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Carrero v. Mandina's, Inc.

Court of Appeals of Louisiana, Fourth Circuit

August 7, 2019

ANN MARIE CARRERO, ELIZABETH ANN CARRERO AND NANCY CARRERO VINCI
v.
MANDINA'S, INC. D/B/A MANDINA'S RESTAURANT

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-08118, DIVISION "M" Honorable Paulette R. Irons, Judge

          Perry R. Staub, Jr. Mark E. Van Horn Matthew S. Foster TAGGART MORTON, L.L.C. COUNSEL FOR PLAINTIFFS/APPELLANTS

          Thomas G. Buck Brett W. Tweedel BLUE WILLIAMS, L.L.P. COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins

          SANDRA CABRINA JENKINS, JUDGE

         REVERSED AND REMANDED

         This 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         On 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.

         In the 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 Code[1] and the Americans with Disability Act ("ADA") Accessibility Guidelines.

         On July 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.

         On 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.

         The Plaintiffs timely appealed.

         DISCUSSION

         Standard of Review

         We 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).

         Burden of Proof

         La. 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.

         Premises Liability

         In 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 following modifications.

         La. 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 ...

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