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White v. BRE Nola Property Owner, LLC

United States District Court, E.D. Louisiana

June 18, 2018

PATRICIA S. WHITE and ERNEST L. WHITE
v.
BRE NOLA PROPERTY OWNER, LLC, et al

         SECTION A (3)

          ORDER AND REASONS

          JAY C. ZAINEY, Judge

         Before 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.

         I. Background

         Plaintiff 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.[1] 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).

         A main 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.” Id.

         On the 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.

         II. Legal Standard

         Summary 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).

         Once 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)).

         III. Law and Analysis

         Plaintiff 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. ...


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