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Russell v. City of Baton Rouge

Court of Appeals of Louisiana, First Circuit

January 17, 2019

FRED O. RUSSELL
v.
CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE

          Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Suit Number C643151 Honorable Janice Clark, Presiding

          David C. Forrester Baton Rouge, LA Counsel for Plaintiff/Appellant Fred O. Russell

          Arlene C. Edwards Baton Rouge, LA Counsel for Defendant/Appellee City of Baton Rouge/Parish of East Baton Rouge

          BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

          GUIDRY, J.

         Plaintiff, Fred Russell, appeals from a judgment of the trial court granting summary judgment in favor of defendant, City of Baton Rouge, Parish of East Baton Rouge (City/Parish), and dismissing his claims against the City/Parish with prejudice. For the reasons that follow, we reverse.

         FACTS AND PROCEDURAL HISTORY

         On December 9, 2014, Russell, who was seventy eight years old, was a pedestrian on a crowded walkway between St. Louis Street and the Nineteenth Judicial District Court (19th JDC) building. While traversing the area, Russell tripped on an elevated section of concrete, causing him to fall onto the pavement and sustain injuries. Russell subsequently filed a petition for damages, naming the City/Parish as defendant and asserting that the cause of his fall was a transitional section of the sidewalk that abruptly changed elevation and created an unreasonably dangerous condition.

         Thereafter, the City/Parish filed a motion for summary judgment, asserting that the condition of the sidewalk was open and obvious, and therefore, not unreasonably dangerous, and that Russell simply failed to watch where he was walking. As such, the City/Parish asserted that it did not owe a duty to protect Russell against an open and obvious condition. Following a hearing on the City/Parish's motion, the trial court signed a judgment granting the motion and dismissing Russell's suit with prejudice. Russell now appeals from the trial court's judgment.

         DISCUSSION

         A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. M/V Resources LLC v. Louisiana Hardwood Products LLC, 16-0758, p. 8 (La.App. 1st Cir. 7/26/17), 225 So.3d 1104, 1109, writ denied, 17-1748 (La. 12/5/17), 231 So.3d 624. A motion for summary judgment is properly granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubt must be resolved in the opponent's favor. Willis v. Medders. 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050 (per curiam).

         In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. M/V Resources LLC, 16-0758 at p. 9, 225 So.3d at 1109. A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. C.C.P. art. 966(F).

         On a motion for summary judgment, the burden of proof is on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover'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 the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

         In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to determine the truth of the matter but instead to determine whether there is a genuine issue of triable fact. Clark v. J-H-J Inc., 13-0432, pp. 3-4 (La.App. 1st Cir. 11/1/13), 136 So.3d 815, 817, writ denied, 13-2780 (La. 2/14/14), 132 So.3d 964. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the ...


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