Opinion
CIVIL ACTION NO: 99-3415 SECTION: "R"(2)
June 16, 2000
ORDER AND REASONS
Before the Court is defendant's motion for summary judgment to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 56. For the following reasons, defendant's motion is denied.
I. Background
Plaintiff Clarence Bennett alleges that he tripped and fell while entering a convenience store at a Chevron gas station. It is undisputed that on October 8, 1998, plaintiff had finished filling his car with gas and was walking toward the convenience store to use the restroom inside. As he approached, he noticed that at least one of the doors to the store was propped open, blocking the handicap access ramp. Electing not to maneuver around the obstacle, plaintiff, who has cerebral palsy, chose to enter the store by negotiating a two to three inch step and a doorsill. He alleges that the lack of handicap access caused him to fall and injure himself.
On October 8, 1999, plaintiff sued Chevron and XYZ Insurance Company in the Twenty-Second Judicial District Court for the parish of St. Tammany, Louisiana for the damages he suffered as a result of Chevron's alleged negligence. He seeks damages in an amount to be determined by the evidence plus interest for all costs from the proceedings and any other general and equitable relief. On November 10, 1999, Chevron removed the case to this Court on the basis of diversity jurisdiction.
Defendant moves for summary judgment on the grounds that there are no material disputes of fact and that it is entitled to judgment as a matter of law. Plaintiff opposes this motion.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ. p. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). Accordingly, a court must be satisfied that no reasonable trier of fact could find for the nonmoving party. In other words, "if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden." Beck v. Texas State Bd. of Dental Examiners, 204 F.3d 629, 633 (5th Cir. 2000)
Initially, the moving party bears the burden of establishing that there are no genuine issues of material fact. If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. See id. at 322, 106 S. Ct. at 2552. The nonmovant may not rest upon the pleadings but must identify specific facts that establish a genuine issue exists for trial. See Id. at 325, 106 S.Ct. at 2553-54; Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999)
B. Negligence
Generally, to establish a defendant's negligence under Louisiana law, a plaintiff must show: "(1) the conduct in question was the cause-in-fact of the resulting harm; (2) defendant owed a duty of care to plaintiff; (3) the requisite duty was breached by the defendant; [and] (4) the risk of harm was within the scope of protection afforded by the duty breached." Peterson v. Gibraltar Savings Loan, 733 So.2d 1198, 1203-04 (La. 1999) (citing numerous cases). If a plaintiff were injured when he fell on a merchant's premises, however, he bears the additional burden of proving:
(1)The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2)The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3)The merchant failed to exercise reasonable care. . . .
La. Rev. Stat. Ann. § 9:2800.6(B) (West 2000). See White v. Wal-Mart Stores, Inc., 699 So.2d 1081, 1084 (La. 1997) ("This statute is clear and unambiguous. The statute uses the mandatory 'shall.' Thus in addition to all other elements of his cause of action, a claimant must also prove each of the enumerated requirements of Section (B)."). Cf. Crooks v. National Union Fire Ins. Co., 620 So.2d 421, 424 (La.App. 3d Cir. 1993) (finding the general principles of negligence sufficient when the accident is the result of a specific act and not solely the result of a condition found on the premises). Defendant contends that the Court must dismiss this suit because the condition of the step and the doorsill did not present an unreasonable risk of harm, and no defect or defective condition caused plaintiff's injuries.
1. Unreasonable Risk of Harm
The unreasonable risk of harm criterion "is not a simple rule of law which may be applied mechanically to the facts of the case." Oster v. Department of Transp. Dev., 582 So.2d 1285, 1289 (La. 1991) (quoting Landry v. State of Louisiana Bd. of Levee Comm'rs of Orleans Levee Dist., 495 So.2d 1284, 1287 (La. 1986)). Rather, it requires a court first "to balance the likelihood and magnitude of the risk and the utility of the thing," and then to "consider a broad range of social, economic, and moral factors [,] including the cost to the defendant of avoiding the risk and the social utility of the plaintiff's conduct at the time of the accident." Id. The existence of a condition that presents an unreasonable risk of harm, however, "cannot be inferred solely from the fact that the accident occurred." Dufour v. E-Z Serve Convenience Stores, 731 So.2d 915, 918 (La.App. 5th Cir. 1999) (finding this principle to be "well settled")
While defendant cites numerous cases where Louisiana courts have found that the negligible elevation of a doorsill and a two-to-three inch step do not present unreasonable risks of harm, none of those cases involved a handicapped person. See, e.g., Barnes v. New Hampshire Ins. Co., 573 So.2d 628 (La.App. 2d Cir. 1991) (two to three inch drop from driveway to ground did not pose unreasonable risk); Melancon v. J.B. Thibodeaux, Inc., 557 So.2d 256 (La.App. 3d Cir. 1989) (three and a half inch step did not pose an unreasonable risk); Savic v. Assurance Co. of Am., 509 So.2d 460 (La.App. 3d Cir. 1987) (doorsill did not present unreasonable risk of harm). Here, plaintiff has been diagnosed with cerebral palsy. Accordingly, what may not be an unreasonable risk for an ordinary person, may present an unreasonable risk for him. Further, that the handicapped access was blocked can create an unreasonably dangerous condition for a handicapped person. Therefore, there is an issue of fact as to whether plaintiff confronted an unreasonable risk of harm.
The doorsill, however, cannot be found to have created an unreasonable risk of harm. The premise of plaintiff's case is that he was injured because he was unable to use the handicap access ramp. But even if the handicap access ramp had not been blocked, plaintiff still would have had to negotiate the doorsill. Of course, the doorsill might have presented an obstacle independent of the blocked ramp, but plaintiff never alleges that or points to any evidence of a defective doorsill.
Defendant also contends that the height of the step and the doorsill do not present unreasonable risks because plaintiff did not perceive them to be dangerous. While that perception is "one factor in the determination of whether the condition is unreasonably dangerous," it is just that, one factor. Williams v. Leonard Chabert Med. Ctr., 744 So.2d 206, 210 (La.App. 1st Cir. 1999). Plaintiff's perception is not dispositive. Therefore, summary judgment is inappropriate because the trier of fact must determine whether the step posed an unreasonable risk of harm.
2. Causation
"Negligence is only actionable where it is both a cause in fact of the injury and a legal cause of the injury." Sinitiere v. Lavergne, 391 So.2d 821, 825 (La. 1980). Legal causation "requires a proximate relation between the actions of a defendant and the harm which occurs and such relation must be substantial in character." Id. (citing Lombard v. Serage Water Bd. of New Orleans, 284 So.2d 905 (La. 1973); Dixie Drive It Yourself System v. American Beverage Co., 137 So.2d 298 (1962)). "A proximate cause is generally defined as any cause which, in natural and continuous sequence, unbroken by any efficient, intervening cause, produces the result complained of and without which the result would have not occurred." Sutton v. Duplessis, 584 So.2d 362, 365 (La.App. 4th Cir. 1991) (citing numerous cases).
Defendant asserts that because plaintiff does not know why he fell, plaintiff cannot prove that a condition at the gas station caused his injury. (Def. Mot. Summ. J. at 10-12.) However, plaintiff testified at his deposition that he stumbled on the step, which caused him to fall or to trip. (Pl.'s Dep. at 82-83, 128.) It is true that plaintiff gave different versions of his accident in his complaint and interrogatory answers and the credibility of his accident testimony is suspect. But credibility is a jury call and as weak as plaintiff's evidence is, the Court cannot say there is no issue of fact on causation.
III. Conclusion
For the following reasons, defendant's motion for summary judgment is denied.