White et al v. BRE Nola Property Owner, LLC et al

Filing 34

ORDER denying 16 Motion for Summary Judgment. Signed by Judge Jay C. Zainey on 6/18/18. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PATRICIA S. WHITE and
ERNEST L. WHITE

CIVIL ACTION

VERSUS

NO. 17-7907

BRE NOLA PROPERTY OWNER, LLC, et al

SECTION A (3)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc. 16) filed by Defendants,
BRE NOLA Property Owner, LLC and Zurich American Insurance Company. Plaintiff Patricia
S. White opposes the motion (Rec. Doc. 26) and Defendants have replied. (Rec. Doc. 30). The
motion, set for submission on May 16, 2018, is before the Court on the briefs without oral
argument. This matter is set to be tried to a jury beginning on July 9, 2018. Having considered
the motion, memoranda of counsel, the record, and the applicable law, the Court finds that
Defendants’ Motion for Summary Judgment (Rec. Doc. 16) is DENIED for the reasons set forth
below.
I.

Background

Plaintiff Patricia S. White traveled from her home in Mobile, Alabama to New Orleans
with her two sisters on June 14, 2016. The women were planning on spending the night in New
Orleans to attend a local event. Upon arriving in New Orleans, the women visited a local restaurant
to eat lunch then proceeded to check-in at the Hampton Inn and Suites on Carondelet Street located
in the city’s Central Business District. Once checked in at the hotel, Plaintiff proceeded to take a
smoke-break. Because guests were not allowed to smoke inside, Plaintiff exited the hotel’s main
entrance/exit facing Carondelet Street then turned to the right towards the hotel’s outdoor smoking
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area. 1 Around 6:10 p.m., Plaintiff began smoking her cigarette at the smoking area. According to
photographs in the record, the smoking area consists of a small raised brick platform, or “landing,”
that abuts the hotel near the entrance. The landing also has a smoker’s pole that smoker’s use to
dispose of cigarettes. While smoking her cigarette, Plaintiff states that there were several others
doing the same, but she recalls having a conversation with a middle-aged man. Plaintiff further
states that although she does not recall whether the ground around the smoking area was wet or
dry, she does remember it raining on that particular day. (Rec. Doc. 16-4, pp. 6–11). Upon
finishing her cigarette, Plaintiff proceeded to put the cigarette out in a smoker’s pole located on
the landing. According to her deposition, Plaintiff believes she stepped up onto the landing to
smoke, but upon stepping back after disposing of her cigarette, she tripped and fell because of the
height difference between the landing and the sidewalk. Id. at 20. Plaintiff’s hip hit the ground
first followed by her ankle. After her fall, Plaintiff was taken to the University Medical Center by
ambulance. Plaintiff alleges her fall resulted in serious bodily injury and seeks general damages,
lost wages, loss of earning capacity, medical expenses, expert witness fees, and all other court
costs. (Rec. Doc, 1-1).
A main point of contention in this lawsuit is the smoking landing. According to the exhibits
and deposition testimony presented by both parties, the smoking area is located a few steps away
from the front entrance of the hotel. Defendants’ expert, Kevin Vanderbrook, describes the landing
as follows:
The area of the incident is located on the exterior of the Hampton Inn hotel. There
is a raised brick platform which serves as a smoking area for guests. Additionally,
there is a fire exit from the interior stairwell which provides access to the street and
opens to this platform. The platform measures approximately 66 ½ inches wide
and approximately 63 ½ inches deep. The platform is finished with a combination

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Plaintiff also stated that this was her first time staying at this particular hotel, and she was unaware of the hotel’s
particular smoking area until she ventured outside to smoke.

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of herringbone and soldier course brick pavers. There is an ashtray located on the
platform for disposing of cigarette butts.
(Rec. Doc. 16-18, p. 5). According to Vanderbrook’s conclusions, the “raised platform at the
emergency exit/smoking platform location is finished with brick pavers in contrasting patterns
which make the edge readily apparent to persons paying a reasonable amount of care and
attention.” Id. at p. 7. Vanderbrook also concludes that the “edge of the platform is readily
apparent due to a contrasting pattern in the bricks.” Id.
On the other hand, Plaintiff’s expert, Mitchell Wood, notes that “[s]ince the brick was the
same on the sidewalk as the ‘smoking’ platform, the surfaces can appear to blend. The brick
platform edge would appear indistinguishable unless notified or ‘forwarned.’” (Rec. Doc. 26-5,
p. 3). Wood also states that the landing’s dropoff was difficult to discern due to the similar brick
paver surface of the landing and the abutting sidewalk. Wood ultimately concludes that “in [his]
judgment, this brick platform is clearly not ‘apparent’ to a pedestrian unfamiliar with the
premises.” (Rec. Doc. 26-5). With the relevant facts provided, the Court now outlines the
applicable legal standard.
II.

Legal Standard

Summary judgment is appropriate only if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,” when viewed in the
light most favorable to the non-movant, “show that there is no genuine issue as to any material
fact.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing Anderson v.
Liberty Lobby, Inc., 447 U.S. 242, 249–50 (1986)). A dispute about a material fact is “genuine”
if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.
(citing Anderson, 477 U.S. at 255). The court must draw all justifiable inferences in favor of the
non-moving party. Id. (citing Anderson, 477 U.S. at 255).
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Once the moving party has initially shown “that there is an absence of evidence to support
the non-moving party’s cause,” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the nonmovant must come forward with “specific facts” showing a genuine factual issue for trial. Id.
(citing Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587
(1986)).

Conclusional allegations and denials, speculation, improbable inferences,

unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific
facts showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (1993)).
III.

Law and Analysis

Plaintiff asserts that the smoker’s landing at issue outside of the Hampton Inn constituted
a “dangerous and/or defective condition” causing her to fall and sustain injuries. Specifically,
Plaintiff’s Petition for Damages states:
The cause of plaintiff’s accident and injuries was the dangerous, defective
and ruin condition of the raised platform on the premises owned by defendant, in
the following but not exclusive particulars:
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)

Allowing a dangerous and/or defective condition to exist;
Failing to inspect for such a dangerous and/or defective condition;
Failure to provide a safe smoking area for its guests;
Violation of City, State and Federal Codes and laws which violation was a direct
cause of the accident;
Knowing the ruin, vice or defect existed and failing to correct the same;
Failure to exercise reasonable care to discover and/or correct the ruin, vice or
defect;
Having known or should have known that the damage sustained herein was
foreseeable and could have been prevented by the exercise of reasonable care;
Failing to warn plaintiff of the dangerous change in elevation from the platform to
the sidewalk;
Failure to provide guardrails/handrails on the raised platform to prevent guests from
falling off the raised platform;
Failure to adequately illuminate the designated smoking area where the accident
occurred;
Any and all other acts of negligence to be proven at trial.

(Rec. Doc. 1-1, pp. 2–3).

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The substantive law governing this negligence action is Louisiana state law. See Erie
Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Under Erie, this Court must first look to the final
decisions of the Louisiana Supreme Court in order to determine the appropriate Louisiana law.
Howe v. Scottsdale Ins. Co., 204 F.2d 624, 627 (5th Cir. 2000) (citing Labiche v. Legal Sec. Life
Ins. Co., 31 F.3d 350, 351 (5th Cir. 1994)). If the Louisiana Supreme Court has not ruled on an
issue, then a federal court must make an “Erie guess” to determine “as best it can” what the
Louisiana Supreme Court would decide. Id. (quoting Krieser v. Hobbs, 166 F.3d 736, 738 (5th
Cir. 1999)). In making an Erie guess in the absence of a ruling from the state’s highest court, a
federal court may look to the decisions of intermediate appellate state courts for guidance. Id.
(citing Matheny v. Glen Falls Ins. Co., 152 F.3d 348, 354 (5th Cir. 1998)).
According to Louisiana Civil Code article 2317.1, custodial liability is codified as follows:
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.
La. Civ. Code art. 2317.1. Under this article, Plaintiff bears the burden of proving: (1) the property
that caused the damage was in the “custody” of the defendant; (2) the property had a condition that
created an unreasonable risk of harm to persons on the premises; (3) the unreasonably dangerous
condition was a cause-in-fact of the resulting injury; and (4) the defendant had actual or
constructive knowledge of the risk. Id.; Ledet v. United States, 16-383, 2018 WL 2010024, p. *2–
3 (E.D. La. April 30, 2018) (citations omitted). Additionally, plaintiffs must show that the
owner/custodian failed to take adequate steps to remedy the defect. Id.; see La. Civ. Code. art.

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2317.1. Here, Defendant contends that the elevated landing posed an open and obvious risk, and
as such, was not unreasonably dangerous. 2
The motion currently before the Court turns on the second element—whether the property
had a condition that created an unreasonable risk of harm to persons on the premises. In
determining whether the risk of harm posed by a defect is “unreasonably dangerous,” courts
generally employ a risk-utility balancing test in which they consider the following four factors:
“(1) the utility of the complained-of condition; (2) the likelihood and magnitude of the harm, which
includes 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.” Lester v. Valero Refining-Meraux, LLC, No. 14-80, 2015 WL 729703, at *3 (E.D. La.
Feb. 19, 2015) (citing Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La. 12/2/08); 995 So.2d
1184, 1186–87 (citing Hutchinson v. Knights of Colombus, Council No. 5747, 03-1533 (La.
2/20/04); 866 So.2d 228, 235))). Because the duty of an owner is governed by a reasonableness
standard, “where a risk of harm is obvious, universally known and easily avoidable, the risk is not
unreasonable.” Id. (citing Hutchinson, 866 So.2d at 236). As such, when a risk is obvious to all,
an owner has no duty to warn of or prevent any injury which may arise from the defect and is not
liable for negligence. Id. (citing Henshaw v. Audubon Park Com’n, 605 So.2d 640, 641 (La. App.
4 Cir. 1992)).
Here, considering the first factor of the risk-utility balancing test, the elevated landing
appears to have a utility in that “there is a fire exit door adjacent to [the] landing. If the landing
did not exist, then the door would exit out to a sharp drop-off, which would create a hazard to

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Because they do not bear the burden of proof at trial, Defendants are required only to show that Plaintiff is unable to
prove an essential element of her negligence claim. The question of custody is at issue, but was not thoroughly briefed.
The remaining elements of knowledge and causation are not at issue in this motion, and the Court will only address
Defendants’ argument that the elevated landing did not pose an unreasonable risk.

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patrons escaping the upper floor hotel rooms, walking down the stairs, and then outside of the
outside hotel [sic].” (Rec. Doc. 16-3, pp. 8–9). Plaintiff argues otherwise, stating that the elevated
platform serves no utility. (Rec. Doc. 26, p. 7). Instead, Plaintiff argues that the elevated landing
is still a hazardous condition because, in the event of a fire, “persons exiting the fire exit door
would not be aware that at some point before they would traverse the sidewalk, that they would
encounter a 6 inch drop off. . . .” Id. The Court agrees with Defendants. Although it may not be
a strong utility, the elevated landing does possess a utility. For purposes of the third factor, the
cost of preventing the harm appears to be minimal. In his affidavit, Plaintiff’s expert Mitchell
Wood stated that the horizontal edges of the landing should have been marked by a bright yellow
color paint to serve as a strong visual marker for pedestrians, guests of the hotel, and smokers
using the landing. (Rec. Doc. 26-5, p. 4). With regard to the fourth factor, while smoking might
be inherently unhealthy by nature, the act of walking towards an ashtray to put out a cigarette does
not carry the same risk.
As it does in many cases, the dispute in this case revolves around the second factor, namely,
the substantial likelihood and magnitude of harm from the elevated landing, with consideration to
whether the elevated landing was apparent or obvious. See Dauzat, 995 So.2d at 1187. For a
defect to be considered open and obvious, “the hazard should be one that is open and obvious to
everyone who may potentially encounter it.” Lester, at *4 (citing Bufkin v. Felipe’s La., LLC, 140288 (La. 10/15/14); 2014 WL 5394087, at *4 (citations omitted)).
“Where there are competing expert opinions, the Court finds that there is a genuine issue
of material fact precluding summary judgment.” Ledet v. United States, No. 16-383, 2018 WL
2010024, at *3 (E.D. La. Apr. 30, 2018). As discussed above, Plaintiff’s expert, Mitchell Wood,
applies the NFPA Life Safety Code to conclude that the presence of a step must be readily apparent.

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Wood further states that the step in this case was not readily apparent, and therefore, in Woods’
judgment, the brick platform was clearly not obvious to a pedestrian unfamiliar with the premises.
(Rec. Doc. 26-5, p. 4). On the other hand, Defendants’ expert, Kevin Vanderbrook concludes that
the edge of the platform is readily apparent due to the contrasting pattern of the bricks. (Rec. Doc.
16-18, p. 7). Accordingly, the two experts have given competing testimony that raises factual
issues as to whether the smoking landing was defective sufficient to impede Defendants’ motion
for summary judgment. For these reasons, the Court finds that Defendants’ Motion for Summary
Judgment is denied.
Accordingly;
IT IS ORDERED that Defendants’ Motion for Summary Judgment (Rec. Doc. 16) is
DENIED.
June 18, 2018
__________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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