ANN MARIE CARRERO, ELIZABETH ANN CARRERO AND NANCY CARRERO VINCI
MANDINA'S, INC. D/B/A MANDINA'S RESTAURANT
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-08118,
DIVISION "M" Honorable Paulette R. Irons, Judge
R. Staub, Jr. Mark E. Van Horn Matthew S. Foster TAGGART
MORTON, L.L.C. COUNSEL FOR PLAINTIFFS/APPELLANTS
G. Buck Brett W. Tweedel BLUE WILLIAMS, L.L.P. COUNSEL FOR
composed of Judge Terri F. Love, Judge Roland L. Belsome,
Judge Sandra Cabrina Jenkins
CABRINA JENKINS, JUDGE
action stems from a fatal fall by an elderly customer, Mrs.
Marie Carrero, as she exited Mandina's Restaurant using a
ramp that serves as a main entrance/exit to the restaurant on
Canal Street in New Orleans. Mrs. Carrero's daughters,
Ann Marie Carrero, Elizabeth Ann Charlotte Carrero, and Nancy
Lee Carrero Vinci (collectively, the "Carreros" or
"Plaintiffs"), appeal the trial court's October
4, 2018 judgment granting a Motion for Summary Judgment filed
by appellee, Mandina's, Inc. d/b/a Mandina's
Restaurant ("Mandina's), and the trial court's
December 12, 2018 judgment denying the Carreros' Motion
for New Trial. For the reasons that follow, we reverse the
October 4, 2018 judgment and remand for further proceedings.
AND PROCEDURAL BACKGROUND
August 12, 2016, the Carreros filed a Petition for Damages
("Petition") against Mandina's alleging
negligence and strict liability for the injury and death of
Mrs. Carrero on August 14, 2015. On that date, Mrs. Carrero
had dined with her daughter at Mandina's. The Petition
alleges that Mrs. Carrero exited the Mandina's building
using the sloped, step-less handicap ramp leading from the
building down to the city street. The Petition asserts that,
because of Mrs. Carrero's age and physical condition, she
walked down the right side of the ramp supporting herself
with her right hand on the middle handrail. According to the
Petition, unbeknownst to Mrs. Carrero, the middle handrail
ended without warning before the ramp ended, and when Mrs.
Carrero reached the end of the ramp, her right hand slipped
off the end of the handrail, causing her to lose her balance
and tumble to the concrete ramp and the ground. As a result,
Mrs. Carrero fell on her head and sustained a closed head
injury. She was taken to the emergency room, where a
computerized tomography ("CT") scan showed a
frontal scalp hematoma. Hours after returning home, Mrs.
Carrero developed right-side weakness and lethargy. She
returned to the emergency room where a second CT scan showed
a left frontal lobe parenchymal hematoma, which had grown
from two centimeters ("cm") in size to 6.4 cm x 5
cm x 4.6 cm, and which had surrounding vasogenic edema,
resulting in intracranial hemorrhage. On this second visit to
the emergency room, Mrs. Carrero was admitted to the hospital
and she lapsed into a comatose state. On August 17, 2015, she
was transferred to hospice care for end-of-life protocol.
Mrs. Carrero passed away from complications related to the
intracranial hemorrhage on August 22, 2015.
Petition, the Carreros assert that Mandina's is liable
for survival and wrongful death damages for its failure to
properly construct, install, or maintain the ramp and
handrail, free from all vices and defects and conditions that
would render it unreasonably dangerous. The Petition also
alleges that the handrail, which failed to extend at least 12
inches beyond the end of the sloped ramp, violated the ANSI
and the Americans with Disability Act ("ADA")
16, 2018, Mandina's filed a Motion for Summary Judgment
seeking dismissal of Plaintiffs' claims on two grounds:
(1) Mandina's did not know, nor was there any reason that
it should have known, of the alleged defect in the handrail;
and (2) the handrail was not reasonably dangerous because it
was open and obvious to all.
September 13, 2018, the trial court held a hearing on the
Motion for Summary Judgment, and on October 4, 2018, the
court signed a judgment granting the motion and dismissing
the Carreros' claims, with prejudice. On October 12,
2008, Plaintiffs filed a Motion for New Trial, which the
trial court denied on December 12, 2018.
Plaintiffs timely appealed.
apply a de novo standard of review in examining a
trial court's ruling on summary judgment. Hare v.
Paleo Data, Inc., 11-1034, p. 9 (La.App. 4 Cir. 4/4/12),
89 So.3d 380, 387. Accordingly, we use the same criteria that
govern a trial court's consideration of whether summary
judgment is appropriate. Id. "[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." La. C.C.P. Art. 966(A)(3).
In "'determining whether an issue is genuine, courts
cannot consider the merits, make credibility
determinations, evaluate testimony, or weigh
evidence.'" Fiveash v. Pat
O'Brien's Bar, Inc., 15-1230, p. 7 (La.App. 4
Cir. 9/14/16), 201 So.3d 912, 917 (emphasis in original)
(quoting Quinn v. RISO Invest., Inc., 03-0903, pp.
3-4 (La.App. 4 Cir. 3/3/04), 869 So.2d 922, 926).
C.C.P. art. 966(D)(1) governs the mover's burden on a
motion for summary judgment:
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 existence
of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.
general, the Carreros' Petition claims that Mandina's
is liable to them for allowing an unreasonably dangerous
condition to exist on the handrail of the building ramp. The
Carreros' claims are thus rooted in La. C.C. arts. 2317,
2317.1, and 2322. La. C.C. art. 2317 provides:
We are responsible, not only for the damage occasioned by our
own act, but for that which is caused by the act of persons
for whom we are answerable, or of the things which we have in
our custody. This, however, is to be understood with the
C.C. art. 2317.1 provides:
The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing
that he knew or, in the exercise of reasonable care, should
have known of the ruin, vice, or defect which caused the
damage, that the damage could have been prevented by the
exercise of ...