APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH
JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF
LOUISIANA NO. 786-834, DIVISION "A" HONORABLE
RAYMOND S. STEIB, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/RESPONDENT, BRANDY BARKER David P.
Vicknair Keegan E. Chopin Hope E. Hughes
COUNSEL FOR DEFENDANT/RELATOR, TOWN OF GRAND ISLE Christopher
M. Moody Albert D. Giraud
composed of Judges Marc E. Johnson, Robert A. Chaisson, and
John J. Molaison, Jr.
E. JOHNSON JUDGE.
City of Grand Isle ("Grand Isle"), seeks review of
the trial court's September 4, 2019 judgment denying its
Motion for Summary Judgment against Respondent/Plaintiff,
Brandy Barker. Grand Isle prays that this Court grant its
motion for summary judgment and dismiss the matter, with
prejudice, at plaintiff's cost. For the following
reasons, we grant the writ application.
April 13, 2018, Brandy Barker attended the Blessing of the
Fleet Fair organized by Grand Isle. Ms. Barker first used the
restroom trailer at least 20 minutes after arriving at the
fair. She testified that she wore flip-flops that night that
were "maybe a year old," and recalled that the
floors were a little wet, but "not like the second
time" she used the restroom. Ms. Barker went to use the
restroom trailer approximately two hours later and noticed
that the floors were very wet. She said that she could not
recall whether or not the floor underneath the stall she
entered was wet. As she prepared to use the restroom, Ms.
Barker slipped and fell. As a result of the fall, Ms. Barker
broke her tibia, fibia and ankle, and dislocated her other
Isle moved that it was entitled to summary judgment because
of the lack of evidence that Grand Isle had constructive
notice of the restroom trailer conditions and that the
alleged defective condition was open and obvious, and
therefore not unreasonably dangerous. At the August 28, 2019
hearing on the motion, Grand Isle argued that summary
judgment was not precluded on the issue of whether a
condition was open and obvious. The trial judge noted that he
has been overturned before by this Court because "water
on the floor is, difficult to prove to be open and obvious to
everyone and that that was a question of fact, and
that's, that's where I have to fall."
courts review motions for summary judgment de novo,
asking the same questions as the trial court to determine
whether summary judgment is appropriate. Salathe v.
Parish of Jefferson Through Department of Sewerage,
19-251 (La.App. 5 Cir. 7/22/19); ___So.3d ___, 2019 WL3294958
at **3 citing Champagne v. Ward, 03-3211 (La.
1/19/05), 893 So.2d 773, 776. In determining whether there
are any genuine issues of material fact, courts cannot
consider the merits, make credibility determinations,
evaluate testimony, or weigh evidence. Id. citing
Davis v. Scottsdale Ins. Co., 13-255 (La.App. 5 Cir.
10/30/13); 128 So.3d 471, 475-77. "Under La. R.S.
9:2800, in order to prove a public entity is liable for
damages caused by a thing, the plaintiff must establish: (1)
custody or ownership of the defective thing by the public
entity; (2) the defect created an unreasonable risk of harm;
(3) the public entity had actual or constructive notice of
the defect; (4)the public entity failed to take corrective
action within a reasonable time; and (5)causation."
Chambers v. Village of Moreauville, 11-898 (La.
1/24/12); 85 So.3d 593, 597.
Isle urges that there is a lack of factual support for Ms.
Barker's claim that it had constructive notice of the
condition of the restroom trailer at the fair. The plaintiff
bears the burden at trial of proving actual or constructive
notice. White v. Select Specialty Hosp., 12-611
(La.App. 5 Cir. 3/13/13); 110 So.3d 1254, 1260-61.
Constructive notice is defined by La. R.S. 9:2800 as the
existence of facts that infer actual knowledge. Jones v.
Hawkins, 98-1259 (La. 3/19/99); 731 So.2d 216, 220.
instant case, Ms. Barker and the other affiants admit that
they did not advise Fair employees of the restroom trailer
conditions. Two of the three witnesses who accompanied Ms.
Barker to the fair said in their sworn affidavits that they
went into the same restroom trailer one hour and one and a
half hours before Ms. Barker slipped and fell in the stall.
All witnesses, including the one who accompanied Ms. Barker
to the restroom trailer the first time, approximately thirty
minutes after the group arrived at the fair, reported that
the restroom floor was wet with clear water/liquid. All three
also noted that it had been raining for several hours that
night, and the Fair rides were shut down because of the
mover will not bear the burden of proof at trial . . . 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 . . . 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. La.
C.C.P 966(D)(1). Grand Isle argues that the wet restroom
trailer floor was an open and obvious condition, and
therefore not unreasonably dangerous. Based on the evidence
presented, we agree. Ms. Barker and her witnesses all
testified that it was raining outside that night and the
restroom trailer floor was wet. The affiant that went to the
same restroom trailer where Ms. Barker's accident took
place approximately an hour and a half earlier testified that
the toilets were clearly backed up and had been overflowing,
the floor of the restroom trailer was very dirty, "muddy
around the sink and general walking spaces," and full of
water and that because the clear nature of the liquid she
"could not see whether the floors in the actual stalls
were flooded [. . . but] assumed it was slippery and wet due
to the toilet paper sticking to the floors in the bathroom
stall I observed[.]"
judgment is not precluded "[. . .] when no legal duty is
owed because the condition encountered is obvious and
apparent to all and not unreasonably dangerous."
Allen v. Lockwood, 14-1724 (La. 2/13/15); 156 So.3d
650, 653 citing Bufkin v. Felipe's Louisiana,
LLC, 14-0288 (La. 10/15/14); 171 So.3d 850, 861 n.3.
"The determination of an unreasonable risk of harm is a
question of fact; however [. . .], our jurisprudence does not
preclude the granting of a motion for summary judgment in
cases where the plaintiff is unable to produce factual
support for his or her claim that a complained-of condition
or thing is unreasonably dangerous. Bufkin, supra at
the foregoing, we find that the water on the restroom floor
was an open and obvious condition and, ...