APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 769-850, DIVISION
"E" HONORABLE JOHN J. MOLAISON, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, NICHOLAS THOMPSON Harry E.
COUNSEL FOR DEFENDANT/APPELLEE, RICHARDS CLEARVIEW, LLC D/B/A
CLEARVIEW MALL R. Todd Musgrave, Sean P. Sullivan
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Marc E. Johnson
E. JOHNSON, JUDGE
Nicholas Thompson, appeals the summary judgment in favor of
Defendant/Appellee, Richards Clearview, LLC d/b/a Clearview
Mall (hereinafter referred to as "Clearview Mall"),
that dismissed his slip-and-fall lawsuit filed in the
24th Judicial District Court, Division
"E". For the following reasons, we reverse the
trial court's judgment and remand the matter for further
AND PROCEDURAL HISTORY
March 15, 2016, Mr. Thompson visited Clearview Mall in
Metairie, Louisiana, with his girlfriend. At approximately
7:00 p.m., as he was exiting the main entrance of the mall
facing Veterans Boulevard and heading toward his vehicle, he
stepped off of the red-painted curb leading to the parking
lot. While stepping down from the curb, Mr. Thompson's
ankles twisted, he lost his footing, and he fell into the
parking lot, allegedly causing bodily injury.
Thompson filed a "Petition for Damages" against
Clearview Mall, alleging that the mall exit was defective and
unreasonably dangerous. He specifically alleged that
Clearview Mall was negligent in violating the building code
by having a curb 9 inches above the parking lot grade and
only having a 36-inch walkway between the column and the edge
of the sidewalk. Mr. Thompson further alleged that he
sustained a right bimalleolar ankle fracture as a result of
his fall, necessitating awards of general and special damages
from Clearview Mall.
opposition, Clearview Mall filed a "Motion for Summary
Judgment." In the motion, it asserted there was no
genuine issue of material fact that the bright red-painted
curb at issue was open and obvious to all who encountered it
and was not unreasonably dangerous. Clearview Mall argued
that Mr. Thompson simply misjudged his step down from the
curb and fell because his right and left ankles both twisted.
Clearview Mall contended Mr. Thompson could not satisfy his
burden of proof at trial that the curb presented an
unreasonable risk of harm, and it was entitled to summary
judgment as a matter of law.
trial court held a hearing on Clearview Mall's motion on
July 24, 2018. At the conclusion of the arguments, the trial
judge orally found that the curb was well-marked and was open
and obvious. The trial judge also found that it did not
appear from the video footage of the incident that Mr.
Thompson was paying attention to where he was walking. In its
written judgment, the trial court granted summary judgment in
favor of Clearview Mall and dismissed Mr. Thompson's
claims with prejudice. The instant appeal followed.
appeal, Mr. Thompson solely alleges the trial court erred in
finding that Clearview Mall met its burden of proving the
curb in question was not unreasonably dangerous and was open
and obvious to all. He argues that the affidavit and
evaluation of his expert, Neil B. Hall, was sufficient
evidence to raise a genuine issue of material fact and defeat
summary judgment. Mr. Thompson contends that Mr. Hall's
observations and measurements demonstrated that the curb was
9 inches high and exceeded the Jefferson Parish Building
Code. He further contends that Mr. Hall opined that Mr.
Thompson would not have anticipated the additional riser
height and his fall would be categorized as a misstep or
misjudged step due to the excessive height of the curb riser.
Thompson also argues that the risk-utility balancing test
shows that the 9-inch curb height was unreasonably dangerous
and was not open and obvious. He asserts that Clearview Mall
failed to provide evidence that he was aware of the defective
condition of the curb or that he was familiar with that
particular curb; thus, Clearview Mall failed to prove that
the defective curb was open and obvious. Mr. Thompson further
asserts that the ...