Eugene R. Guilbeaux v. Lupo Enterprises, L.L.C. and United Fire & Casualty Indemnity Company

EUGENE R. GUILBEAUX * NO. 2021-CA-0053

VERSUS * COURT OF APPEAL LUPO ENTERPRISES, L.L.C. * AND UNITED FIRE & FOURTH CIRCUIT CASUALTY INDEMNITY * COMPANY STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-01566, DIVISION “D” Honorable Nakisha Ervin-Knott, Judge ****** Judge Tiffany G. Chase ****** (Court composed of Judge Rosemary Ledet, Judge Tiffany G. Chase, Judge Dale N. Atkins)

LEDET, J., CONCURS IN THE RESULT ATKINS, J., CONCURS IN THE RESULT

Anthony L. Glorioso 412 Dolhonde St. Gretna, LA 70053

COUNSEL FOR PLAINTIFF/APPELLANT

Matthew A. Mang Victoria H. Fabre LOBMAN, CARNAHAN, BATT, ANGELLE & NADER 400 Poydras Street, Suite 2300 New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED MAY 19, 2021

TGC 1

1 Eugene Guilbeaux (hereinafter “Mr. Guilbeaux”) seeks review of the trial

2 court’s October 5, 2020 judgment granting Lupo Enterprises, L.L.C. and United

3 Fire & Casualty Indemnity Company’s1 (hereinafter collectively “defendants”)

4 motion for summary judgment. After consideration of the record before this Court

5 and the applicable law, we affirm the judgment of the trial court.

6 Facts and Procedural History

7 On February 22, 2016, Mr. Guilbeaux was a patron at Lakeview Grocery

8 Store. Upon exiting the store, the grocery cart he was pushing became lodged in an

9 expansion joint located at the entrance/exit ramp causing the cart to abruptly stop.2

10 Mr. Guilbreaux alleges that the stopping of the cart caused him to fall and sustain

11 injuries to his face, eyes and teeth.

1 The insurance company was improperly named as United Fire & Casualty Indemnity Company in the petition for damages. However, United Fire & Casualty Indemnity Company answered the petition for damages correcting the name to United Fire & Casualty Company. 2 Mr. Guilbeaux contends that the expansion joint on the ramp had not been properly maintained thus, creating an unreasonable risk of harm.

1 On February 16, 2017, Mr. Guilbeaux filed a petition for damages against 2 Lupo Enterprises, L.L.C.3 and United Fire & Casualty Indemnity Company 3 alleging negligence, maintaining that the ramp created an unreasonable risk of 4 harm and caused him bodily injury. 5 On February 8, 2018, defendants filed a motion for summary judgment 6 arguing that no genuine issues of material fact exist because Mr. Guilbeaux could 7 not establish the essential elements of La. C.C. art. 2317.1.4 Specifically, 8 defendants contended that Mr. Guilbeaux could not establish that the ramp created 9 an unreasonable risk of harm or that the store had actual or constructive knowledge 10 that the ramp was defective. In support, defendants attached the deposition 11 transcripts of Mr. Guilbeaux and Juli Richard;5 photographs of the ramp at 12 Lakeview Grocery Store; and affidavits of Thomas Lupo and Marc L. Robert, III.6 13 In opposition to defendants’ motion for summary judgment, Mr. Guilbeaux 14 suggested the court apply La. R.S. 9:2800.6 rather than La. C.C. art. 2317.1. He 15 argued that summary judgment was inappropriate because he had in fact 16 established that the ramp was defective and thus, created an unreasonable risk of

3 Lupo Enterprises, L.L.C. is the property manager for Harrison 801-827, LLC, which is the owner/lessor for Lakeview Grocery Store. 4 La. C.C. art. 2317.1: 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 reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. 5 Juli Richard is the wife of Mr. Guilbeaux. 6 Thomas Lupo is a member of Lupo Enterpises, LLC. Marc L. Robert, III is the general manager of Robert Resources, LLC, which provides management services to Lakeview Grocery Store.

1 harm. Specifically, Mr. Guilbeaux pointed to a deviation in the expansion joint and 2 noted that defendants constructed the parking lot. Alternatively, he maintained that 3 summary judgment was premature as adequate discovery had not been completed. 4 As documentary support, Mr. Guilbeaux submitted the affidavit and letter of his 5 concrete specialist James Vairin, photographs of the ramp, and medical records 6 from The Retina Institute and Vision Optique. 7 A hearing on defendants’ motion for summary judgment was held July 13, 8 2018. By judgment dated July 20, 2018, the trial court denied defendants’ motion 9 for summary judgment.7 Defendants sought supervisory review in this Court, 10 which was denied on October 2, 2018.8 The Louisiana Supreme Court denied 11 supervisory writs on January 8, 2019.9 12 On October 15, 2019, defendants re-urged their motion for summary 13 judgment arguing that Mr. Guilbeaux could not establish his burden of proof, 14 under either La. R.S. 9:2800.6 or La. C.C. art. 2317.1, that the ramp created an 15 unreasonable risk of harm. Additionally, defendants maintained that the discovery 16 cut-off date expired without Mr. Guilbeaux conducting any additional discovery. 17 In support of their motion, defendants submitted the affidavit and report of civil 18 engineer Kevin Vanderbrook; deposition transcripts of James Vairin and Mr. 19 Guilbeaux; photographs of the ramp; and affidavits of Thomas Lupo and Marc L. 20 Robert, III. In opposing the re-urged motion for summary judgment, Mr. 21 Guilbeaux argued that he had presented sufficient evidence to establish his burden

7 The trial court stated that Mr. Guilbeaux should be afforded an opportunity to conduct additional discovery. 8 Guilbeaux v. Lupo Enterprises, L.L.C. and United Fire & Casualty Indemnity Company, 2018- 0671 (La.App. 4 Cir. 10/2/18) (unpub.), writ denied, 2018-1738 (La. 1/8/19), 259 So.3d 1023. 9 Id.

1 of proof pursuant to La. R.S. 9:2800.6 and thus, a genuine issue of material fact 2 exists as to whether the ramp was defective and created an unreasonable risk of 3 harm. Additionally, he asserted that because this Court and the Louisiana Supreme 4 Court previously denied writs, the issues on summary judgment constitute “law of 5 the case.” 6 The trial court heard defendants’ re-urged motion for summary judgment on 7 January 10, 2020. By judgment dated October 5, 2020,10 the trial court granted the 8 defendants’ re-urged motion for summary judgment, dismissing Mr. Guilbeaux’s 9 claims against defendants with prejudice. This appeal followed.

10 Standard of Review 11 12 An appellate court reviews a trial court’s decision to grant a motion for

13 summary judgment de novo. In Chatelain v. Fluor Daniel Const. Co., this Court 14 set forth the applicable standard of review as follows:

15 Appellate courts review the grant or denial of a motion 16 for summary judgment de novo, using the same criteria 17 applied by trial courts to determine whether summary 18 judgment is appropriate. This standard of review requires 19 the appellate court to look at the pleadings, depositions, 20 answers to interrogatories, and admissions on file, 21 together with the affidavits, if any, to determine if they 22 show that no genuine issue as to a material fact exists, 23 and that the mover is entitled to judgment as a matter of 24 law. A fact is material when its existence or nonexistence 25 may be essential to the plaintiff’s cause of action under 26 the applicable theory of recovery; a fact is material if it 27 potentially insures or precludes recovery, affects a 28 litigant’s ultimate success, or determines the outcome of 29 the legal dispute. A genuine issue is one as to which 30 reasonable persons could disagree; if reasonable persons 31 could reach only one conclusion, no need for trial on that 32 issue exists and summary judgment is appropriate. To

10 The October 5, 2020 judgment noted that the original judgment was submitted on January 13, 2020 (with the notice of signing of judgment mailed on January 14, 2020). However, the trial court could not locate the original judgment and thus, re-issued its prior judgment on October 5, 2020.

1 affirm a summary judgment, we must find reasonable 2 minds would inevitably conclude that the mover is 3 entitled to judgment as a matter of the applicable law on 4 the facts before the court.

5 Chatelain v. Fluor Daniel Const. Co., 2014-1312, p. 3 (La.App. 4 Cir. 11/10/15), 6 179 So.3d 791, 793 (citations omitted). 7 Summary Judgment 8 It is well settled that “[t]he summary judgment procedure is designed to 9 secure the just, speedy, and inexpensive determination of every action… .” La. 10 C.C.P. art. 966(A)(2). The granting of a motion for summary judgment is 11 contingent upon the pleadings, depositions, answers to discovery, admissions on 12 file and affidavits demonstrating that there is no genuine issue of material fact and 13 the mover is entitled to judgment as a matter of law. Duboue v. CBS Outdoor, Inc., 14 2008-0715, p. 2 (La.App. 4 Cir. 10/1/08), 996 So.2d 561, 562. A genuine issue is 15 one as to which reasonable persons could disagree; if reasonable persons could 16 only reach one conclusion, there is no need for trial on that issue, and summary 17 judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 18 (La. 7/5/94), 639 So.2d 730, 751. A fact is material when its existence or non-19 existence may be essential to the plaintiff’s cause of action under the applicable 20 theory of recovery; a fact is material if it potentially insures or precludes recovery, 21 affects a litigant’s ultimate success, or determines the outcome of the legal dispute. 22 Chapital v. Harry Kelleher & Co., Inc., 2013-1606, p. 5 (La.App. 4 Cir. 6/4/14), 23 144 So.3d 75, 81 (quoting Mandina, Inc., v. O’Brien, 2013-0085, p. 8 (La.App. 4 24 Cir. 7/31/13), 156 So. 3d 99, 104). Whether a fact is material is a determination 25 that must be made based upon the applicable substantive law. Roadrunner Transp. 26 Sys. v. Brown, 2017-0040, p. 7 (La.App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270.

1 On a motion for summary judgment the mover bears the burden of proof but 2 is not required to negate all elements of the adverse party’s claim if the mover will 3 not bear the burden of proof at trial. La. C.C.P. art. 966 (D)(1). Thus, La. C.C.P. 4 art 966,

5 first places the burden of producing evidence at the 6 hearing on the motion for summary judgment on the 7 mover (normally the defendant), who can ordinarily meet 8 that burden by submitting affidavits or by pointing out 9 the lack of factual support for an essential element in the 10 opponent’s case. At that point, the party who bears the 11 burden of persuasion at trial (usually the plaintiff) must 12 come forth with evidence (affidavits or discovery 13 responses) which demonstrates he or she will be able to 14 meet the burden at trial. 15 16 Babin v. Winn-Dixie Louisiana, Inc., 2000-0078, p. 4 (La. 6/30/00), 764 So.2d 37,

17 39-40. If the adverse party fails to set forth specific facts demonstrating a genuine 18 issue of material fact, summary judgment shall be rendered against the adverse 19 party if appropriate. La. C.C.P. art. 967(B). 20 Discussion 21 On appeal, Mr. Guilbeaux challenges the trial court’s judgment granting 22 defendants’ re-urged motion for summary judgment alleging that genuine issues of 23 material fact are in dispute. He asserts the trial court erred in determining that he 24 did not present sufficient evidence (1) to establish that the ramp created an 25 unreasonably dangerous condition; (2) to establish that defendants had actual or 26 constructive knowledge of a defect on the ramp; and (3) to establish physical injury 27 as a result of the fall. Mr. Guilbeaux also argues the trial court erred in not 28 applying the “law of the case doctrine” to defendants’ re-urged motion for 29 summary judgment. 30

1 Law of the Case Doctrine 2 Mr. Guilbeaux argues this Court’s prior decision, denying defendants’ writ 3 application seeking review of the July 20, 2018 judgment, constitutes law of the 4 case. He maintains that the previous writ denial bars defendants from re-urging the 5 same issues on appeal. We find this argument lacks merit. 6 The law of the case doctrine generally refers to the binding effect of trial 7 court and/or appellate court rulings during later stages of the same case, including 8 the principle that an appellate court ordinarily will not reconsider its own rulings of 9 law in a subsequent appeal in the same case. Myers v. Nat’l Union Fire Ins. Co. of 10 Louisiana, 2011-0751, 2011-1326, p. 6 (La.App. 4 Cir. 4/4/12), 90 So.3d 522, 526. 11 Our Louisiana Supreme Court has delineated the policy reasons behind this 12 doctrine as (1) avoiding the re-litigation of the same issue; (2) promoting 13 consistency of result in the same action; and (3) promoting efficiency and fairness 14 to the parties by affording a single opportunity for the argument and the decision of 15 the matter at issue. Id. (quoting Day v. Campbell-Grosjean Roofing & Sheet Metal 16 Corp., 256 So.2d 105,107 (La. 1971)). 17 “Applying the ‘law of the case’ doctrine to supervisory writs decisions is 18 discretionary. Thus, any prior ‘determination’ in a request for a supervisory writ is 19 not necessarily binding on a subsequent appeal.” Armstrong Airport Concessions v. 20 K-Squared Rest., LLC, 2015-0375, p. 8 (La.App. 4 Cir. 10/28/15), 178 So.3d 1094, 21 1100 (quoting Lake Air Capital II, LLC v. Perera, 2015-0037, pp. 7-8 (La.App. 4 22 Cir. 5/13/15), 172 So.3d 84, 88). Additionally, “the denial of a writ has no 23 precedential value.” Lake Air Capital II, LLC, 2015-0037, p. 7, 172 So.3d at 88. 24 “Generally, the denial of supervisory writs does not bar a different conclusion or 25 reconsideration of the same issue argued in the writ application when an appeal is

1 taken from a final judgment.” Lake Air Capital II, LLC, 2015-0037, p. 8, 172 So.3d 2 at 88. The denial of a writ application is “nothing more than the appellate court 3 declining to exercise its supervisory jurisdiction.” Johnson v. Mike Anderson’s 4 Seafood, Inc., 2013-0379, p. 5 (La.App. 4 Cir. 6/11/14), 144 So.3d 125, 130. Based 5 upon our established jurisprudence, we conclude that this Court’s denial of 6 defendants’ previous writ application does not prohibit reconsideration of the 7 issues raised in the re-urged motion for summary judgment. As such, we find the 8 law of the case doctrine inapplicable. 9 Unreasonable Risk of Harm 10 In opposing defendants’ summary judgment, Mr. Guilbeaux solely relies on 11 La. R.S. 9:2800.6, the Merchant Liability Statute.11 Under La. R.S. 9:2800.6, Mr. 12 Guilbeaux asserts that he is required to prove the deviation in the expansion joint 13 created an unreasonable risk of harm. He further asserts that pursuant to La. R.S. 14 9:2800.6 he is only required to prove notice if he cannot establish that defendants 15 created the condition. 16 La. R.S. 9:2800.6(C)(2) defines a merchant as “one whose business is to sell 17 goods, foods, wares, or merchandise at a fixed place of business.” This Court has 18 found that the Merchant Liability Statute applies to slip and fall accidents which 19 occur in parking lots. Davis v. Cheema, Inc., 2014-1316, p. 7 (La.App. 4 Cir. 20 5/22/15), 171 So.3d 984, 988 (“We, and [all other] Louisiana circuit courts, have 21 applied the Merchant Liability Statute, in final and summary judgment contexts, to 22 the facts of slip and fall accidents occurring in both merchant and gas station

11 Defendants also assert that Mr. Guilbeaux cannot meet his burden of proof under La. C.C. art. 2317.1. Although plaintiff fails to address the applicability of La. C.C. art. 2317.1, this Court finds La. C.C. art. 2317.1 inapplicable and will not conduct an analysis under this codal article.

1 parking lots.”). As such, we will analyze the facts of this case under La. R.S. 2 9:2800.6.

3 The Merchant Liability Statute, La. R.S. 9:2800.6, provides in pertinent part: 4 5 A. A merchant owes a duty to persons who use his 6 premises to exercise reasonable care to keep his aisles, 7 passageways, and floors in a reasonably safe 8 condition. This duty includes a reasonable effort to 9 keep the premises free of any hazardous conditions 10 which reasonably might give rise to damage. 11 12 B. In a negligence claim brought against a merchant by a 13 person lawfully on the merchant’s premises for 14 damages as a result of an injury, death, or loss 15 sustained because of a fall due to a condition existing 16 in or on a merchant’s premises, the claimant shall 17 have the burden of proving, in addition to all other 18 elements of his cause of action, all of the following: 19 20 (1) The condition presented an unreasonable risk of harm 21 to the claimant and that risk of harm was reasonably 22 foreseeable. 23 (2) The merchant either created or had actual or 24 constructive notice of the condition which caused the 25 damage, prior to the occurrence. 26 (3) The merchant failed to exercise reasonable care. In 27 determining reasonable care, the absence of a written 28 or verbal uniform cleanup or safety procedure is 29 insufficient, alone, to prove failure to exercise 30 reasonable care. 31 32 In addition to the elements under the Merchant Liability Statute, the plaintiff

33 must establish all other elements of his claim. Massery v. Rouse’s Enterprises, 34 L.L.C., 2016-0121, p. 5 (La.App. 4 Cir. 6/29/16), 196 So.3d 757, 761. As a 35 threshold matter, we must first determine whether defendants met their initial 36 burden of proof. Defendants are tasked with establishing whether Mr. Guilbeaux 37 will satisfy the burden of proving the existence of a defect, i.e. that the ramp 38 created an unreasonable risk of harm.

1 In the case sub judice, defendants retained civil engineer Kevin 2 Vanderbrook. Mr. Vanderbrook inspected the ramp at Lakeview Grocery Store and 3 conducted a test pushing the grocery cart over the expansion joint. In his report, 4 Mr. Vanderbrook concluded that the parking lot in front of the grocery store was in 5 fair condition; the depth of the expansion joint was approximately ¾ of an inch 6 where the sealant was missing; it was unlikely that the deviation in the expansion 7 joint would cause a grocery cart to become lodged in the expansion joint; and the 8 expansion joint is part of standard parking lot construction and did not create an 9 unreasonably hazardous condition for persons operating grocery carts. “Our 10 jurisprudence has consistently held that small cracks or minor deviations in a 11 sidewalk do not present an unreasonable risk of harm.” Reagan v. Recreation & 12 Park Comm’n for Par. Of E. Baton Rouge, 2015-1662, p. 1 (La. 12/4/15), 184 13 So.3d 668 (citing Chambers v. Village of Moreauville, 2011-0898, pp. 6-7 (La. 14 1/24/12), 85 So.3d 593, 598). A deviation in an expansion joint of ¾ of an inch 15 constitutes a “minor” deviation in the ramp; therefore, it does not present an 16 unreasonable risk of harm. This principle was corroborated by Mr. Vanderbrook’s 17 report. Thus, we find that defendants met their initial burden of establishing that 18 the deviation in the expansion joint did not create an unreasonable risk of harm. 19 The burden now shifts to Mr. Guilbeaux to establish that the deviation in the 20 expansion joint created an unreasonable risk of harm and thus, a genuine issue of 21 material fact exists on that issue. La. C.C.P. art. 966(D)(1). Mr. Guilbeaux retained 22 concrete specialist James Vairin and submitted photographs of the scene to Mr. 23 Vairin for his review. Based on those photographs, Mr. Vairin opined that the 24 deviation in the expansion joint could impede a grocery cart. He further concluded 25 that the deviations “no longer served a useful purpose and need to be cut out and

1 replaced.” However, during his deposition, Mr. Vairin acknowledged that he did 2 not physically inspect the ramp at Lakeview Grocery Store and solely relied on the 3 photographs, not taken by him, as the basis for his opinion. He also conceded that 4 he had no reason to disagree with the findings of Mr. Vanderbrook. Thus, there 5 was no dispute between the findings of Mr. Vanderbrook and Mr. Vairin. Mr. 6 Guilbeaux did not submit any other evidence, or retain any other specialist, to 7 establish that the deviation in the expansion joint created an unreasonable risk of 8 harm. As previously noted, minor deviations in a sidewalk do not present an 9 unreasonable risk of harm. Reagan, 2015-1662, p. 1, 184 So.3d at 668. 10 Additionally, the granting of summary judgment has been applied to similar 11 cases based upon a finding that a minor deviation in an expansion joint does not 12 necessarily create an unreasonable risk of harm. See Id.; Jenkins v. Doucet, 2014-13 0879, p. 1 (La. 6/30/14), 145 So.3d 349, 350. In denying defendants’ first motion 14 for summary judgment, the trial court determined the opportunity for Mr. 15 Guilbeaux to conduct additional discovery was warranted. However, only 16 defendants conducted additional discovery which included retaining Mr. 17 Vanderbrook and deposing Mr. Vairin. Defendants argue that the report by Mr. 18 Vanderbrook and testimony of Mr. Vairin bolstered their assertion that the 19 deviation in the expansion joint did not create an unreasonable risk of harm. Based 20 on the record before this Court, reasonable persons could only reach one 21 conclusion; and there is no need for a trial on whether the deviation in the 22 expansion joint created an unreasonable risk of harm. We find Mr. Guilbeaux has 23 not established that a defect existed in the expansion joint on the ramp. Thus, 24 summary judgment is appropriate as Mr. Guilbeaux cannot meet his burden of 25 proof under La. R.S. 9:2800.6. Having determined that Mr. Guilbeaux has not met

1 his burden of proof in establishing the existence of an unreasonable risk of harm on 2 the ramp, we pretermit further discussion of the remaining elements of La. R.S. 3 9:2800.6. 4 Conclusion 5 Mr. Guilbeaux has not demonstrated that an unreasonable risk of harm 6 existed on the ramp in front of Lakeview Grocery Store. Therefore, we find that as 7 a matter of law, he has failed to raise a genuine issue of material fact which would 8 have precluded the granting of summary judgment. As such, the judgment of the 9 trial court is affirmed. 10 Decree 11 For the foregoing reasons, we affirm the judgment of the trial court granting 12 defendants’ motion for summary judgment. 13 14 15 AFFIRMED