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
H. Aucoin Todd Musgrave New Orleans, Louisiana Counsel for
Defendants/Appellees Best Western Plus Houma Inn, LLC and
Cajun Lodging, LLC
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM,
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
AND PROCEDURAL HISTORY
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.
defendants answered the petition on January 15, 2016 and
filed a motion for summary judgment on March 14,
2017. 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.
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.
defendants filed a reply memorandum in response to Mr.
Primeaux's opposition and objected to Mr. Wood's
affidavit. 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.
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,
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.
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
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
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.
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.
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).
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 ...