Staci Sanzone and Randy Sanzone Versus City of New Orleans, by and Through the New Orleans Aviation Board, and Ace Property and Casualty Insurance Company

STACI SANZONE AND RANDY SANZONE NO. 24-C-413

VERSUS FIFTH CIRCUIT

CITY OF NEW ORLEANS, BY AND THROUGH COURT OF APPEAL THE NEW ORLEANS AVIATION BOARD, AND ACE PROPERTY AND CASUALTY STATE OF LOUISIANA INSURANCE COMPANY

September 17, 2024

Linda Wiseman First Deputy Clerk

IN RE CITY OF NEW ORLEANS, BY AND THROUGH THE NEW ORLEANS AVIATION BOARD, AND ACE PROPERTY AND CASUALTY INSURANCE COMPANY

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE LEE V. FAULKNER, JR., DIVISION "P", NUMBER 828-251

Panel composed of Judges Susan M. Chehardy, John J. Molaison, Jr., and Scott U. Schlegel

WRIT GRANTED IN PART; DENIED IN PART

In this writ application, the relators/defendants seek a review of the trial court’s rulings, which denied their motion for summary judgment and found admissible specific exhibits offered by the plaintiffs in opposition to the motion for summary judgment. For the following reasons, we grant the writ, in part, on the issue of the plaintiffs’ exhibit showing post-accident remedial measures by the defendants. In all other respects, we deny relief.

The significant underlying facts in this civil matter are largely undisputed. On the evening of May 14, 2021, the plaintiff, Staci Sanzone, tripped and fell on an uneven section of the parking lot walkway at the New Orleans Louis Armstrong International Airport (“the Airport”), owned by the City of New Orleans, operated by the New Orleans Aviation Board and insured by Ace Property and Casualty Insurance Company (“the defendants.”) The Airport admits that it had notice of the uneven condition of the walkway before the incident and had previously placed a single orange traffic cone on the section of pavement that immediately preceded the drop-in surface continuity. In their motion for summary judgment, the defendants contended that the plaintiffs could not prove that the differing height levels in the sidewalk presented an unreasonable risk of harm and also could not prove that the defendants failed to fulfill their duty to warn by placing an orange cone by the change in sidewalk height.

24-C-413

We first address the evidentiary issues raised in the application. The defendants contend the trial court erred by denying the motion to strike the plaintiffs’ expert report as untimely produced.1 However, as accurately observed by the trial judge, the matter had no trial setting nor cut-off dates for discovery between the parties. “[T]he trial court has broad discretion when regulating pre- trial discovery, which will not be disturbed on appeal [in absence of] a clear showing of abuse.” Trichell v. McClure, 21-1240 (La. App. 1 Cir. 4/8/22), 341 So.3d 856, 862. On the showing made, we do not find that the defendants have shown an abuse of the trial court’s discretion in allowing the plaintiffs to include their expert’s report in opposition to the motion for summary judgment.

Next, the defendants argue that the trial court erred in considering as evidence a plaintiff’s exhibit identified as “Photograph 5,” which is bates stamped “Sanzone 00014,” that purports to show the site of Mrs. Sanzone’s accident after the airport had made it level. The defendants contend that the photograph is not authenticated correctly and is impermissible as evidence of subsequent measures. La. C.E. art. 407 states:

In a civil case, when, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This Article does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, authority, knowledge, control, or feasibility of precautionary measures, or for attacking credibility.

Here, the photograph at issue correlates to the statement in the plaintiff’s affidavit, “The photograph contained in bated [sic] stamped Sanzone 00014 is a true and accurate representation of the scene of the subject fall in July 2022 after the sidewalk was corrected and fixed.” Without an explanation of the purpose of the photo, this would appear to be the type of evidence inadmissible under La. C.E. art. 407. Accordingly, we grant the writ to the extent that the trial court found the picture admissible in the context of the plaintiffs’ opposition to the motion for summary judgment, insofar as the evidence of the subsequent remedial measure was presented to prove negligence or culpable conduct.

We now consider the denial of the defendants’ motion for summary judgment itself. A motion for summary judgment is a procedural device used to avoid a full-scale trial where there is no genuine issue of material fact. Bell v. Parry, 10-369 (La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure secures every action's just, speedy, and inexpensive determination. La. C.C.P. art. 966(A)(2). The motion “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 this case, the defendants argue that the plaintiffs cannot prove two elements of negligence: that the differing height levels in the sidewalk presented an unreasonable risk of harm and that the defendants did not fulfill their duty to warn by placing an orange cone by the change in sidewalk height.

1 The defendants do not assert that the plaintiffs’ opposition itself was untimely filed under La. C.C.P. art 966(B)(2).

While there are several photographs of the uneven pavement where Mrs. Sanzone fell and approximations of the height differences in the sections,2 there is nothing in the record to demonstrate that the plaintiffs or the defendants took precise objective measurements. This information is vital, as courts use the difference in elevation as a factor to determine whether a risk is unreasonable. The absence of a concrete measurement could undoubtedly qualify as a genuine issue of material fact. However, repairing the sidewalk by the airport makes an actual measurement impossible. Even accepting the airport’s measurements as accurate, elevations of over 3 inches have been deemed unreasonable risks. See, Butkiewicz v. Evans, 06-236 (La. App. 5 Cir. 9/26/06), 943 So.2d 509, 514. We, therefore, find this to be a material issue of fact that precludes summary judgment.

While it is undisputed that the Airport placed an orange traffic cone on the sidewalk to draw attention to the drop in elevation, an issue of material fact remains whether this, alone, provided sufficient notice and warning to persons who used the walkway.3 In her deposition testimony, Mrs. Sanzone stated that orange traffic cones were a common sight at the airport, and the cone in question gave no unique indication of a hazard. The plaintiff’s export report concludes that the presence of the cone in a parking garage setting could have multiple meanings, including blocking off an area for striping and instructing persons not to park in a specific location. On the showing made, we find no error in the trial court’s ruling that sufficient notice of the hazard at issue is a question of material fact that precludes summary judgment.

Accordingly, for the previous reasons, we find that the photo of the airport’s remedial measures as offered in repairing the accident site was improper and should not be considered. We grant the application in that regard. In all other respects, we deny relief on the showing made.

Gretna, Louisiana, this 17th day of September, 2024.

JJM SMC SUS

2 A report by airport employee Maria Belinski estimated that the location had an “uneven ground surface of about 3.5".” It appears from the plaintiff’s expert report that the sidewalk had been leveled and repaired at the time of his inspection, and he therefore relied on the airport’s own assessment that the drop was 3 ½ inches. Mrs. Sanzone stated in her deposition that the drop was closer to 6 inches in height. 3 In another case involving the use of cones to warn of a hazardous condition, Green v. Brookshire Grocery Co., 53,066 (La. App. 2 Cir. 9/25/19), 280 So.3d 1256, 1261, the Second Circuit found that a genuine issue of fact existed of whether a cone’s placement at a particular location was sufficient to warn patrons of a hazardous condition on the floor.

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 09/17/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-C-413 E-NOTIFIED 24th Judicial District Court (Clerk) Hon. Lee V. Faulkner, Jr. (DISTRICT JUDGE) Scott C. Stansbury James M. Garner

MAILED David I. Courcelle Attorney at Law 3500 North Causeway Boulevard Suite 185 Metairie, LA 70002