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Minix v. City of Rayne

Court of Appeals of Louisiana, Third Circuit

April 4, 2018

ALLEN B. MINIX, ET AL.
v.
CITY OF RAYNE, ET AL.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 2014-11006 HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

          Jerry J. Falgoust Falgoust, Caviness & Bienvenu, LLP COUNSEL FOR DEFENDANT/APPELLEE: City of Rayne

          Chuck D. Granger, Christopher D. Granger, Granger Law Firm COUNSEL FOR PLAINTIFFS/APPELLANTS: Allen B. Minix, Kendra Minix, Cora Minix

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.

          ELIZABETH A. PICKETT, JUDGE

         The plaintiffs, Allen B. Minix and Kendra Minix, filed suit on behalf of their minor child Cora Minix after she fell on a sidewalk in front of her high school and sustained multiple injuries. The plaintiffs alleged that the concrete on the sidewalk was cracked and that it shifted underneath the child as she walked, causing her to lose her balance. The trial court found in favor of the defendant, City of Rayne, concluding that the plaintiffs failed to prove that the sidewalk was unreasonably dangerous. The plaintiffs appeal.

         FACTS

         According to the record, on the morning of November 19, 2013, Cora Minix, who was fifteen years old at the time, was walking to Rayne High School when she fell on a sidewalk that ran along the street in front of the school. She stated that while she had occasionally walked to school before this incident, this was the first time she walked on this sidewalk. At trial, she explained, "[A]s I stepped on the concrete, I felt like the concrete shifted and I lost my balance and I fell." She added that her "ankle rolled" and that she landed on her right knee, then on her hands. She then noticed "cracks in the sidewalk" where she fell but maintained that she had not seen them prior to the fall. She also related that there were "pieces of grass in various places in the cracks" and that there was a water meter and a light pole to her left where she fell. She alleged that it was a dry, sunny day and that she had not been carrying anything in her hands, had not been distracted, and that she had been looking "straight ahead" as she walked. She also indicated that she had been aware of height deviations on the other sidewalk she had previously used when she walked to school, which also ran adjacent to the school but on the opposite side of the street from the instant sidewalk.

         Cora alleged that following the incident, she immediately felt pain in her right hip, right leg, right knee, and right foot, and that she was unable to walk due to the pain in her knee. She testified that she was taken into the school in a wheelchair, but that she only stayed "a couple of minutes" due to "excruciating pain." She explained that her father then took her to the hospital. She was subsequently diagnosed with a right knee contusion and a strained right ankle, and prescribed crutches and medication. Cora further alleged that she continued to feel pain after her fall, and that for two months, she walked with crutches, was homeschooled, and was unable to perform household chores. She further alleged that she still has occasional pain when standing, walking, climbing stairs, and lifting objects. Her pediatrician testified that he believed the fall was the "only explanation" for Cora's symptoms, as she had never complained of pain in these areas prior to her fall.

         Cora's parents, Allen B. Minix and Kendra Minix, filed suit on her behalf against the Acadia Parish School Board, which was dismissed by summary judgment, and the City of Rayne. The plaintiffs alleged damages including medical expenses, mental pain and suffering, physical pain and suffering, and loss of enjoyment of life. The City denied liability, asserting that the condition of the sidewalk was open and obvious and therefore did not present an unreasonable risk of harm.

         After a bench trial, the trial court dismissed the plaintiffs' claims. Performing a risk-utility analysis, it found that the defect in the sidewalk was open and obvious, that it did not present an unreasonable risk of harm, and that the City of Rayne lacked actual or constructive notice of the defective sidewalk at the time of the fall. The plaintiffs appeal.

         ASSIGNMENTS OF ERROR

         On appeal, the plaintiffs assert three assignments of error:

1. The trial court erred in finding that the City of Rayne did not have actual or constructive knowledge of the defective sidewalk at the time of the subject accident.
2. The trial court erred in finding that the defective sidewalk was "open and obvious" at the time of the subject accident.
3. The trial court erred in dismissing all of Plaintiff-Appellant's claims and awarding her no damages for the injuries she sustained as a result of her fall on the defective sidewalk.

         DISCUSSION

         Applicable Law and Standard of Review

         The legislature has limited the liability of public bodies for damages caused by things in their custody or control by enacting La.R.S. 9:2800, which states in relevant part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
. . . .
C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.
. . . .
G. (1) "Public entity" means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions. Public entity also includes housing authorities, as defined in R.S. 40:384(15), and their commissioners and other officers and employees and sewerage and water boards and their employees, servants, agents, or subcontractors.
(2) "Public site or area" means any publicly owned or common thing, or any privately owned property over which the public's access is not prohibited, limited, or restricted in some manner including those areas of unrestricted access such as streets, sidewalks, parks, or public squares.

         In Chambers v. Village of Moreauville, 11-898, p. 5 (La. 1/24/12), 85 So.3d 593, 597, the supreme court explained the ...


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