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Tilley v. City of Walker

Court of Appeals of Louisiana, First Circuit

December 30, 2019

Krystal Tilley, individually and on behalf of elijah tilley
v.
City of Walker, City of Walker Parks and Recreation, City of Walker Department of Public Works and Parish of Livingston

          Appealed from the Twenty-First Judicial District Court In and for the Parish of Livingston State of Louisiana Docket Number C153573 Section C The Honorable Robert H. Morrison, III, Judge Presiding

          David M. Lefeve Baton Rouge, Louisiana ATTORNEY FOR APPELLANT PLAINTIFF- Krystal Tilley, individually and on behalf of Elijah Tilley

          Christopher M. Moody Albert D. Giraud Hammond, Louisiana ATTORNEYS FOR APPELLEE DEFENDANT- City of Walker

          Before: Welch, Chutz, and Lanier, JJ.

          WELCH, J.

         The plaintiff, Krystal Tilley-individually and on behalf of her minor child, Elijah Tilley-appeals the trial court's judgment granting the City of Walker's motion for summary judgment. For the following reasons, we affirm.

         Facts and Procedural History

         On October 15, 2015, Elijah Tilley was playing on a seesaw at C.E. "Punk" Smith Memorial Park in Walker, Livingston Parish, Louisiana. At some point while riding the seesaw, the seesaw broke, and Elijah fell to the base of the seesaw and suffered a broken right arm, which required surgery. Ms. Tilley subsequently brought suit against the City of Walker, the City of Walker Parks and Recreation, the City of Walker Department of Public Works, and the Parish of Livingston. The City of Walker ("City")[1] answered the petition, asserting general denials except admitting that it owned the park where the accident occurred. The City alleged that it had no actual or constructive notice of any defective condition, that any purported defect did not rise to the level of creating an unreasonable risk of harm, and therefore, it was not liable under La. R.S. 9:2800. Further, the City asserted that it was entitled to immunity as a public entity under La. R.S. 9:2791, 2798.1, and 2795.

         The City moved for summary judgment, contending that there was no genuine issue of material fact because there was no defect in the seesaw in question; the City had no actual or constructive knowledge of any alleged defect; and the alleged defect was not the cause-in-fact of the plaintiffs injury. The City also argued that because the park is open to the public on a non-profit basis for recreational use, it was entitled to immunity pursuant to La. R.S. 9:2795.

         Ms. Tilley opposed the City's motion, offering an expert report to establish a genuine issue of material fact as to whether the seesaw was defective, the City had constructive notice, and causation. Ms. Tilley also filed a motion to compel the City to make the seesaw available to Ms. Tilley's expert for additional inspection, which the trial court granted in a judgment signed April 11, 2018.

         On Friday, June 1, 2018, Ms. Tilley faxed a copy of her expert's supplemental report to the trial court and the City. On Monday, June 4, 2018, the trial court held a hearing on the City's motion for summary judgment. The City objected to the late-filed expert report by Ms. Tilley. Following the hearing, the trial court took the matter under advisement. On July 10, 2018, the trial court signed a judgment granting the City's motion for summary judgment and dismissing Ms. Tilley's claims against the City, with prejudice. The trial court also issued reasons for judgment.

         Ms. Tilley filed a devolutive appeal of the June 10, 2018 judgment. After the appeal was lodged, Ms. Tilley filed a motion to supplement the trial court's record with an affidavit of her expert and her expert's supplemental report. The trial court granted Ms. Tilley's motion expressly noting that "per communication with [the City's] counsel, there [was] no objection to the supplement."

         Law and Discussion

         Motion for ...


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