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Morel v. Cheema Properties, LLC

Court of Appeals of Louisiana, Fifth Circuit

April 12, 2017

NANCY MOREL
v.
CHEEMA PROPERTIES, LLC, CHEEMA THREE, LLC AND ABC INSURANCE COMPANY

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 748-803, DIVISION "D" HONORABLE SCOTT U.SCHLEGEL, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, NANCY MOREL Salvador M. Brocato, III

          COUNSEL FOR DEFENDANT/APPELLEE, CHEEMA PROPERTIES, LLC AND CHEEMA THREE, LLC Andre' C. Gaudin Ralph T. Rabalais

          Panel composed of Jude G. Gravois, Robert M. Murphy, and Hans J. Liljeberg

         RMM

         JGG

         HJL

          ROBERT M. MURPHY JUDGE

         Plaintiff, Nancy Morel, has appealed the trial court judgment granting summary judgment in favor of defendants. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On October 25, 2014, plaintiff was injured when she tripped and fell at a Shell gas station in Metairie. Plaintiff filed suit against the gas station owners, Cheema Properties, LLC and Cheema Three, LLC.

         In her deposition, plaintiff testified that she was born on April 29, 1930 and has been walking with a cane since having her knee replaced in 2001. She frequently went to this particular gas station for gas and always went inside of the store to pay for her gas before pumping the gas. On the morning that she fell, she noticed two hoses next to the curb where she had to step up to go into the store. She described the hoses as gray in color and two and a half to three inches in diameter. She elaborated that she could not recall if there were two hoses when she went into the store, but stated that there were two hoses when she exited the store. Plaintiff testified that when she came out of the store, the two hoses were "separated, " expounding "[t]hat's where the problem was." Plaintiff further testified "I looked to the handicap place to see if I can get out that way and I was blocked that way…I said, well, I have things to do, so I have to go forward with my cane." After trying unsuccessfully to move the hose with her cane, she tried to use her "cane to step over the hoses" and her right foot "caught the hose" causing her to fall. When questioned as to whether, after seeing the hoses upon exiting the store, she went back into the store to tell the cashier that her path to her car was blocked, plaintiff responded that she "didn't think it was necessary."

         Relying on plaintiff's deposition testimony, defendants moved for summary judgment arguing that the hoses were open, obvious, and plainly visible to all who encountered them, and that they did not pose an unreasonable risk of harm to persons exercising ordinary care for their own safety. Plaintiff opposed the motion for summary judgment arguing: (1) that there are disputed facts surrounding the location of the hoses that moved and separated after plaintiff went into the store which indicate that the hoses did present an unreasonable risk of harm, (2) that defendants failed to preserve the video surveillance after being requested to do so by plaintiff's attorney within 30 days of the accident and there was a genuine issue of fact regarding defendant's spoliation of the video surveillance, and (3) there is disputed evidence as to the identity of the person who placed the hoses in the parking lot and whether he was adequately supervised.

         At the hearing on the motion for summary judgment, the trial court found that the only facts before the court that were material were those regarding the open and obvious nature of the alleged hazard. Noting plaintiff's deposition testimony that she tried to move the hose and then made a decision to go forward, the court found that the hoses were open and obvious and ...


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