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Eskine v. The City of Gretna

Court of Appeals of Louisiana, Fifth Circuit

March 14, 2018

RAY ESKINE AND SONDRA ESKINE
v.
THE CITY OF GRETNA

         ON 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 PRESIDING

          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

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg

          LILJEBERG, J.

         Plaintiffs appeal a summary judgment rendered in favor of defendants, dismissing plaintiffs' lawsuit against them. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         This 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.

         Mr. 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.

         Defendants 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.

         In his 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.

         Mr. 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.

         In 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."

         In the 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 ...


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