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Dillenkofer v. Marrero Day Care Center, Inc.

Court of Appeals of Louisiana, Fifth Circuit

May 24, 2017

KRISTINA DILLENKOFER, INDIVIDUALLY, AND ON BEHALF OF HER MINOR CHILDREN, ANDREW BLEDSOE, AARON DILLENKOFFER, AND GIOVANNI RODRIGUEZ
v.
MARRERO DAY CARE CENTER, INC. AND ABC INSURANCE COMPANY

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 743-107, DIVISION "B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, KRISTINA DILLENKOFFER, ET AL James M. Garner Debra J. Fischman

          Dan A. Robin, Jr. COUNSEL FOR DEFENDANT/APPELLEE, MARRERO DAY CARE CENTER, INC., ET AL Candace LeBlanc

          Panel composed of Susan M. Chehardy, Robert A. Chaisson, and Robert M. Murphy

         RAC

         SMC

         RMM

          ROBERT A. CHAISSON JUDGE

         Kristina Dillenkoffer, individually and on behalf of her minor children, Andrew Bledsoe, Aaron Dillenkoffer, and Giovanni Rodriguez, appeals a judgment from the trial court that granted a motion for summary judgment filed by Marrero Day Care Center, Inc., dismissing her claims with prejudice. For the following reasons, we reverse the decision of the trial court.

         FACTS AND PROCEDURAL HISTORY

         This case arises from an accident on February 24, 2014, at the Marrero Day Care Center ("the Center") located in Marrero, Louisiana. On that day, Ms. Dillenkoffer went to the day care center to pick up her minor son, Andrew Bledsoe. As Ms. Dillenkoffer was exiting the front of the building, she fell down the entrance stairway to the building. At the time of the fall, Ms. Dillenkoffer was 32 weeks pregnant, carrying her 18-month-old son Aaron on her right hip and talking on her cellular phone. She suffered injuries including a fractured tibia and fibula. Her son, Aaron, suffered a broken clavicle and a bruised head. There were no witnesses to the incident, but help arrived almost immediately afterwards. Ms. Dillenkoffer and her children were taken to the hospital by ambulance.

         On October 6, 2014, Ms. Dillenkoffer filed a petition for damages against the Center wherein she alleged that it is responsible under all applicable Louisiana Code articles for the damage caused by its failure to warn of a dangerous condition, allowing a hazardous and dangerous condition to exist on its premises, and allowing for a defective stairway. Her alleged damages include lost earnings, physical pain, and medical expenses, as well as loss of consortium claims for the children. In its answer to the petition, the Center acknowledged that an accident occurred, but denied the existence of any unreasonably dangerous hazard or condition and affirmatively averred that the sole and proximate cause of the accident was Ms. Dillenkoffer's own negligence by tripping and falling of her own accord, failing to utilize the provided handrail, and walking and talking on a cellular phone while holding a baby.

         Following discovery, a motion for summary judgment was filed by the Center in which it argued that, based on the deposition testimony of Ms. Dillenkoffer and the report of her expert witness that examined the stairway, she could not meet her burden of proof. In particular, the Center argued that Ms. Dillenkoffer could not prove that: (1) the property was defective; (2) a defective condition caused the fall; or (3) the Center knew or should have known of an unreasonably dangerous defective condition. Therefore, the Center argued, it was entitled to summary judgment as a matter of law. In opposition to this motion, Ms. Dillenkoffer argued that there were genuine issues of material fact as to whether the front stairs presented numerous unreasonably dangerous conditions that substantially contributed to and in fact caused her to fall.

         After a hearing on the motion, the trial court entered a judgment granting the motion for summary judgment and dismissing Ms. Dillenkoffer's ...


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