United States District Court, E.D. Louisiana
PATRICIA S. WHITE and ERNEST L. WHITE
BRE NOLA PROPERTY OWNER, LLC, et al
ORDER AND REASONS
the Court is a Motion for Summary Judgment (Rec. Doc.
16) filed by Defendants, BRE NOLA Property Owner,
LLC and Zurich American Insurance Company. Plaintiff Patricia
S. White opposes the motion (Rec. Doc. 26) and Defendants
have replied. (Rec. Doc. 30). The motion, set for submission
on May 16, 2018, is before the Court on the briefs without
oral argument. This matter is set to be tried to a jury
beginning on July 9, 2018. Having considered the motion,
memoranda of counsel, the record, and the applicable law, the
Court finds that Defendants' Motion for Summary
Judgment (Rec. Doc. 16) is DENIED
for the reasons set forth below.
Patricia S. White traveled from her home in Mobile, Alabama
to New Orleans with her two sisters on June 14, 2016. The
women were planning on spending the night in New Orleans to
attend a local event. Upon arriving in New Orleans, the women
visited a local restaurant to eat lunch then proceeded to
check-in at the Hampton Inn and Suites on Carondelet Street
located in the city's Central Business District. Once
checked in at the hotel, Plaintiff proceeded to take a
smoke-break. Because guests were not allowed to smoke inside,
Plaintiff exited the hotel's main entrance/exit facing
Carondelet Street then turned to the right towards the
hotel's outdoor smoking area. Around 6:10 p.m., Plaintiff
began smoking her cigarette at the smoking area. According to
photographs in the record, the smoking area consists of a
small raised brick platform, or “landing, ” that
abuts the hotel near the entrance. The landing also has a
smoker's pole that smoker's use to dispose of
cigarettes. While smoking her cigarette, Plaintiff states
that there were several others doing the same, but she
recalls having a conversation with a middle-aged man.
Plaintiff further states that although she does not recall
whether the ground around the smoking area was wet or dry,
she does remember it raining on that particular day. (Rec.
Doc. 16-4, pp. 6-11). Upon finishing her cigarette, Plaintiff
proceeded to put the cigarette out in a smoker's pole
located on the landing. According to her deposition,
Plaintiff believes she stepped up onto the landing to smoke,
but upon stepping back after disposing of her cigarette, she
tripped and fell because of the height difference between the
landing and the sidewalk. Id. at 20. Plaintiff's
hip hit the ground first followed by her ankle. After her
fall, Plaintiff was taken to the University Medical Center by
ambulance. Plaintiff alleges her fall resulted in serious
bodily injury and seeks general damages, lost wages, loss of
earning capacity, medical expenses, expert witness fees, and
all other court costs. (Rec. Doc, 1-1).
point of contention in this lawsuit is the smoking landing.
According to the exhibits and deposition testimony presented
by both parties, the smoking area is located a few steps away
from the front entrance of the hotel. Defendants' expert,
Kevin Vanderbrook, describes the landing as follows:
The area of the incident is located on the exterior of the
Hampton Inn hotel. There is a raised brick platform which
serves as a smoking area for guests. Additionally, there is a
fire exit from the interior stairwell which provides access
to the street and opens to this platform. The platform
measures approximately 66 ½ inches wide and
approximately 63 ½ inches deep. The platform is
finished with a combination of herringbone and soldier course
brick pavers. There is an ashtray located on the platform for
disposing of cigarette butts.
(Rec. Doc. 16-18, p. 5). According to Vanderbrook's
conclusions, the “raised platform at the emergency
exit/smoking platform location is finished with brick pavers
in contrasting patterns which make the edge readily apparent
to persons paying a reasonable amount of care and
attention.” Id. at p. 7. Vanderbrook also
concludes that the “edge of the platform is readily
apparent due to a contrasting pattern in the bricks.”
other hand, Plaintiff's expert, Mitchell Wood, notes that
“[s]ince the brick was the same on the sidewalk as the
‘smoking' platform, the surfaces can appear to
blend. The brick platform edge would appear indistinguishable
unless notified or ‘forwarned.'” (Rec. Doc.
26-5, p. 3). Wood also states that the landing's dropoff
was difficult to discern due to the similar brick paver
surface of the landing and the abutting sidewalk. Wood
ultimately concludes that “in [his] judgment, this
brick platform is clearly not ‘apparent' to a
pedestrian unfamiliar with the premises.” (Rec. Doc.
26-5). With the relevant facts provided, the Court now
outlines the applicable legal standard.
judgment is appropriate only if “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, ” when
viewed in the light most favorable to the non-movant,
“show that there is no genuine issue as to any material
fact.” TIG Ins. Co. v. Sedgwick James, 276
F.3d 754, 759 (5th Cir. 2002) (citing Anderson v. Liberty
Lobby, Inc., 447 U.S. 242, 249-50 (1986)). A dispute
about a material fact is “genuine” if the
evidence is such that a reasonable jury could return a
verdict for the non-moving party. Id. (citing
Anderson, 477 U.S. at 255). The court must draw all
justifiable inferences in favor of the non-moving party.
Id. (citing Anderson, 477 U.S. at 255).
the moving party has initially shown “that there is an
absence of evidence to support the non-moving party's
cause, ” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986), the non-movant must come forward with
“specific facts” showing a genuine factual issue
for trial. Id. (citing Fed.R.Civ.P. 56(e);
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 587 (1986)). Conclusional allegations and denials,
speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for
trial. Id. (citing SEC v. Recile, 10 F.3d
1093, 1097 (1993)).
Law and Analysis
asserts that the smoker's landing at issue outside of the
Hampton Inn constituted a “dangerous and/or defective
condition” causing her to fall and sustain injuries.