MARILYN LINCOLN AND DONALD LINCOLN, JR.
ACADIAN PLUMBING & DRAIN, LLC, ET AL
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 741-586, DIVISION
"D" HONORABLE SCOTT U.SCHLEGEL, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, MARILYN LINCOLN AND DONALD
LINCOLN, JR. Leo J. Palazzo Jason J. Markey
COUNSEL FOR DEFENDANT/APPELLEE, ACADIAN PLUMBING & DRAIN,
LLC, ET AL James J. Kokemor
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Marc E. Johnson
E. JOHNSON JUDGE.
appeal the granting of summary judgment in favor of
Defendants, dismissing their lawsuit with prejudice. For the
following reasons, we reverse.
& PROCEDURAL HISTORY
2013, homeowners, Donald and Marilyn Lincoln, hired
Defendant, Acadian Plumbing & Drain, LLC
("Acadian"), to perform plumbing work under the
slab of their home at 1701 Disney Drive in Metairie.
Specifically, Acadian was hired to tunnel beneath the house
and replace the drain lines. Midday on September 3, 2013,
approximately one to two weeks after Acadian began work, Mrs.
Lincoln walked outside her home and fell into the hole that
had been dug by Acadian to access the pipes under the house.
Mr. Lincoln and his son, Donald Lincoln, Jr.
("Donald"), were inside the home when they heard
screaming and rushed outside to find Mrs. Lincoln in the
hole. They lifted her out of the hole, and she was taken by
ambulance to the hospital with an injury to her left hip or
leg, which required surgery.
August 2014, Mrs. Lincoln and her son, Donald, filed suit for
damages against Acadian and its insurer, Liberty Mutual
Insurance Company, alleging Acadian was negligent in failing
to sufficiently secure or barricade the hole and in failing
to warn of the danger. The petition alleged that Mrs. Lincoln
fell into a hole that "bordered the walkway leading to
the front porch area" and that Acadian "placed a
temporary border and/or barricade consisting of tape that did
not border the hole in its entirety, specifically the area
that bordered the walkway leading to the front porch
area." The petition further alleged that Acadian covered
the subject hole with "temporary plywood" that was
"thin, worn, and/or rotten and did not cover its hole in
its entirety" and that, as Mrs. Lincoln walked to the
front porch of her residence, "suddenly and without
warning, the plywood shifted, gave way, and broke into
several pieces, thereby causing Mrs. Lincoln to fall into the
on March 10, 2016, Mrs. Lincoln passed away, and Donald filed
a motion to substitute parties-plaintiff seeking to
substitute the Estate of Marilyn Lincoln, Mr. Lincoln and
Becki Lincoln Zschiedrich (Mr. and Mrs. Lincoln's
daughter) in place of decedent. Additionally, Donald filed an
amended and supplemental petition alleging that Mrs.
Lincoln's death was the result of a stroke, caused by a
blood clot that formed as a result of her leg injury
sustained from her fall into the hole and the related
subsequent surgery. The amended petition further asserted
wrongful death claims on behalf of Mrs. Lincoln's
surviving spouse and adult children.
2, 2017, Acadian and its insurer filed a motion for summary
judgment asserting that Plaintiffs could not prove Acadian
breached any duty because the alleged defect was open and
obvious to all and, thus, Acadian owed no duty. In support of
the motion, Defendants attached the depositions of Mr.
Lincoln and Donald in which they both testified that they
all, including Mrs. Lincoln, knew the hole was there, that the
hole had a piece of plywood over it, and the hole was
surrounded, to some extent, by caution tape. In his
deposition, Donald testified that Acadian started digging the
hole/tunnel at issue about one to two weeks prior to the
accident. He stated that Acadian put a "rotten
board" over the hole that touched, but did not overlap,
the concrete. Donald stated that, after he helped his mother
out of the hole, he observed a flimsy and rotten piece of
plywood that had fallen into the hole after Mrs.
Lincoln's fall. Donald testified that he believes Mrs.
Lincoln stepped on the edge of the board, which shifted,
causing her and the board to fall into the hole. Donald
stated that he kept the piece of plywood and provided it to
his attorney in connection with this litigation.
further support of their motion, Defendants also attached a
photograph of the hole showing a piece of plywood partially
covering the hole, caution tape around the area, and a safety
cone. The record does not establish who took the photograph
or when it was taken.
filed an opposition to the motion for summary judgment,
arguing that Acadian placed an unsecured thin, weathered, and
rotten piece of plywood over the hole, concealing the danger
presented. Plaintiffs further asserted that Acadian's
barricade, consisting of cones and caution tape, did not
border the hole in its entirety and allowed access to the
"rotten" plywood, which overlapped the sidewalk,
thereby creating a "booby trap." Plaintiffs
maintained that Acadian's failure to use proper materials
and barricades created an unreasonable risk of harm that was
not open and obvious. In support of its opposition,
Plaintiffs attached portions of the depositions of Russell
Tapie, the owner of Acadian, and Eric Syrdal, who is
presumably an employee of Acadian; an affidavit from Ladd
Ehlinger, a licensed architect, in which he states Acadian
failed to provide a safe walking surface over the excavation
as required by the International Residential Code in effect
in Jefferson Parish; and photographs of the area at issue
relied upon by Mr. Ehlinger.
hearing on the motion for summary judgment, which consisted
of argument of counsel and the introduction of the exhibits
attached to the memoranda in support of and opposition to the
motion, the trial court granted summary judgment in favor of
Defendants and dismissed Plaintiffs' petition with
prejudice. In its ruling, the trial court stated that the
alleged defect was open and obvious to all and that Acadian