at trial[.]

JB James and Fouke filed a joint motion for summary judgment on June 2,

2020, alleging that Mrs. Smith could not prove her negligence claim because the

defect she alleged was open and obvious and they were entitled to immunity pursuant

to La.R.S. 9:2771. In support of their motion, JB James and Fouke attached the

affidavit of Jeff James, owner of JB James, who attested that the plans were provided

by LADOTD, all plans and specifications were followed, and the plans did not call

1
The other defendants, Lafayette City-Parish Consolidated Government and Ernest P.
Breaux Electrical, LLC, were dismissed in March 2019 and September 2019, respectively.
2
The allegations set forth herein are a culmination of those alleged in the original petition
as amended by the First Supplemental and Amended Petition for Damages.

2

for “a designated place for pedestrians to traverse the intersection” nor was such a

space created. The affidavit by Prentice Don Young, the JB James Project Manager

for the site, was also attached. Mr. Young attested that he inspected the site fifteen

minutes before Mrs. Smith’s fall and all signs and barricades were present and in

their correct locations, which were set forth by the LADOTD plans. Copies of the

LADOTD signage plat as well as the inspection log were included. Finally, Mrs.

Smith’s deposition was attached. In support of her opposition to summary judgment,

Mrs. Smith only included photographs of the construction area, taken by her husband

on an unknown date and produced during discovery. The trial court granted

summary judgment in favor of JB James and Fouke on September 15, 2020 (“the JB

James Judgment”). The JB James Judgment was appealed to this court (“Smith I”).

LADOTD filed several motions for summary judgment in this case, one which

was filed on August 20, 2020, and set for January 19, 2021. That hearing date was

continued until February 22, 2021. On February 5, 2021, Mrs. Smith filed an

opposition, which included a document produced by LADOTD in discovery,

“SiteManager Daily Summary.” LADOTD explained that this document was a

“daily summary report from October 20, 2017 through December 20, 2017.”

According to the minutes, the trial court denied LADOTD’s motion.

Additionally, while the JB James Judgment was on appeal, both LADOTD

and Mrs. Smith filed additional motions for summary judgment on March 22, 2021,

and April 28, 2021, respectively. LADOTD alleged no duty was owed to Mrs. Smith

because the condition was open and obvious, and alternatively, the notice

requirement of La.Civ.Code art. 2317.1 cannot be proven. As supporting exhibits,

LADOTD attached the affidavits of Jeff James and Prentice Don Young with

3

corresponding attachments,3 as well as excerpts from Mrs. Smith’s deposition with

photographs.

Mrs. Smith sought partial summary judgment on LADOTD’s liability arguing

that the string/cable was not an open and obvious hazard and that LADOTD had

notice because it, or its contractors, put the string/cable in that location. Mrs. Smith

then made similar arguments in her opposition to the LADOTD’s motion for

summary judgment. In both her motion and her opposition, Mrs. Smith provided

her deposition, color photographs of the construction scene, and a newly acquired

affidavit from a witness, Patrick Reed. Mr. Reed came upon Mrs. Smith while she

was on the ground after her fall and came to her aid. In the process of reaching Mrs.

Smith, Mr. Reed also tripped over the string/cable, nearly falling. Mr. Reed attested

in pertinent part:

4. At the time, Verot School Road was undergoing
construction to widen the roadway and Deanna Smith was seated on the
ground designated for a roadway but was not yet being used for
vehicular traffic due to the construction.

5. I am familiar with this intersection and roadway in
question as I live in the vicinity and traversed this area daily around the
time of the incident.

6. I pulled over my vehicle and went to assist Deanna Smith.
As I approached Deanna Smith, I tripped over construction string that
was strewn across the roadway approximately ten (10) inches off the
ground. I nearly fell to the ground as the construction string was really
thin and not visible to me nor was the construction string open and
obvious to the general public as evidenced by the photographs taken at
the scene. (See Exhibit A attached hereto.)

7. The photographs shown in Exhibit A accurately depict the
construction zone and the scene on the day that Deanna Smith fell.

....

3
These were the same affidavits attached to the JB James motion for summary judgment.

4

9. The construction zone was not roped off nor was there any
prohibition for pedestrians to cross the roadway of Verot School Road.
In fact, there was a designated area for pedestrians to cross Verot School
Road.

10. The area that Deanna Smith fell was within the designated
place for pedestrians to cross Verot School Road. (See Exhibit B
attached hereto).

11. Prior to this incident I would see Deanna Smith walking
regularly with her dogs in this area. Additionally, I would see other
pedestrians walking the same route as Deanna Smith on the regular
basis as this was the only area to cross over Verot School Road onto
Camelia Blvd.

In LADOTD’s September 24, 2021 memorandum in opposition to Mrs.

Smith’s partial motion for summary judgment, LADOTD admitted that it inspected

the site “every day” and attached its response to discovery and “SiteManager Daily

Summary” from October 20, 2017 through November 20, 2017.

After a hearing, both motions were denied. The judgement on the LADOTD

motion, specified, “there are genuine issues on [sic] material facts whether the

DOTD had notice of the condition complained of before the alleged accident” and

“there are genuine issues on [sic] material fact whether the condition complained of

was open and obvious.” LADOTD sought supervisory writs with this court, docket

number 21-537, which entered a writ denial on December 16, 2021.

Thereafter, this court handed down its opinion in Smith I. Smith v. State

through Dep’t of Transp. & Dev., 21-192 (La.App. 3 Cir. 3/3/22), 350 So.3d 879.

This court affirmed summary judgment in favor of JB James finding that no duty

was owed to Mrs. Smith as the construction zone and activity was an open and

obvious hazard, and obvious and apparent construction warnings were properly

placed ahead of and in the construction zone. Judge Cooks issued a dissent, finding

“the myriad of factual conclusions resolved by the trial court, and the majority

5

herein, is wholly inappropriate at the summary judgment state of proceedings.” Id.

at 893.

After the Smith I opinion was rendered, LADOTD filed another motion for

summary judgment on March 30, 2022. LADOTD asserted that summary judgment

was proper and the trial court should apply the law of the case doctrine based on

Smith I and, alternatively, that Mrs. Smith would not be able to prove the notice

requirement of La.Civ.Code arts. 2317 and 2317.1. Attached in support were the

affidavits of Jeff James and Prentice Don Young, with the corresponding signage

plat, excerpts from Mrs. Smith’s deposition with the google map showing her

walking route attached, the JB James Judgment signed September 15, 2020, and the

October 11, 2021 hearing transcript. Mrs. Smith argued, as she does on appeal, that

the string/cable was not open and obvious, that the law of the case doctrine does not

apply because new evidence, i.e., Mr. Reed’s affidavit, is before the court, and that

LADOTD had notice because it or its contractor placed the cable/string across the

road and/or Mr. Young’s inspection should have discovered the string. Mrs. Smith

attached her deposition, photographs of the construction zone, Mr. Reed’s affidavit,

Judge Cooks’s dissent in Smith I, and Mr. Young’s affidavit. At the hearing, Mrs.

Smith asked the court to take the entirety of the record into evidence with respect to

her opposition. No objection was made by LADOTD.

The trial court applied the law of the case doctrine and granted LADOTD’s

motion for summary judgment. The judgment was signed on September 7, 2022.

Thereafter, Mrs. Smith brought this timely appeal asserting two assignments of error:

1. Whether the Trial Court erred in applying the “law of the
case” doctrine when the “law of the case” doctrine does not preclude
the Trial Court from considering new and persuasive evidence that was
not previously available for consideration that presents a compelling
justification to prevent manifest injustice.

6

2. Whether Defendants were entitled to summary judgment
on the grounds that the defect was open and obvious where Plaintiff
testified, she never saw the string running across the road before she
fell[,] and photographs show the string was difficult to see.

STANDARD OF REVIEW:

A trial court’s grant of summary judgment is reviewed on appeal de novo.

Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. Thus, the appellate court

considers the same criteria as did the trial court, and grants summary judgment where

“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); See Dunn v. City of Kenner, 15-1175 (La.

1/27/16), 187 So.3d 404. “A fact is ‘material’ when its existence or nonexistence

may be essential to plaintiff’s cause of action . . . if they potentially insure or preclude

recovery, affect a litigant’s ultimate success, or determine the outcome of the legal

dispute.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639

So.2d 730, 751 (citations omitted). “A genuine issue is one about which reasonable

persons could disagree. Only if reasonable persons could reach only one conclusion

is summary judgment on that issue appropriate.” King v. Town of Clarks, 21-1897,

pp. 1-2 (La. 2/22/22), 345 So.3d 422, 422 (citations omitted). Furthermore,

credibility determinations are inappropriate on summary judgment and should

remain for determination by the factfinder. Hutchinson v. Knights of Columbus,

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

ASSIGNMENT OF ERROR NUMBER ONE, LAW OF THE CASE:

On appeal, Mrs. Smith’s first assignment of error asserts that the trial court

incorrectly applied the law of the case doctrine to grant LADOTD summary

judgment. We agree.

7

“Under the doctrine of ‘law of the case,’ an appellate court will generally

refuse to reconsider its own rulings of law on a subsequent appeal in the same case.”

Hernandez v. La. Workers’ Comp. Corp., 15-118, p. 5 (La.App. 3 Cir. 6/3/15), 166

So.3d 456, 458-59. The first circuit has further explained:

The reasoning behind the law-of-the-case doctrine is to avoid re-
litigation of the same issue, to promote consistency of result in the same
litigation, and to promote efficiency and fairness to both parties by
affording a single opportunity for the argument and decision of the
matter at issue. Jones v. McDonald’s Corp., [97-2287, La.App. 1 Cir.
11/6/98),] 723 So.2d [492] at 494, citing Louisiana Land and
Exploration Co. v. Verdin, [96-2629, (La. 12/13/96),] 681 So.2d [63] at
65. Re-argument in the same case of a previously decided point will be
barred where there is simply a doubt as to the correctness of the earlier
ruling. The law-of-the-case doctrine is not an inflexible law, thus
appellate courts are not absolutely bound thereby and may exercise
discretion in application of the doctrine. Jones v. McDonald’s Corp.,
723 So.2d at 495. The doctrine is not applied in cases of palpable error
or where, if the law of the case were applied, manifest injustice would
occur. Jones v. McDonald’s Corp., 723 So.2d at 494, citing Glenwood
Hosp., Inc. v. Louisiana Hosp. Serv., Inc., 419 So.2d 1269, 1271
(La.App. 1st Cir.1982). The doctrine applies only against those who
were parties to the case when the earlier decision was rendered, and
who thus have had their day in court. Day v. Campbell–Grosjean
Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105, 107 (1971).

State ex rel. Div. of Admin., Office of Risk Mgmt. v. Nat’l Union Fire Ins. Co. of La.,

13-375, p. 9 (La.App. 1 Cir. 1/8/14), 146 So.3d 556, 562–63. The law of the case

doctrine “does not apply when the underlying operative facts upon which the court’s

prior decision was based have changed.” State ex rel. Div. of Admin., Office of Risk

Mgmt. v. Nat’l Union Fire Ins. Co. of La., 10-689 (La.App. 1 Cir. 2/11/11), 56 So.3d

1236, 1247 n. 7, writ denied, 11-849 (La. 6/3/11), 63 So.3d 1023.

In Smith I, this court set forth the two theories of liability available to Mrs.

Smith in asserting she sustained injuries due to an unreasonably dangerous

condition, i.e., negligence under La.Civ.Code arts 2315 and 2316 and strict liability

under La.Civ.Code art. 2317, and the applicable analysis of both:

8

Under both theories of liability, a plaintiff must prove that the condition
of the thing presented an unreasonable risk of harm, or was defective,
and that this condition of the thing was a cause-in-fact of her injuries.
Seal v. State Farm Fire & Cas. Co., 00-2375 (La.App. 4 Cir. 3/20/02),
816 So.2d 868, writ denied, 02-1083 (La. 6/14/02), 817 So.2d 1160.
Both theories are analyzed under the duty/risk analysis. Schreiber v.
Jewish Fed’n of Greater New Orleans, 02-992 (La.App. 4 Cir. 1/29/02),
839 So.2d 51, writ denied, 03-613 (La. 6/6/03), 845 So.2d 1089. “The
duty-risk analysis is employed on a case by case basis.” Daye v. Gen.
Motors Corp., 97-1653, p. 7 (La. 9/9/98), 720 So.2d 654, 659. Under
this analysis, the plaintiff must prove five different elements: (1) the
defendant had a duty to conform his or her conduct to a specific
standard of care; (2) the defendant failed to conform his or her conduct
to the appropriate standard of care; (3) the defendant’s substandard
conduct was a cause-in-fact of the plaintiff’s injuries; (4) the
defendant’s substandard conduct was a legal cause of the plaintiff’s
injuries; and (5) actual damages. Christy v. McCalla, 11-0366 (La.
12/6/11), 79 So.3d 293.

On motion for summary judgment, the burden of
proof remains with the movant. However, if the moving
party will not bear the burden of proof on the issue at trial
and points out that there is an absence of factual support
for one or more elements essential to the adverse party’s
claim, action, or defense, then the non-moving party must
produce factual support sufficient to establish that he will
be able to satisfy his evidentiary burden of proof at trial.
If the opponent of the motion fails to do so, there is no
genuine issue of material fact and summary judgment will
be granted. See La. C.C.P. art. 966(D)(1); see also Schultz
v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1006.

Larson v. XYZ Ins. Co., 16-745, p. 7 (La. 5/3/17), 226 So.3d 412, 416.

The existence of a duty is a question of law. Peterson v.
Gibraltar Sav. & Loan, 98-1601, 98-1609 (La. 5/18/99), 733 So.2d
1198.

....

In general, the owner or occupier of land has a duty to keep the
property in a reasonably safe condition. Giorgio v. Alliance Operating
Corp., 05-2 (La. 1/19/06), 921 So.2d 58. This includes a duty to
discover any unreasonably dangerous conditions on the premises and
either correct the condition or warn potential victims of its existence.
Madden v. Saik, 511 So.2d 855 (La.App. 4 Cir. 1987), writ denied, 514
So.2d 131 (La.1987). Moreover, one doing construction work has a
duty to properly label, mark, or barricade places in a construction site
that present an unreasonable risk of harm to a passerby. Martin v. Boh

9

Bros. Constr. Co., LLC, 05-1300 (La.App. 4 Cir. 6/7/06), 934 So.2d
196. Notwithstanding, a pedestrian has a duty to see that which should
be seen and is bound to observe his course to see if his pathway is clear.
Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.
2/20/04), 866 So.2d 228.

In cases such as the present one, the facts and surrounding
circumstances of each case control and the test applied requires the
consideration of whether the construction site was maintained in a
reasonably safe condition for persons exercising ordinary care and
prudence. In such instances, the courts have adopted a risk-utility
balancing test to determine whether such a condition is unreasonably
dangerous, wherein the trier of fact balances the gravity and the risk of
harm against the individual and societal utility and the cost and
feasibility of repair. See Bufkin v. Felipe’s La., LLC, 14-288 (La.
10/15/14), 171 So.3d 851.

The courts have created the risk-utility balancing test to a
consideration [sic] 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 social utility or whether the activities were
dangerous by nature. Id.

Smith, 350 So.3d at 884-85.

The Smith I court spent time considering the second risk-utility factor and

whether the condition was open and obvious. If the hazard is open and obvious, “the

condition may not be unreasonably dangerous, and the defendant may owe no duty

to the plaintiff.” Id. at 885. The court reviewed the summary judgment evidence

establishing the presence of road closure signs and barricades; inspection logs and

the JB James inspector’s affidavit that fifteen minutes prior to Mrs. Smith’s fall those

barricades and signs were in their proper place; and Mrs. Smith’s deposition

establishing her awareness of the on-going construction in the area, the fact that she

was walking her dog briskly through the construction zone, and that she could not

recall the presence of the large signs and barricades on the date of her fall, though

she was adamant no cones blocked her path.

10

Ultimately, the court considered whether the specific presence of the

string/cable within the construction zone, which was otherwise identified as a

construction zone, was an unreasonably dangerous condition that required a specific

warning. Mrs. Smith argued that the area she traversed was a pedestrian path

through the construction zone, and the existence of the path created a duty on

defendants to warn of the tripping hazard. The defendants presented evidence that

the plans and specifications did not set forth a pedestrian walkway through the

intersection. Meanwhile, the court found that the only evidence Mrs. Smith

presented to support the existence of a pedestrian walkway was her testimony, which

fluctuated and was inconsistent throughout her deposition, and a photograph

showing gravel connecting the dug-up portion of the road with the concrete that was

poured for the new lane construction. Furthermore:

Smith has failed to present any evidence that, even if such a pedestrian
pathway was not included in the construction contract, it appeared that
pedestrians enjoyed at least implied permission to cross through the
construction site. At no point in her deposition did Smith contend that
the Defendants’ workers observed her or any other pedestrians crossing
through the construction site at this intersection at any time. See Shafer
v. State, through Dep’t of Transp. & Dev., 590 So.2d 639 (La.App. 3
Cir. 1991).

Smith, 350 So.3d at 890. Ultimately, the court concluded

the Defendants properly placed construction warning signs ahead of
and in the construction zone and [] these warning signs and the
construction activity were obvious and apparent. Moreover, because
the Defendants were neither required to provide a pedestrian walkway
nor were they shown to have knowledge of such activity, they had no
duty to more specifically warn of the yellow construction string. Thus,
Smith, a pedestrian who chose to briskly walk through a construction
zone, had a duty to see that which should be seen and is bound to
observe whether the chosen path was clear. See Hutchinson [v. Knights
of Columbus, 03-1533 (La. 2/20/04),] 866 So.2d 228.

Id. The Smith I court concluded that Mrs. Smith failed to carry her burden of proof

on summary judgment:

11

After the Defendants showed that Smith would be unable to bear
her burden to prove an essential element of her negligence action,
namely that the Defendants owed her a duty, then the burden shifted to
her to demonstrate that she would be able to meet the burden at trial.
See Schultz v. Guoth, 10-343 (La. 1/19/11), 57 So.3d 1002. Despite this
burden, Smith failed to produce any affidavit, deposition, or other
admissible evidence that the Defendants did have a duty to further warn
pedestrians, such as she, who were aware of this construction.

....

Because Smith failed to show, in opposition to the Defendants’
motion for summary judgment, that she would be able to bear her
burden at trial to prove a duty was owed by Defendants, summary
judgment in favor of the Defendants was properly granted by the trial
court.

Id. at 890-91.

LADOTD’s motion for summary judgment similarly argued that no duty was

owed to Mrs. Smith4 because the allegedly hazardous condition was “obvious and

apparent” and suggested the trial court, and now this court, should apply the Smith I

ruling on that issue to LADOTD’s motion for summary judgment. Alternatively,

LADOTD argued Mrs. Smith cannot prove that LADOTD had notice of the alleged

condition. Mrs. Smith, on the other hand, argued against application of the law of

the case doctrine because she has produced new evidence since the JB James motion

and Smith I was decided. Alternatively, Mrs. Smith argues that the Smith I decision

was incorrect.

The new evidence presented by Mrs. Smith was the affidavit of Mr. Reed. Mr.

Reed’s affidavit corroborates Mrs. Smith’s testimony regarding the existence and

visibility, or lack thereof, of the string. In fact, Mr. Reed himself tripped on the string

when he went to check on Mrs. Smith but did not fall. He also similarly attested that

4
We note that whether a condition is obvious and apparent is actually a risk-utility factor
used in determining breach of a duty. See Farrell v. Circle K Stores, Inc., 22-849 (La. 3/17/23),
359 So.3d 467.

12

the area in which Mrs. Smith fell was not roped off and was a “designated place for

pedestrians to cross Verot School Road.” He further attested to seeing other

pedestrians traverse this area on a regular basis prior to Mrs. Smith’s fall.

We find that the production of Mr. Reed’s affidavit assists Mrs. Smith in

meeting her burden of proof on summary judgment, which she could not accomplish

in the prior appeal. Considering this new evidence and the fact that the application

of the law of the case doctrine is discretionary, we decline to apply the law of the

case doctrine herein.

ASSIGNMENT OF ERROR NUMBER TWO, SUMMARY JUDGMENT:

We now consider the appropriateness of summary judgment, specifically, the

issue of whether there are any issues of genuine material fact regarding whether there

was an unreasonably dangerous condition for which LADOTD failed to warn

pedestrians (i.e., whether LADOTD breached its duty to Plaintiff) and whether

LADOTD had notice of the condition.

Summary judgment on this issue of an unreasonably dangerous
condition is warranted upon a finding that no reasonable juror could
have found that the defendant was in breach of the duty. If the
defendant meets that burden of proof, and the plaintiff fails to establish
that he or she will be able to establish the breach element at trial,
summary judgment in favor of the defendant is mandated.

Farrell v. Circle K Stores, Inc., 22-849, p. 16 (La. 3/17/23), 359 So.3d 467, 479–80.

As previously quoted from Smith, 350 So.3d at 884-85:

In general, the owner or occupier of land has a duty to keep the
property in a reasonably safe condition. Giorgio v. Alliance Operating
Corp., 05-2 (La. 1/19/06), 921 So.2d 58. This includes a duty to
discover any unreasonably dangerous conditions on the premises and
either correct the condition or warn potential victims of its existence.
Madden v. Saik, 511 So.2d 855 (La.App. 4 Cir. 1987), writ denied, 514
So.2d 131 (La.1987). Moreover, one doing construction work has a
duty to properly label, mark, or barricade places in a construction site
that present an unreasonable risk of harm to a passerby. Martin v. Boh

13

Bros. Constr. Co., LLC, 05-1300 (La.App. 4 Cir. 6/7/06), 934 So.2d
196.

Recently, the supreme court in reviewing whether a pool of water on the

defendant’s property was an open and obvious hazard, reiterated the following

regarding premise liability claims:

Whether a claim arises in negligence under La.Civ.Code art.
2315 or in premises liability under La.Civ.Code art. 2317.1, the
traditional duty/risk analysis is the same. And now, with La.Civ.Code
art. 2317.1’s requirement of actual or constructive knowledge of a
defect, the result under either should be the same. In any event, a claim
under La.Civ.Code art. 2315 typically focuses on whether the
defendant’s conduct of allowing an unreasonably dangerous condition
to exist on its premises is negligent, while a La.Civ.Code art. 2317.1
claim focuses on whether the thing itself is defective; i.e., unreasonably
dangerous. But, when the legislature eliminated strict liability for
defective things in one’s custody by adding La.Civ.Code art. 2317.1, a
negligence standard replaced it. The requirements of actual or
constructive knowledge of the defect and proof that the defendant could
have prevented damage from the defect by exercising reasonable care
evidences this shift. We will utilize a duty/risk analysis to determine
whether liability exists. Malta v. Herbert S. Hiller Corp., 21-209, p. 11
(La. 10/10/21), 333 So.3d 384, 395 (citing Posecai v. Wal-Mart Stores,
Inc., 99-1222, p. 4 (La. 11/30/99), 752 So.2d 762, 765).

Under the duty/risk analysis, the plaintiff must prove five
separate elements: (1) the defendant had a duty to conform his conduct
to a specific standard (the duty element); (2) the defendant’s conduct
failed to conform to the appropriate standard (the breach element); (3)
the defendant’s substandard conduct was a cause-in-fact of the
plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s
substandard conduct was a legal cause of the plaintiff’s injuries (the
scope of duty element); and, (5) proof of actual damages (the damages
element). Id. (citing Boykin v. Louisiana Transit Co., Inc., 96-1932, pp.
8-9 (La. 3/4/98), 707 So.2d 1225, 1230). If the plaintiff fails to prove
any one element by a preponderance of the evidence, the defendant is
not liable. Id. (citing Mathieu v. Imperial Toy Corp., 94-952, p. 4 (La.
11/30/94), 646 So.2d 318, 322).

At trial, Plaintiffs would bear the burden of proving the elements
of their claims against Defendants. Thus, for Defendants to prevail on
summary judgment, they were required to show an absence of factual
support for any of the elements of Plaintiffs’ cause of action.

14

Farrell, 359 So.3d at 473. While the duty element is a question of law, in this case,

“to keep the premises in a reasonably safe condition” and discover and correct or

warn of unreasonably dangerous conditions, the question of breach is one “of fact or

a mixed question of law and fact.” Id. at 473-74.

In Broussard v. State ex rel. Office of State Buildings, 12-1238, p. 9 (La.

4/5/13), 113 So.3d 175, 183-84 (footnote omitted), the supreme court further

explained:

the question of whether 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.” 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 . . . 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.[5]

In determining a breach of duty, we consider the risk-utility 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 social

utility or whether the activities were dangerous by nature.” Farrell, 359 So.3d at

474. “If the application of the risk/utility balancing test results in a determination

5
The supreme court in Farrell, however, cautioned that this mixed question of law and
fact does not prohibit summary judgment. Instead, the court stated:

Summary judgment, based on the absence of liability, may be granted upon a
finding that reasonable minds could only agree that the condition was not
unreasonably dangerous; therefore, the defendant did not breach the duty owed. In
such instance, the plaintiff would be unable to prove the breach element at trial.

Farrell, 359 So.3d at 478.

15

that the complained of hazard is not an unreasonably dangerous condition, a

defendant is not liable because there was no duty breached.” Id. at 478 (emphasis

added).

We will take the factors out of turn. As to the utility of the complained-of

condition, the Farrell court stated, “[i]f it was meant to be there, it often will have

social utility, and in the balancing test, weigh against a finding that the premises was

unsafe.” Id. at 474. Here, there is no evidence of the string’s purpose, but it appears

to serve some function in the ongoing construction for maintenance and repairs of

the road. This court in Smith, 350 So.3d at 885, stated, “Undergoing road repairs

and renovations to a main roadway and intersections is necessary and desirable[;]”

thus weighing against a finding that the construction site was unsafe.

Skipping to factor three, there is no evidence regarding the cost of prevention,

and, as in Farrell, this court is unable to consider this factor.

The fourth factor looks at the social utility and inherent danger of Mrs. Smith’s

actions. Mrs. Smith was simply out on a walk, which does not have a particular

social utility but is not inherently dangerous by nature. Thus, this factor “does not

weigh heavily as a consideration in determining an unreasonably dangerous

condition.” Farrell, 350 So.3d at 479.

Returning to the second factor, the court in Farrell, 350 So.3d at 474,

explained:

The likelihood of the harm factor asks the degree to which the
condition will likely cause harm. If it is likely to cause harm, that
weighs in favor of finding it unreasonably dangerous. If it is unlikely
to cause harm, that weighs in favor of it not being unreasonably
dangerous. The magnitude of the harm factor asks whether the
condition presents a risk of great or small injury and the likelihood of
each. The likelihood and magnitude of the harm, includes a
consideration of the open and obviousness of the condition.

16

“For a hazard to be considered open and obvious, it must be one that is open and

obvious to all who may encounter it.” Id. at 478.

In Farrell, the plaintiff injured herself when she stepped in a pool of water at

a gas station. While her husband pumped gas, the plaintiff took their dog for a walk

in a grassy area at the edge of the gas station parking lot. To reach the area, she had

to cross a large pool of water. Although crossing at the narrowest part of the water,

the plaintiff was unsuccessful in crossing and fell. She alleged that the slippery

substance in the water was the hazard, not the pool of water itself. In conducting

their breach of duty analysis, the supreme court considered the obviousness and

apparentness of the condition. The court noted that the size and location of the

condition is relevant. For instance, the same pool of water located at the store

entrance, rather than the edge of the parking lot, may be unreasonably dangerous due

to its location in a “customarily traversed area[.]” Id. at 475. The Farrell court

concluded that the pool of water in this case was a minimal magnitude of harm

considering “the location of the pool of water, the size and condition thereof, and the

fact that the condition was apparent to all who may encounter it[.]” Id. at 479.

Ultimately, the court concluded the plaintiff failed to show she would carry her

burden of proof at trial on the breach element of her claim:

For the reasons set forth above, after applying the risk/utility
balancing test, we find that the allegedly hazardous condition, be it the
pool of water at the edge of the parking lot or the slippery substance
contained within the water, was not an unreasonably dangerous
condition. Therefore, Defendants met their initial burden of pointing
out the absence of factual support for the breach element of Plaintiffs’
claims. Thereafter, the burden shifted to Plaintiffs to produce factual
support sufficient to establish the existence of a genuine issue of
material fact or that Defendants are not entitled to judgment as a matter
of law. Plaintiffs have failed to do so as no reasonable juror could find
that Defendants breached the duty owed to Plaintiffs. Consequently,
summary judgment in favor of Defendants is mandated.

17

Further, on the issue of breach, Plaintiffs also advance the
argument that the water leak began on June 28, 2019, and Circle K
discovered the leak and the resulting standing water, but failed to timely
call the City of Pineville to repair the leak or to take any action to warn
customers of the danger presented. This argument fails because the
standing water did not create an unreasonably dangerous condition.
Whether they failed to eliminate or warn against it is irrelevant since
we find it is not unsafe.

....

Given our ruling that Defendants did not breach a duty, we
pretermit any further discussion of the cause-in-fact element, the scope
of the duty element, and damages elements herein.

Id.

In Raziano v. Lincoln Property Co., 520 So.2d 1213 (La.App. 5 Cir. 1988),

the court concluded that whether a large hole within a construction zone was an open

and obvious condition was a fact to be determined after a full trial on the merits, not

on summary judgment. The plaintiff was a volunteer fireman responding to a fire at

an apartment complex that was under construction. After attempting to put out the

fire, the firemen were ordered to pull out from the building. The plaintiff was

picking up lines in ankle deep water “when he suddenly stepped into a deep hole

filled with water” and was injured Id. at. 1215. It was later determined that the hole

“was an excavation for an unfinished sewer main for the complex.” Id. In addition

to arguing that a fireman assumes the risk of injury in his duty fighting fires, the

defendants in this case also argued that “the hole, absent the water, was clearly

observable and that it was unnecessary for the landowner to place warning signs or

barricades[.]” Id. at 1218. The court concluded the issue was not proper for

summary judgment:

There is, however, another standard which may well apply in the instant
case; that is the maxim that it is the duty of one doing construction work
to properly label, mark, or barricade places in the construction site that
present an unreasonable risk of harm to persons using the area.

18

Dunaway v. Rester Refrigeration Service, Inc., 428 So.2d 1064
(La.App. 1 Cir.1983); Sullivan v. Gulf States Utilities Company, 382
So.2d 184 (La.App. 1 Cir.1980).

. . . Whether or not an unmarked and unbarricaded hole of that
size in a construction site presented an unreasonable risk of harm which
required marking by the landowner or contractor doing the work, and
whether the fact that ankle deep water covering the area and obscuring
the actual landscape exculpated the owner and transformed the danger
into a hazard of the professional rescuer, are questions of fact to be
determined by the trial court after a full trial on the merits at which all
the facts are fully developed.

Id. at 1218-19.

We reach a result similar to Raziano herein. Regarding the second factor,

clearly, a string at ankle height can pose a high risk of harm, specifically a tripping

and falling risk, to an unknowing pedestrian who comes upon it. However, we must

consider whether the string was obvious and apparent. As the supreme court has set

forth, the condition must be obvious and apparent to all.

LADOTD presented evidence that signs and barricades warning of the

construction zone were present and in their correct place at the time Mrs. Smith fell.

Additionally, evidence was presented that the LADOTD plans and specifications did

not require a pedestrian passageway and no passage was present. Furthermore, the

crosswalk button was disengaged. Thus, we conclude that LADOTD shifted the

burden to Mrs. Smith to prove the string was unreasonably dangerous.

Mrs. Smith presented her own testimony as well as Mr. Reed’s that the string

was difficult to discern and caused both to trip. While the string is vaguely present

in the photographs in evidence, the photographs are not of great quality and make it

difficult to determine the visibility of the string. Considering both Mrs. Smith and

Mr. Reed did not see the string and, in fact, tripped over the string, a reasonable

19

person could find the condition was not open and obvious to all who may encounter

it.

We acknowledge the area was under construction and the construction zone,

as a whole, was marked. However, the testimony of Mrs. Smith and Mr. Reed’s

affidavit suggest that these warnings were not enough to notify pedestrians of the

presence of an ankle high string, as both still tripped over the string despite knowing

the area was a construction zone. Their statements also suggest that the area

remained open to pedestrians. Despite LADOTD’s evidence that no pedestrian

walkway was set forth in the plans, both Mrs. Smith and Mr. Reed testified that

pedestrians continued to cross the intersection in this location and that the area was

not blocked off to pedestrians. Thus, reasonable persons could disagree on whether

the area remained a customarily traversed area, which could support a finding that

the string was an unreasonably dangerous hazard due to its location, and whether the

construction signs were enough to warn pedestrians that they may encounter a

difficult to see, ankle high string crossing the pathway. Thus, this factor may weigh

against a finding that the string was not unreasonably dangerous.

Based on the foregoing we find that reasonable persons could disagree

regarding the likelihood of the harm factor, including whether it was open and

obvious to all who encounter it, as well as whether the string was ultimately

unreasonably dangerous and whether LADOTD breached its duty to Plaintiff.

Despite this finding, LADOTD also argued that Mrs. Smith would not be able

to carry her burden in proving that LADOTD had actual or constructive notice

pursuant to La.Civ.Code art. 2317.1.

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 the act of

20

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[:]”

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.

La.Civ.Code art. 2317.1.

Even where LADOTD was a custodian of the construction site, or had garde

over the area, Mrs. Smith still must show that LADOTD knew or should have known

of the ruin, vice, or defect and that, in exercising reasonable care, the damage could

have been prevented. At this summary judgment hearing, there was evidence that

LADOTD provided the plans and specifications for the construction job and that the

work was performed in accordance with the plans and specifications provided by

LADOTD. Despite Mrs. Smith’s assertion that Prentice Young of JB James

conducted an inspection of the site only fifteen minutes before her fall, his affidavit

specifies that he was to conduct daily inspections “of the signs and barricades.” It

does not state that he conducted an inspection of the entire construction zone or that

he looked, or was required to look, for any hazards within the construction zone.

However, as the entire record was admitted at the hearing, and no objection

was made by LADOTD, we note that an LADOTD inspection log exists within the

record, which was previously attached to a summary judgment motion filed by Mrs.

Smith and was attached to LADOTD’s opposition to a different summary judgment

motion filed by Mrs. Smith. In that opposition, as mentioned previously, LADOTD

admitted that it inspected the site every day and those inspections were documented

21

by the “SiteManager Daily Summary” from October 20, 2017, through November

20, 2017, produced in response to discovery, and both documents were attached as

an exhibit to the opposition. On at least one of those days, the summary shows that

LADOTD did have direct oversight of the project and corrected a contract worker

that was not performing the work in accordance with LADOTD’s plans and

specifications. On the date of Mrs. Smith’s fall, the summary states that the inspector

was “Eldridge, Josh” and that the “J.B. James day crew worked from 7:00 am – 5:45

pm.” In fact, in that opposition, LADOTD argued that “at the very least there is a

genuine issue as to whether the daily inspections by the DOTD were reasonable

under these circumstances.” We agree.

We find that the evidence showing LADOTD provided daily site inspections,

at a minimum, raises a genuine issue regarding LADOTD’s daily involvement and

constructive notice of the hazard. Thus, summary judgment is not proper at this

time.

DECREE:

For the foregoing reasons, the trial court’s September 7, 2022 Judgment

granting the State of Louisiana through the Department of Transportation and

Development’s motion for summary judgment and dismissing Deanna Smith’s

claims with prejudice is reversed and remanded for further proceedings. The costs

of this appeal are assessed to Appellee, State of Louisiana through the Department

of Transportation and Development.

REVERSED AND REMANDED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

22