Opinion
DOCKET NUMBER 2023 CA 0527
01-19-2024
Tommy MILLER v. ALBERTSON’S COMPANIES, LLC
Willie G. Johnson, Jr., Sophia J. Riley, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant Tommy Miller John P. Wolff, III, Tori S. Bowling, Brandi A. Barze, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee Albertsons Companies, Inc.
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT, SECTION 26, IN AND FOR THE PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, DOCKET NUMBER C694120, HONORABLE RICHARD "CHIP" MOORE, JUDGE PRESIDING
Willie G. Johnson, Jr., Sophia J. Riley, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant Tommy Miller
John P. Wolff, III, Tori S. Bowling, Brandi A. Barze, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee Albert- sons Companies, Inc.
The petition erroneously named the defendant as "Albertson’s Companies, LLC."
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
GREENE, J.
2In this case, the plaintiff appeals the denial of a motion for new trial after his suit was dismissed by summary judgment. After review, we affirm.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Tommy Miller, filed suit against Albertsons Companies, Inc., (Albertsons) in Baton Rouge City Court on May 12, 2017. Mr. Miller alleged that he was injured on May 13, 2016, when he slipped and fell onto the pavement while entering the Albertsons store on College Drive in Baton Rouge, Louisiana.
Albertsons filed an answer on June 5, 2017, asserting that the petition failed to state a claim upon which relief could be granted and generally denying the allegations. Albertsons prayed for a judgment in its favor dismissing Mr. Miller’s demands at his cost and with prejudice. Albertsons filed a motion for summary judgment on September 27, 2019, maintaining that Mr. Miller was a frequent patron of the store, that he was fully aware of the crack in the pavement, that he acknowledged the crack was plainly visible at the time of his fall, and that he could establish no facts to show that the crack caused his fall or otherwise represented an unreasonable risk of harm.
The answer was amended on June 9, 2020.
On December 9, 2019, Mr. Miller filed a motion to transfer the suit to the Nineteenth Judicial District Court. The suit was transferred to the Nineteenth Judicial District Court on December 23, 2019. The motion for summary judgment was heard on January 10, 2021, Thereafter, on January 15, 2021, the district court signed a ruling that includes reasons for judgment, states that summary judgment was granted, and states "[j]udgment to be signed in accordance with this ruling[.]" Notice of the ruling was sent to the parties by the deputy clerk of court on January 20, 2021.
On March 5, 2021, Mr. Miller filed a motion for new trial. Albertsons opposed the motion for new trial on June 8, 2021. A hearing on the motion for new trial was set for June 21, 2021, but was passed without date. Mr. Miller later filed several motions to reset the hearing on his motion for new trial. On October 12, 2021, the matter came before the district court and the court minutes note that "[j]udgment in a previous matter 3in this case was not submitted. Judgment must be submitted and signed in accordance with previous ruling, and parties will then contact the Judge’s office to reset this matter on this Court’s docket."
Thereafter, on November 3, 2021, the district court signed a judgment granting the summary judgment and dismissing the suit with prejudice at Mr. Miller’s costs. The deputy clerk of clerk certified that the judgment was sent to all counsel of record, including Mr. Miller’s attorney, on November 5, 2021.
[1, 2] Almost a year later, on October 5, 2022, Mr. Miller filed a motion to reset the hearing on his motion for new trial. Albertsons opposed the motion, maintaining that the time delays to file a motion for new trial or an appeal had expired. Mr. Miller’s motion to reset the motion for new trial was heard on January 9, 2023. On January 31, 2023, the district court denied Mr. Miller’s motion for new trial. Mr. Mil- ler appealed that judgment on February 13, 2023.
The technical prematurity of a motion for new trial filed before the judgment was signed is cured by the signing of the judgment and becomes effective the date the judgment is signed. See Hanson v. Perkins, 484 So 2d 705, 706 (La. App. 1 Cir 1985). Therefore, Mr. Miller’s premature motion for new trial was cured and became effective upon the signing of the judgment on November 3, 2021.
Mr. Miller’s failure to file a motion to reset the hearing on the motion new trial after the judgment was signed until almost a year later is unexplained. However, until the outstanding motion for new trial was denied and the notice was mailed, the appeal delays did not begin to run. See La C.C P art 2087(A)(1). As such, the appeal delay began to run when the notice of the denial of the motion for new trial was mailed on February 2, 2023. Therefore, the appeal filed on February 13, 2023, is timely. See La C C P. art. 2087(A)(2).
[3] We consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits when it is clear from the appellant’s brief that he intended to appeal the underlying judgment. See Carpenter v. Hannan, 2001-0467 (La. App. 1 Cir. 3/28/02), 818 So.2d 226, 228-229, writ denied, 2002-1707 (La. 10/25/02), 827 So.2d 1153. It is obvious from Mr. Miller’s brief that he intended to appeal the summary judgment. Thus, we will treat the appeal as an appeal of the November 3, 2021 summary judgment.
DISCUSSION
On appeal, Mr. Miller maintains that the trial court erred in granting the motion for summary judgment because there are several genuine issues of material fact relating to visibility and the size of the sidewalk crack.
4 Summary Judgment Standard and Standard of Review
[4] An appellate court reviews the grant or denial of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Jefferson v. Nichols State University, 2019-1137 (La. App. 1 Cir. 5/11/20), 311 So.3d 1083, 1085, writ denied, 2020-00779 (La. 11/4/20), 303 So.3d 623. A court shall grant a motion for summary judgment if the pleadings, memorandum, and admissible supporting documents show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(A)(3) and (4). The summary judgment movant maintains the burden of proof. La. C.C.P. art. 966(D)(1). Jefferson, 311 So.3d at 1085.
Nevertheless, if the movant will not bear the burden of proof at trial on the issue before the court on the motion, his burden is satisfied by pointing out an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and, if appropriate, the court shall render summary judgment against him. La. C.C.P. arts. 966(D)(1) and 967(B). Campbell v. Hospital Service District No. 3 for Parish of Lafourche, 2022-1118 (La. App. 1 Cir. 8/1/23), 371 So.3d 543, 547.
[5] Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Jefferson, 311 So.3d at 1085.
Albertsons’ motion for summary judgment was based upon delictual liability pursuant to the Louisiana Civil Code arti- cles 2315, 2316, 2317, and 2317.1. Louisiana Civil Code art. 2315 provides:
We note that Mr. Miller alleged liability pursuant to La. C.C. arts. 2315, 2316, 2317, and 2317.1 as well as La. R.S. 9:2800,6, the Merchant Liability Statute. As the motion for summary judgment was not based upon La. R.S. 9:2800.6, that statute is not addressed herein.
A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would 5have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged.
Louisiana Civil Code article 2316 provides that "[e]very person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill."
Louisiana Civil Code article 2317 provides:
We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of 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.
Louisiana Civil Code article 2317.1 provides:
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
[6, 7] In Farrell v. Circle K Stores, Inc., 2022-00849, 359 So.3d 467 (La. 3/17/23), the Louisiana Supreme Court stated:
Whether a claim arises in negligence under [La. C.C.] art. 2315 or in premises liability under [La. C.C.] art. 2317.1, the traditional duty/risk analysis is the same. And now, with [La. C.C.] 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. C.C.] 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. C.C.] 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. C.C.] 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 6cause-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).
Farrell, 359 So.3d at 473.
At trial, Mr. Miller would bear the burden of proving the elements of his claims against Albertsons. Thus, for Albertsons to prevail on summary judgment, it was required to show an absence of factual support for any of the elements of Mr. Miller’s cause of action. See Farrell, 359 So.3d at 473.
DUTY/ RISK ANALYSIS
THE DUTY ELEMENT
[8, 9] The existence of a duty is a question of law. The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. Farrell, 359 So.3d at 473.
[10] Pursuant to La. C.C. arts. 2315, 2316, 2317, and 2317.1, the general rule is that the owner or custodian of property has a duty to keep the premises in a reasonably safe condition. The owner or custodian must discover any unreasonably dangerous condition on the premises, and either correct the condition or warn potential victims of its existence. See Farrell, 359 So.3d at 473-474. Consequently, we find Albertsons owed such a duty to Mr. Miller.
THE BREACH OF DUTY ELEMENT
[11, 12] Whether there was a breach of the duty owed is a question of fact or a mixed question of law and fact. Louisiana courts apply the risk/utility balancing test to make this determination. The Louisiana Supreme Court has synthesized the 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 plaintiffs activities in terms of social utility or whether the activities were dangerous by nature. Farrell, 359 So.3d at 474.
7 Risk/Utility Balancing Test
Utility of the complained-of condition
[13] The alleged defect was not intended or present by design. Here, there is no evidence the crack in the concrete was intended, nor do we otherwise find any utility to its presence in the parking lot of a commercial store. See Farrell, 359 So.3d at 474.
Likelihood and magnitude of the harm , including the obviousness and apparentness of the condition
[14–16] This factor asks the degree to which the condition will likely cause harm. If it is likely to cause ham, 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 asks whether the condition presents a risk of great or small injury and the likelihood of each. The likelihood and magnitude of the ham includes a consideration of the open and obviousness of the condition. Farrell, 359 So.3d at 474.
[17, 18] The accident happened early in the morning and it was light outside. Mr. Miller parked at one side of the Albertsons lot, realized the door on that side was locked, and then traversed the sidewalk in front of the store to get to the door on the other side. As he was walking, he fell. After he fell, he got up, looked back, and saw a crack in the concrete. Mr. Miller testified that it was a small crack.
During his deposition, Mr. Miller was asked whether it was light or dark outside at the time of his fail. He responded "[i]t was light." After his deposition and after the trial court issued its ruling, stating that the summary judgment was granted, Mr. Miller signed an affidavit contradicting this testimony. The affidavit was introduced into evidence in support of Mr. Miller’s motion for new trial but was not attached to Mr. Miller’s opposition to the motion for summary judgment. Therefore, we do not consider the affidavit in our review of the merits of the judgment granting Albertsons’ motion for summary judgment. See Duran v. Roul’s Deli Juicy Juicy, L.L.C., 2021-1600 (La. App. 1 Cir. 8/8/22), 348 So.3d 735, 737 (recognizing that, under the then-current version of La. C.C.P. art. 966(D)(2), a court may consider only those documents specifically filed in support of or in opposition to a motion for summary judgment, even if those documents appear elsewhere in the record.) See also, Ricketson v. McKenzie, 2023-0314 (La. App. 1 Cir. 10/4/23), 380 So.3d 1, 3 (holding that the amendment to La. C C P. art. 966(D)(2), effective August 1, 2023, does not apply retroactively)
The crack in the concrete was the type frequently seen in South Louisiana. It had no buckling. Mr. Miller took a photograph of the area of the parking lot where he fell, but the depth cannot be discerned from the photograph. Mr. Miller described the crack as a "separation" rather than a hole. Mr. Miller did not measure the crack. Mr. Miller was a frequent visitor to this Albertsons store and was aware of concrete cracks. The 8Albertsons’ store director, Todd Poor, had received no complaints of a fall in the area before Mr. Miller’s fall.
With regard to the magnitude of ham, anyone who would encounter a small crack in the concrete would not look at it and conclude it presents a great likelihood of ham. Considering the facts of this case, including the size and location of the crack in the concrete, we find the likelihood and magnitude of the ham to be minimal. See Farrell, 359 So.3d at 478-479.
Cost of preventing the harm
The third factor of the duty/risk analysis is the cost associated with preventing the ham. We are unable to consider this factor because the record contains no evidence pertinent to this inquiry. We note, however, that this lack of evidence does not preclude affirmation of the summary judgment. See Farrell, 359 So.3d at 479.
Nature of Mr. Miller’s activities in terms of social utility or whether the activities were dangerous by nature
Finally, the fourth factor of the risk/utility balancing test involves a consideration of the nature of Mr. Miller’s activity in terms of social utility and whether the activities were dangerous by nature. In this case, Mr. Miller was traversing the sidewalk to enter the store. While the social utility of traversing the sidewalk to enter a store may be important and it is not dangerous in nature, it does not weigh heavily in determining an unreasonably dangerous condition. See Farrell, 359 So.3d at 479.
[19] For the reasons set forth above, after applying the risk/utility balancing test, we find that the allegedly hazardous condition, a small crack in the concrete of the sidewalk, was not an unreasonably dangerous condition. Therefore, Albertsons met its initial burden of pointing out the absence of factual support for the breach element of Mr. Miller’s claims. Thereafter, the burden shifted to Mr. Miller to produce factual support sufficient to establish the existence of a genuine issue of material fact or that Albertsons was not entitled to summary judgment as a matter of law. Mr. Miller has failed to do so as no reasonable finder of fact could find that Albertsons breached the duty owed to Mr. Miller. Consequently, summary judgment in favor of Albertsons is mandated. See Farrell, 359 So.3d at 479.
9 THE CAUSE-IN-FACT ELEMENT, THE SCOPE OF THE DUTY ELEMENT, AND THE DAMAGES ELEMENT
Given our ruling that Albertsons 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. See Farrell, 359 So.3d at 479.
CONCLUSION
For the foregoing reasons, the November 3, 2021, district court judgment granting the summary judgment and dismissing the suit with prejudice at Tommy Miller’s costs is affirmed. Costs of this appeal are assessed against Tommy Miller.
AFFIRMED.