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Boutall v. Christakis, P.M., Co. LLC

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2017



          COUNSEL FOR PLAINTIFF/APPELLANT, RICHARD J. BOUTALL, Eugene J. Hoffman, IV, Richard A. Tonry, Raymond Brinson, Brian L. Glorioso, Douglas E. Alongia

          COUNSEL FOR DEFENDANT/APPELLEE, CHRISTAKIS, P.M., CO. LLC D/B/A MINERVA CAFE, Raymond A. Pelleteri, Jr., Claudette L. Bienvenu

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson


         This appeal arises in a personal injury case from the trial court's judgment granting defendant's, the owner of the premises, Motion for Summary Judgment and dismissing plaintiff's claims with prejudice. Plaintiff argues summary judgment was improper as a genuine issue of material fact exists regarding whether his injuries were caused by vice, ruin or defect of a building. For the following reasons, we affirm.

         Factual and Procedural History

         On June 13, 2014, Richard J. Boutall filed a petition for damages against Christakis, P.M., Co. LLC D/B/A Minerva Café, alleging that, after finishing lunch with his mother at Minerva Café on June 29, 2013, while using his right shoulder to open the door, his left foot suddenly gave out causing him to fall to the floor. In his petition, Mr. Boutall alleged that his left foot slid or stumbled across a concrete ramp or rise in elevation of approximately two to three inches which was present on the threshold, causing his fall. Mr. Boutall alleged that his fall caused him to suffer serious and significant injuries. According to Mr. Boutall, the incident caused him to break his femur and incur approximately $30, 000 in medical bills during a three-week hospital stay at East Jefferson General Hospital, during which he endured multiple operations, including a hip replacement and a procedure to insert a surgical rod in his leg. Mr. Boutall further alleged that, after the hip replacement, his mobility was hindered, allegedly causing him to sustain another fall during which he broke his left toe and right fibula. Mr. Boutall claimed Christakis, P.M. is liable for his injuries under a theory of premises liability pursuant to La. C.C. art. 2322 which pertains to negligent maintenance of a building.

         On August 18, 2016, defendant filed a Motion for Summary Judgment, alleging that there are no genuine issues of material fact as 5050 West Esplanade, the building in which Minerva Café is located, is free from structural defects and does not present an unreasonable risk of harm to its patrons and, further that, even if the ramp presented a defect in the premises, there is no evidence that defendant had actual or constructive knowledge of any such defect. To support its motion, defendant attached the affidavit of Fred V. Vanderbrook, a mechanical engineer, who rendered his expert opinion regarding the safety conditions at the entrance to Minerva Café on the date of Mr. Boutall's accident, specifically whether there existed unreasonably dangerous conditions which caused or contributed to Mr. Boutall's accident. Mr. Vanderbrook first opined that the 2.5 inch step down between the restaurant entrance and the exterior sidewalk was within the safety requirements in force at the time the strip mall was constructed, attesting that the safety requirements in force at that time would have permitted a step down of up to eight inches. Mr. Vanderbrook further opined that the ramp located at the restaurant entrance was likely constructed in an attempt to make the restaurant entrance more handicapped accessible and to ease the transition between the step up at the restaurant door and the sidewalk, finding that the red paint on the ramp and entry area drew attention to the offset and made the ramp location conspicuous. Finally, Mr. Vanderbrook opined that the ramp did not provide any unreasonably hazardous conditions to persons entering the restaurant. In his opinion, the ramp was well-maintained and painted with a contrasting color which drew attention to its presence, and it presented no unreasonable risk of harm to others.

         Defendant also attached to its motion the affidavit of Petros Christakis. In his affidavit, Mr. Christakis stated that he is a member of M. Christakis Co., LLC, the owner of the property at 5050 W. Esplanade Avenue in which Minerva Café is located, and that the small ramp leading from the sidewalk to the restaurant doorway was in place when Christakis Co. purchased the property in 1998. Mr. Christakis further stated that he had never received any complaint or notice of any problem with the entrance way to Minerva's Café before the day plaintiff fell. Moreover, defendant stated that he had never before that date received any complaint or notice of a fall or accident at that entranceway.

         In his original September 22, 2016 Opposition to Defendant's Summary Judgment Motion, plaintiff attached the affidavit of William J. Moran, a registered professional engineer, which included a series of eleven photographs of the restaurant's entrance. Mr. Moran affirmed that while he had not inspected the restaurant entrance itself, he had studied the eleven photographs. Mr. Moran opined that the photographs "show the portal to the restaurant are colored entirely in red, which demonstrate a safety hazard for patrons entering and leaving." In his Supplemental Affidavit to Opposition to Summary Judgment filed on October 4, 2016, plaintiff attached Mr. Moran's second affidavit in which Mr. Moran stated that he had inspected the restaurant's entrance. In his second affidavit, Mr. Moran focused primarily upon the Americans with Disabilities Act ("ADA"), opining that the ramp from the entrance to the sidewalk was not original to the building, thus requiring any alterations to the entrance and sidewalk to comply with the ADA Standards for Accessible Design. Mr. Moran found the ramp to have a 16% slope-exceeding the maximum 8.33% slope allowed by the ADA Standards for Accessible Design. Further, he found there was no space limitation to justify the increased slope; rather, he found the slope "created an unreasonable hazard and/or risk of harm which caused or contributed to the accident/injury." Mr. Moran also reiterated his opinion that the red paint applied to the ramp did not contrast with the adjoining surfaces, because those surfaces were also painted red, obscuring the visibility of the ramp and rendering it an unreasonably hazardous condition.

         In his October 5, 2016 Objection and Reply Memorandum, defendant argued that the ADA has no bearing on this matter. Defendant first argued that plaintiff did not allege an ADA violation in his petition, and further, that the ADA is inapplicable to establish proof of a defect of a building. Defendant argued that plaintiff's claim was one regarding structural defects in the premises, and the ADA applies to claims of discrimination due to a disability, not to claims arising from structural defects. On October 14, 2016, defendant filed a motion in limine to exclude plaintiff's expert testimony as irrelevant under La. C.E. art. 702. Thereafter, on October 20, 2016, plaintiff filed a motion to strike defendant's motion in limine as untimely in the face of a November 2, 2016 trial date.

         On November 2, 2016, the trial court heard defendant's summary judgment motion. Following oral arguments, during which the defense in support of its motion concentrated on its assertion that plaintiff had presented no evidence that defendant had actual or constructive knowledge of the alleged ramp defect, an essential element to a claim under La. C.C. art. 2322, and plaintiff responded that the uniform red painted color of both the ramp and Minerva Café's entrance, which violated ADA Standards, created an unreasonably dangerous condition, causing plaintiff's injury, the court granted defendant's motion for summary judgment. On November 14, 2016, the trial court issued its judgment granting defendant's motion for summary judgment and dismissing plaintiff's case. On that same date, the court declared defendant's motion in limine moot.

         Plaintiff filed a motion for new trial on November 22, 2016, which the trial court ...

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