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Primeaux v. Best Western Plus Houma Inn

Court of Appeals of Louisiana, First Circuit

February 28, 2019


          On Appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket No. 175657 Honorable John R. Walker, Judge Presiding

          Derriel C. McCorvey H.D. Register, III Lafayette, Louisiana Counsel for Plaintiff/Appellant Earl Primeaux

          Amanda H. Aucoin Todd Musgrave New Orleans, Louisiana Counsel for Defendants/Appellees Best Western Plus Houma Inn, LLC and Cajun Lodging, LLC


          McCLENDON, J.

         In this trip and fall case, the plaintiff, Earl Primeaux, appeals the trial court's judgment that granted the motion for summary judgment filed by defendants, Best Western Plus Houma Inn and Cajun Lodging, LLC. For the following reasons, we affirm.


         Mr. Primeaux, a hotel guest, tripped as he stepped onto the elevated entryway of the Best Western Plus Houma Inn located in Gray, Louisiana on October 19, 2014. Immediately before he fell, Mr. Primeaux drove his car under the covered area just outside of the Best Western's entrance in anticipation of checking out of the hotel. He exited his vehicle and walked toward the sliding doors, intent on entering the hotel lobby to return his room key. As Mr. Primeaux approached the entryway, his foot "caught the ledge" of the elevated curb of the entryway. He fell and struck his head on the sliding glass doors, sustaining various injuries. Mr. Primeaux subsequently filed suit for personal injuries on October 19, 2015.[1]

         The defendants answered the petition on January 15, 2016 and filed a motion for summary judgment on March 14, 2017.[2] The defendants contended that Mr. Primeaux could not prove that his injuries were caused by an unreasonably dangerous condition on Best Western's premises. Therefore, according to the defendants, Mr. Primeaux could not satisfy his burden of proof pursuant to LSA-R.S. 9:2800.6, the Merchant Liability Statute, and the defendants were entitled to judgment as a matter of law. Particularly, the defendants asserted that the curb was painted bright yellow and was not hidden by debris or other obstructions. Instead, the defendants argued that the curb was open and obvious and was not unreasonably dangerous. Mr. Primeaux simply failed to see what should have been seen.

         Mr. Primeaux opposed the motion, arguing that various code violations existed in the entryway of the Best Western which rendered the premises unreasonably dangerous. To establish these code violations, Mr. Primeaux offered the affidavit of Mitchell Wood, a licensed architect with knowledge and experience concerning planning and design for hotels. Mr. Wood attested that he reviewed the petition as well as photos of the entryway; however, there was no indication in the affidavit that Mr. Wood performed an inspection of the premises or personally observed the relevant area prior to the execution of his affidavit on April 19, 2017. Mr. Primeaux acknowledged that the curb was painted yellow, but offered the affidavit of witness, Angela Petry, to establish that the paint was dull, faded, and chipped. Finally, Mr. Primeaux asserted that the motion was premature because discovery was on-going.

         The defendants filed a reply memorandum in response to Mr. Primeaux's opposition and objected to Mr. Wood's affidavit.[3] See LSA-C.C.P. art. 966D(2). The defendants contended that the affidavit was not based on personal knowledge, as required by LSA-C.C.P. art. 967A but, instead, was based solely on unidentified photographs and the petition. Consequently, the defendants argued that Mr. Wood failed to affirmatively establish that he was competent to testify to the matters set forth in the affidavit.

         On May 4, 2017, the day before the hearing on the defendants' motion, Mr. Primeaux filed a supplemental affidavit of Mr. Wood wherein he confirmed the opinions set forth in his original affidavit but stated that he performed an inspection of the premises, particularly the exterior curb ramp, the entry, and the exterior ceramic floor surface, on May 3, 2017.

         A hearing on the defendants' motion for summary judgment was held on May 5, 2017. The trial court granted the defendants' motion for summary judgment at the conclusion of the hearing. The trial court examined the photographs submitted by both parties and noted that, although the parties disagreed regarding the brightness of the yellow paint, they agreed, and the photographs established, that the curb was painted yellow. The trial court found the curb was "clearly visible" and distinct from the surrounding area and concluded that the complained of condition was open and obvious and, therefore, was not unreasonably dangerous.

         The trial court did not expressly rule on the defendants' objections to the exhibits attached to Mr. Primeaux's original opposition. However, it is clear that the trial court considered Mr. Wood's affidavit, despite the court's acknowledgment that Mr. Wood did not go to the scene of the plaintiff's fall prior to submitting the original affidavit. The trial court's comments made during its oral ruling demonstrate that the court determined that Mr. Wood's affidavit did not create a genuine issue of material fact concerning whether the curb was unreasonably dangerous. Particularly, the court noted that Mr. Wood's affidavit did not discuss factors typically cited by experts as being relevant to the determination of whether a condition is unreasonably dangerous, such as line of sight and distractions.[4]

         At the hearing on the motion, the defendants objected to Mr. Primeaux's supplemental opposition and attached exhibits and argued that LSA-C.C.P. art. 966 prohibited him from filing supplemental exhibits in support of his opposition and that the exhibits were untimely. The trial court sustained this objection, and Mr. Primeaux proffered the excluded exhibits.[5]

         Mr. Primeaux filed a motion and order for devolutive appeal in July 2017. However, the trial court's judgment lacked proper decretal language and was not a final, appealable judgment. Consequently, the appeal was dismissed on December 7, 2017. See Earl Primeaux v. Best Western Plus Houma Inn, Cajun Lodging, LLC, and ABC Insurance Company, 17-1328 (La.App. 1 Cir. 12/7/17). An amended judgment containing the proper decretal language was signed on April 25, 2018. From this judgment, Mr. Primeaux appeals.

         In his first two assignments of error, Mr. Primeaux argues that the trial court erred by finding that the defendants met their burden of proof on summary judgment. According to Mr. Primeaux, Mr. Wood's affidavit established that the curb presented an unreasonable risk of harm, was a contributing factor to his fall, and the defendants knew or should have known of its deficient design. In his final assignment of error, Mr. Primeaux asserts that the trial court erred in granting the motion because discovery was incomplete.


         The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966A(2). A motion for summary judgment shall be 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. LSA-C.C.P. art. 966A(3).

         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. Williams v. Liberty Mut. Fire Ins. Co., 16-0996 (La.App. 1 Cir. 3/13/17), 217 So.3d 421, 423, writ denied, 17-0624 (La. 6/5/17), 219 So.3d 338. The burden of proof rests with 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 ...

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