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Thompson v. Richards Clearview, LLC

Court of Appeals of Louisiana, Fifth Circuit

May 15, 2019

NICHOLAS THOMPSON
v.
RICHARDS CLEARVIEW, LLC D/B/A CLEARVIEW MALL

          ON 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 PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, NICHOLAS THOMPSON Harry E. Forst

          COUNSEL FOR DEFENDANT/APPELLEE, RICHARDS CLEARVIEW, LLC D/B/A CLEARVIEW MALL R. Todd Musgrave, Sean P. Sullivan

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson

          MARC E. JOHNSON, JUDGE

         Plaintiff/Appellant, 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 proceedings.

         FACTS AND PROCEDURAL HISTORY

         On 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.

         Mr. 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.

         In 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.

         The 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.

         LAW AND ANALYSIS

         On 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.

         Mr. 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 ...


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