APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 743-760, DIVISION
"A" HONORABLE RAYMOND S. STEIB, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, RAY ESKINE AND SONDRA ESKINE
Brian L. Reboul John B. Krentel
COUNSEL FOR DEFENDANT/APPELLEE, THE CITY OF GRETNA Jeffery P.
Brothers Mark C. Morgan David L. Colvin
composed of Judges Fredericka Homberg Wicker, Stephen J.
Windhorst, and Hans J. Liljeberg
appeal a summary judgment rendered in favor of defendants,
dismissing plaintiffs' lawsuit against them. For the
following reasons, we affirm.
AND PROCEDURAL HISTORY
case arises from a slip and fall accident that occurred in
front of plaintiffs' home, located at 1902 Hancock Street
in Gretna, at approximately 4:30 p.m. on July 10, 2014. At
the time of the accident, plaintiff, Ray Eskine, was 58 years
old, permanently disabled, and required a walker to walk
around. According to Mr. Eskine, he wanted to see how high
the grass was on his lot across the street, so he began to
traverse an elevated walkway over a drainage ditch in front
of his house, when the front left wheel of his walker slipped
or rolled off the left side of the walkway, causing Mr.
Eskine to fall into the ditch and suffer personal injuries.
Eskine and his wife, Sondra Eskine, filed this lawsuit
against the City of Gretna ("Gretna") and its
liability insurer, Atlantic Specialty Insurance Company
("Atlantic"), alleging that the walkway over the
drainage ditch, which extends from the sidewalk to the
street, was defective and presented an unreasonably dangerous
condition. They asserted that the walkway was in the care,
custody, and control of Gretna, and that Gretna had actual
and constructive knowledge of the defective condition of the
walkway. Thus, plaintiffs sought damages from these
defendants for the injuries sustained by Mr. Eskine.
answered the lawsuit and subsequently filed a motion for
summary judgment, seeking dismissal of plaintiffs' claims
against them. In their motion for summary judgment, Gretna
and Atlantic asserted that they are entitled to summary
judgment, because plaintiffs cannot show that the alleged
condition of the walkway created an unreasonable risk of
harm. Further, they asserted that the condition of the
walkway was open and obvious, and that Mr. Eskine did not
exercise reasonable care. In support of their motion for
summary judgment, defendants submitted several exhibits,
including photographs, excerpts from the deposition testimony
of both plaintiffs and Mr. Eskine's doctor, as well as an
affidavit and excerpts from the deposition testimony of
Daniel Lasyone, the Director of Public Works for Gretna.
deposition, Mr. Eskine testified that he grew up at 1902
Hancock Street and has lived there for "just about"
his whole life. He stated that he became disabled and began
using his walker approximately 20 years ago. Mr. Eskine
stated that the walkway where he fell was constructed
approximately 30 years ago, and asphalt was put on the
walkway approximately 20-25 years ago when the street was
repaved. According to Mr. Eskine, the walkway was defective
because it was too narrow, had too much slope and angle, was
uneven and concave, and the asphalt was brittle and breaking
off. Mr. Eskine testified that the defective condition of the
walkway existed for 20-25 years, and the asphalt started
crackling and crumbling at least 15 years prior to his fall.
He testified that Gretna employees have been around the
property and should have noticed this defective condition and
repaired it before the accident. Mr. Eskine admitted that he
was aware of the "deteriorated condition" of the
walkway before the fall, noting "[y]ou can look at it
and see." Mr. Eskine stated that he would typically
avoid using the walkway due to its defective condition, and
he would use the driveway instead to approach the street. In
fact, he stated that he only walked across this walkway two
or three times in 20 years.
Eskine stated that on the day of the accident, it had just
stopped raining when he decided to check on the grass at his
lot across the street. At the time of the accident, Mrs.
Eskine's truck was parked at the end of the driveway and
was blocking it, so he decided to use the walkway and not
approach the street via the driveway, as he normally would.
He admitted that he could have used an alternate route, but
"it's a long walk to go all the way around
there" and he decided to "go ahead and get
out." He stated that at the time of his fall, there was
nothing preventing him from seeing the alleged defective
condition of the walkway or the path he was using.
Sondra Eskine's deposition, she stated that she has lived
at 1902 Hancock Street for at least 30 years and that the
walkway over the drainage ditch had been in an obvious
deteriorated condition for several years prior to Mr.
Eskine's fall. She stated that Gretna employees, such as
those who came out to "read the meter" each month,
should have noticed that the walkway was defective. Mrs.
Eskine testified that Mr. Eskine has a "frequency to
fall" and that his legs "give out on him, " so
she tells him to let someone know when he is going down the
steps or off the porch. On the day of the accident, Mr.
Eskine did not tell anyone he was leaving the porch. Prior to
the accident, Mrs. Eskine used the walkway twice a week to
put out their garbage cans, but Mr. Eskine would typically
use the driveway to go to the street because it is wider and
safer. Mrs. Eskine testified that she had parked her blue
truck on the street, blocking the driveway, on the day of the
accident, because she was lending the truck to someone who
"won't back out the driveway."
affidavit of Daniel Lasyone, the Director of Public Works for
Gretna, he stated that Gretna did not receive or have any
knowledge of any complaints regarding the walkway condition