FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2009-02156,
DIVISION "M" Honorable Paulette R. Irons, Judge.
William R. Mustian, III STANGA & MUSTIAN, APLC COUNSEL
Landry, Attorney General Taylor M. Simon, Assistant Attorney
General LOUISIANA DEPARTMENT OF JUSTICE LITIGATION DIVISION
COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Edwin A. Lombard, Judge Roland L. Belsome,
Judge Sandra Cabrina Jenkins
CABRINA JENKINS, JUDGE.
appeal arises out of a trip and fall accident.
Plaintiff/Appellant Cassandra Smith alleges that she was
entering the Crescent City Connection building in New
Orleans, when she tripped over the rug at the entrance and
fell. Ms. Smith appeals the trial court's January 12,
2018 judgment granting a Motion for Summary Judgment filed by
the State of Louisiana through the Department of
Transportation and Development ("DOTD"), which
dismissed Ms. Smith's suit, with prejudice. For the
reasons that follow, we reverse the trial court's
judgment and remand for further proceedings.
AND PROCEDURAL BACKGROUND
matter has a lengthy procedural history. On February 27,
2009, Ms. Smith filed a Petition for Damages against the
DOTD, alleging that she tripped and fell on a rug as she was
entering the Crescent City Connection building on March 14,
2008. According to Ms. Smith, she sustained serious injuries
from the fall, including shoulder and neck injuries. The
Petition sought damages for pain and suffering, disability
and mental anguish, lost earnings and earning capacity, and
medical and related expenses.
March 17, 2015, the DOTD filed a Motion for Summary, seeking
dismissal of Ms. Smith's suit on the grounds that the
DOTD had no actual or constructive knowledge of the allegedly
unreasonably dangerous rug, which Ms. Smith asserted was too
close to the door, was unusually thick, and had a turned up
an evidentiary hearing, the trial court rendered a judgment
on June 16, 2015 granting the DOTD's Motion for Summary
Judgment and dismissing this action, with prejudice. On June
24, 2015, Ms. Smith filed a Motion for Appeal, which the
trial court granted on June 25, 2015.
January 14, 2016, this Court issued a sua sponte
order directing the parties to show cause in writing why the
appeal should not be dismissed because the June 16, 2015
judgment did not contain decretal language, and thus was not
a final appealable judgment. On January 19, 2016, the DOTD
filed an unopposed Ex Parte Motion to Amend Judgment
in the trial court. The Amended Judgment, signed by the trial
court on January 20, 2016, added the proper decretal
language. On that date, the trial court ordered that the
record be supplemented with the Amended Judgment. On January
21, 2016, Ms. Smith and the DOTD each filed responses to this
Court's order to show cause, and attached the Amended
February 17, 2016, this Court issued an opinion dismissing
Ms. Smith's appeal without prejudice on the grounds that
the record could not be supplemented with the Amended
Judgment because it was an entirely new judgment that must be
appealed. This Court remanded the matter, stating that
"[o]nce a final appealable judgment is rendered, a new
appeal may be filed with this Court."
January 12, 2018, the trial court rendered a second judgment
granting DOTD's Motion for Summary Judgment, and
dismissing the lawsuit, with prejudice. Ms. Smith timely
filed a Motion for Appeal on February 8, 2018.
courts review summary judgments under the de novo
standard of review, using the same standard applied by the
trial court in deciding the motion for summary judgment; as a
result, we are not required to analyze the facts and evidence
with deference to the judgment of the trial court or its
reasons for judgment." Orleans Parish Sch. Bd. v.
Lexington Ins. Co., 12-0095, p. 5 (La.App. 4 Cir.
8/28/13), 123 So.3d 787, 790. "We therefore look at the
record before us and make an independent determination
regarding whether there are genuine issues of material fact
that would preclude granting summary judgment."
reviewing summary judgments, we remain mindful of which party
bears the burden of proof." Orleans Parish Sch.
Bd., 12-0095 at p. 6, 123 So.3d at 790. "Although
the burden of proof on a motion for summary judgment remains
with the moving party, the mover's burden changes
depending upon whether he or she will bear the burden of
proof at trial on the matter that is the subject of the
motion for summary judgment." Id. at p. 6, 123
So.3d at 790-91. "[I]f the movant will not bear the
burden of proof at trial on the matter that is before the
court on the motion for summary judgment, the movant's
burden on the motion does not require him to negate all
essential elements of the adverse party's claim, action,
or defense, but rather to point out to the court that there
is an absence of factual support for one or more elements
essential to the adverse party's claim, action, or
defense." La. C.C.P. art. 966(C)(2) (prior to amendment
by 2015 Acts, No. 422, effective January 1,
2016). Article 966(C)(2) further provides that
"if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine
issue of material fact." La. Code Civ. P. art.
966(C)(2). For purposes of a motion for summary judgment, a
"genuine issue" is a "triable issue."
Bd. of Comm'rs of Port of New Orleans v. City of New
Orleans, 13-0881, p. 6 (La.App. 4 Cir. 2/26/14), 135
So.3d 821, 825 (citation omitted). "If reasonable
persons could disagree after considering the evidence, a
genuine issue exists." Id. If, however,
reasonable persons could reach only one conclusion on the
state of the ...