FRED O. RUSSELL
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
C. Forrester Baton Rouge, LA Counsel for Plaintiff/Appellant
Fred O. Russell
C. Edwards Baton Rouge, LA Counsel for Defendant/Appellee
City of Baton Rouge/Parish of East Baton Rouge
BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
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.
AND PROCEDURAL HISTORY
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.
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.
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).
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).
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).
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 ...