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Bastian v. Rosenthal

Court of Appeals of Louisiana, Fourth Circuit

December 20, 2017

CAROL BASTIAN AND FRANK BASTIAN
v.
ANDREW ROSENTHAL AND OLIVIA ROSENTHAL AND ABC INSURANCE CORPORATION

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-00083, DIVISION "L-6" Honorable Kern A. Reese, Judge

          Laurence Cohen Attorney at Law COUNSEL FOR PLAINTIFF/APPELLANT

          Ann M. Halphen Kari A. Bergeron John M. Parker, Jr. TAYLOR, PORTER, BROOKS & PHILLIPS L.L.P. COUNSEL FOR DEFENDANT/APPELLEE

          Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Joy Cossich Lobrano

          Joy Cossich Lobrano Judge

         In this premises liability case, plaintiffs/appellants, Frank and Carol Bastian (collectively the "Bastians"), appeal the district court's November 10, 2016 judgment granting the motion for summary judgment filed by defendants/appellees, Andrew and Olivia Rosenthal and their homeowners' insurance carrier Access Home Insurance Company (collectively the "Rosenthals"), which dismissed all of the Bastians' claims against the Rosenthals. For the reasons that follow, we reverse the judgment and remand this matter to the district court for further proceedings.

         The Bastians and the Rosenthals are next door neighbors. Carol Bastian ("Mrs. Bastian") alleges that she sustained injuries when she fell on broken concrete where the Rosenthals' driveway meets the sidewalk. The alleged incident occurred when Mrs. Bastian, who is in her seventies, was walking her dog at 10:15 p.m. while accompanied by Francis Pollachek ("Pollachek"), a security guard employed by Metro Security, Inc. ("Metro"), the private security company for the parties' neighborhood association.

         On January 3, 2014, the Bastians filed a petition for damages naming the Rosenthals as defendants. On March 31, 2014, the Rosenthals filed a third party demand against the City of New Orleans (the "City"), alleging that the City owned the sidewalk and failed to repair that sidewalk. On April 8, 2014, the Bastians filed a supplemental and amending petition naming Metro as defendant, alleging that Pollachek failed to safely escort Mrs. Bastian around the broken concrete on the night of the accident. The Bastians' claims against Metro were dismissed via summary judgment on March 22, 2016 and are not a part of this appeal.

         On August 8, 2016, the Rosenthals filed a motion for summary judgment, arguing they had no duty to warn the Bastians of any risk posed by the sidewalk or driveway or to prevent Mrs. Bastian's injuries because the broken concrete was an open and obvious condition. On October 6, 2016, the Bastians filed an opposition to summary judgment, arguing that the broken concrete was not obvious because of the "darkened conditions" at the time of the accident.

         The facts most pertinent to this appeal were set forth in Mrs. Bastian's deposition and the affidavit of Andrew Rosenthal ("Mr. Rosenthal"), both of which were introduced in support of the Rosenthals' motion for summary judgment.

         Mrs. Bastian testified in her deposition to the following account of the accident. Mrs. Bastian left her house with her dog at 10:15 p.m. and saw Pollachek down the street at the wrong building. It was Pollachek's first day working for Metro. Mrs. Bastian was attempting to alert Pollachek that she was going back inside her house, so she walked toward him on the sidewalk past the Rosenthals' house. Mrs. Bastian and Pollachek then turned around to walk back toward the Bastians' house. Pollachek was a large man who took up most of the sidewalk. Mrs. Bastian walked alongside him on the driveway side of the sidewalk. There was a large vehicle in the Rosenthals' driveway, which cast a shadow on the broken concrete. Mrs. Bastian fell on the broken concrete. When asked why she fell, Mrs. Bastian testified that it was dark and she tripped on a "piece of cement."

          Mrs. Bastian had walked across the sidewalk approximately twenty to thirty times in the five years she lived next door to the Rosenthals, but she generally avoided the area because it was "difficult to cross" and because of prior altercations with Olivia Rosenthal. Mrs. Bastian did not ordinarily walk her dog at night, but did so on the night of accident because her husband was out of town. The Rosenthals' driveway is on the opposite side of the Rosenthals' house from the Bastians' house, and Mrs. Bastian was able to see the driveway from her yard or her porch. She had seen pedestrians walk into the street to avoid the broken concrete. Mrs. Bastian testified that the condition of the driveway had changed during the time she had lived next door to the Rosenthals. She stated that there was an area that collapsed and the "pieces in the driveway had been readjusted and changed out from time to time."

         Mr. Rosenthal attested in an affidavit that he had contacted the City three times before Mrs. Bastian's accident to request repairs to the sidewalk. He also attested that the sidewalk and driveway remained in nearly identical condition from the time he moved into the house in 2009 until the accident. No one complained to Mr. Rosenthal about the sidewalk or driveway, and, to his knowledge, there were no prior accidents involving the broken concrete.

         On November 10, 2016, the district court rendered judgment, granting summary judgment and dismissing all of the ...


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