Plaintiff's Claim Against Building Lessor Slips Away Due to Failure Of Building Lessee to Notify Lessor Of Mildew on Sidewalk Where Plaintiff Fell.

Reba Campbell brought a negligence action against the Evangeline Parish Police Jury (building lessor) and the State of Louisiana, Department of Health and Hospitals (building lessee) for injuries she sustained as a result of slipping on a mildewed sidewalk outside of the Evangeline Parish Medicaid Office. The State asserted a cross-claim against the Police Jury, claiming that its lease required the Police Jury to maintain the sidewalks and to indemnify the State for any damages assessed due to the Police Jury's negligence. Campbell filed a petition for declaratory judgment seeking a determination of whether the Police Jury would be responsible for damages pursuant to the indemnity provision.

The trial court determined that although the lease required the Police Jury to maintain the building and to correct any problems with the building once State employees reported them to the Police Jury, the State had not notified the Police Jury about the problem with the sidewalk. Therefore, the trial court held that the State was solely responsible for the plaintiff’s injuries because it did not take sufficient steps to insure the safety of its patrons. The State appealed, arguing that the trial court erred in interpreting the lease provisions to require that the State identify dangerous conditions and notify the Police Jury about them for repair.

The Louisiana Third Circuit Court of Appeal observed that in addition to requiring the State to identify dangerous conditions and notify the Police Jury about them for repair, the lease also rendered the Police Jury responsible for any damages resulting from its negligence in properly maintaining the premises. Therefore, the Third Circuit reasoned that the heart of the dispute was whether the Police Jury had activated the indemnification clause of the lease through negligent maintenance of the building. In addressing the liability of both the Police Jury and the State, the Third Circuit looked to Louisiana Revised Statute 9:2800 (pdf) andCivil Code article 2317 (pdf). Together, those provisions provide that a public entity is responsible for damages caused by a thing if (1) the public entity had custody or ownership of the defective thing, (2) the defect created an unreasonable risk of harm, (3) the public entity had actual or constructive notice of the defect, and (4) the public entity failed to take corrective action within a reasonable time.

The Third Circuit agreed with the trial court’s determination that Campbell had satisfied these elements with regard to her claim against the State but not with regard to her claim against the Police Jury. The Third Circuit determined that the State had not notified the Police Jury about the defective portion of the sidewalk. As a result, the Third Circuit found that the notice requirement of La.R.S. 9:2800 was not satisfied and the indemnity provision of the lease was inapplicable.

Take-Away: According to Louisiana law, a public entity can only be held liable for a defective building that it has in its custody or control if the entity has notice of the defect.

This article was co-authored by Mike Boyd, a summer associate at Irwin Fritchie Urquhart & Moore LLC.

Give Them One and One-Half to Three Inches and They'll Take a Mile

Plaintiff, Paul Broussard (“Broussard”), a UPS delivery driver, sustained a serious back injury while maneuvering a loaded dolly into one of the misaligned elevators in the Wooddale Tower, a twelve-story, State-owned office building located in Baton Rouge. 

Broussard filed suit against the State alleging that the State was negligent in failing to properly maintain and adequately repair a defective thing within its custody and care, thereby creating an unreasonable risk of harm. The jury returned a verdict in favor of Broussard, specifically finding 1) the offset between the elevator and lobby floors created an unreasonable risk of harm, 2) the State had a reasonable opportunity to remedy the defect but failed to do so, and 3) the defect was the proximate cause of Broussard’s injuries. The jury apportioned 38% fault to Broussard and the remaining 62% to the State and awarded Broussard $1,589,890.23 in damages. Once Broussard’s damages were reduced in proportion to his assigned percentage of fault, the trial court rendered a judgment in the amount of $985,732.56.

The State appealed, Broussard v. State ex. rel. Office of State Bldgs. The Court of Appeal reversed, finding that the jury’s determination that the offset created an unreasonable risk of harm was manifestly erroneous. Applying the four-prong, risk-utility balancing test articulated by the Louisiana Supreme Court in Pryor v. Iberia Parish School Board, the Court of Appeal found that the elevator’s social utility outweighed the risk created by its defective, yet readily apparent condition. First, the towers elevators serve an extremely useful, maybe even indispensible, societal function. Second, the defect was open and obvious, thus not presenting a serious risk of harm; further Broussard admitted he was probably aware of the offset when he pulled the dolly into the elevator. Third, Broussard could have avoided injury by either dividing the boxes of paper into multiple, lighter loads or waiting for another elevator. Lastly, there was no record of the elevator’s defective condition causing any injuries in the past. The Court of Appeal found there was no reasonable basis to support the jury’s verdict, concluding the jury was manifestly erroneous in finding an unreasonable risk of harm.

In a per curiam opinion, the Louisiana Supreme Court reversed the Court of Appeal, finding the jury’s unreasonable risk of harm determination not manifestly erroneous, that the record contained a reasonable factual basis to support the jury’s finding that a one and a half to three inch offset between the floor of the elevator and the floor of the Tower’s lobby presented an unreasonable risk of harm. The Supreme Court further found a reasonable factual basis existed to support a finding that the elevator’s defective condition was not an open and obvious hazard, as the defect was not readily apparent to all who encountered it. The Supreme Court held that the State, therefore, breached its duty of care by failing to remedy the defect or warn of its existence until the defect could be remedied. Thus, the judgment of the trial court was reinstated rendered in conformity with the jury’s verdict.

Take-Away: While a defendant only has a duty to protect against unreasonable risks that are not obvious or apparent, the fact finder, employing a risk-utility balancing test, determines which risks are unreasonable and whether those risks pose an open and obvious hazard. Thus, the fact finder determines whether a defendant has breached a duty to keep its property in a reasonably safe condition by failing to discover, prevent or warn of a defect that presents an unreasonable risk of harm.

This article was co-authored by Edie Cagnolatti, counsel with Irwin Fritchie Urquhart & Moore LLC. 

Building Code Violations not enough to Sink City in Premises Liability Suit

George Handy, a then out-of-work diesel mechanic, visited the Second Harvest Food Bank in Jefferson Parish on February 14, 2005 to get some provisions. While attempting to leave the building housing the food bank, he struck his head on the bottom portion of a stairwell, allegedly sustaining injuries to his head and neck. The clearance beneath the stairwell was only 6 feet, which was in violation of the applicable building codes. Mr. Handy sued the City of Kenner, the alleged owner of the building, and others for his personal injuries and claimed liability based on negligence and/or strict liability. Following a judge trial in the 24th Judicial District Court for the Parish of Jefferson, Judge Cornelius E. Regan rendered a judgment in favor of the City and found that the stairwell was an open and obvious condition that did not present an unreasonable risk of harm. Mr. Handy appealed, arguing that the trial court erred in failing to find that the stairwell posed an unreasonable risk of harm.

The Louisiana Fifth Circuit Court of Appeal affirmed the trial court’s decision in Handy v. City of Kenner.  In reaching its decision, the court focused on whether the trial court erred in finding that the stairwell was not defective or an unreasonable risk of harm. It explained that resolution of the issue required a court to conduct a risk-utility balancing test and consider the following factors: (1) the utility of the thing; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs’ activities in terms of its social utility, or whether it is dangerous by nature. In addition, the Court recognized that there can be no liability where the injury results from a condition that should have been observed by an individual in the exercise of reasonable care, or that was as obvious to a visitor as it was to the landowner. 

The evidence supporting the plaintiff’s claims included a stipulation that the clearance of the stairwell was insufficient and in violation of the building codes in existence when the structure was built, and the plaintiff’s testimony that the stairwell “looked like an illusion” and that he thought he’d be able to pass underneath it without a problem. Conversely, several pieces of evidence supported the City’s position. First, a friend of the plaintiff testified that she had passed underneath the stairwell several times without problems and that nothing about the stairwell was hidden. The City’s assistant director of the public works department testified that he inspected the stairwell area following the accident and that there was nothing about it that was difficult to see. The supervisor for the food bank testified that the stairwell was not hidden or difficult to see, and she testified that she had not recorded any previous complaints about the stairwell. The record also contained several photographs of the exit area taken after the accident.     

Based on the evidence, the Court of Appeals found that the trial court was not clearly wrong in finding that the stairwell was open and obvious and did not present an unreasonable risk of harm. The Court was particularly swayed by the photographs of the stairwell and the testimony of the people who were familiar with the accident scene.

Take-Away: Violation of building codes does not, in and of itself, create liability on the part of a property owner. Rather, where the allegedly defective condition is open and obvious and does not create an unreasonable risk of harm, a property owner may be entitled to judgment in his favor even where the condition was in violation of the applicable building code.

This article was co-authored by Chris Irwin, an associate at Irwin Fritchie Urquhart & Moore LLC

Butter and Jelly on Cafeteria Floor Alone Does Not A Claim Against a Public Entity Make

While his daughter was undergoing surgery at East Jefferson General Hospital, Michael Carreras and his wife, Julie, went to the hospital cafeteria for breakfast. After stopping at the beverage station, Mr. Carreras headed toward the cashier when he slipped on some butter and jelly on the floor and fell. Mr. and Mrs. Carreras filed a lawsuit against the hospital - Carreras v. Jefferson Parish Hosp. Service Dist. No. 2, No. 11-1163  asserting both negligence and strict liability theories of liability.

The existence of butter and jelly on the cafeteria floor and the fact that Mr. Carreras had fallen were uncontested. The proceeding was bifurcated, and the trial judge tried the issue of liability. She entered a judgment in favor of the hospital, to which the plaintiffs appealed. 

In its analysis, the Fifth Circuit confirmed that the applicable statute in a premises liability action against a public entity is La. R. S. 9:2800 (pdf), which requires the plaintiff to show (1) that the public entity had actual or constructive notice of the vice or defect of a thing within its care and custody and (2) that the public entity had reasonable opportunity to remedy the defect, but failed to do so.

Plaintiffs argued that notwithstanding the application of La. R.S. 9:2800 to their strict liability claim, their negligence claim only requires that they show that a fall occurred and that injury resulted from a foreign substance on the premises. Plaintiffs further argued that once they made that showing, the burden shifted to the public entity defendant to absolve the presumption of negligence. The Louisiana Fifth Circuit disagreed, however, and held that under either theory of liability (i.e., negligence or strict liability), the plaintiff must show that the public entity either had actual or constructive notice of the foreign substance on the floor.

Because the judgment was based on a factual determination as to whether the hospital had actual or constructive notice of the butter and jelly on the floor, the Louisiana Fifth Circuit applied the manifest error standard of review and affirmed the judgment of the trial court. In doing so, the court found that plaintiff presented no evidence demonstrating that the hospital had actual knowledge of the butter and jelly on the floor of the cafeteria, and there was ample testimony “to support the ultimate conclusion that condition had not existed for such a time that the hospital must have known of the problem and failed to correct it.”

Take-Away: In claims against a public entity, whether sounding in negligence or strict liability, the plaintiff has the burden of establishing that the entity had actual or constructive notice of the alleged vice or defect.

This article was co-authored by Lizzi Richard, an associate at Irwin Fritchie Urquhart & Moore LLC.

Path to Summary Judgment Remains Clear Despite Slippery Substance on Pathway

While riding his bicycle through a tunnel on the Tammany Trace recreational trail in Mandeville, Louisiana, the plaintiff, John Souza (“Souza”), encountered a slippery substance covering the pathway. When he rode over the substance, his bicycle slid, causing him to fall onto the paved trail. As a result of the fall, Souza allegedly sustained a detached bicep tendon that required surgery.

Souza filed suit against the City of Mandeville (“the City”) alleging that the tunnel constituted an unreasonably dangerous condition about which the City had actual or constructive knowledge. Souza also asserted that the City’s failure to warn the public of the tunnel’s slippery surface was willful and malicious, rendering it liable for his injuries. In response, the City filed a motion for summary judgment on the grounds that it was immune from liability under La. R.S. 9:2795 (pdf), which grants limited immunity from liability to the owner of land that is dedicated for recreational use. The City argued that Souza could not satisfy his burden of proof under this statute because there was no evidence that the City had actual or constructive notice of the alleged unreasonably dangerous condition prior to the accident. The trial court agreed and granted the City’s summary judgment motion on those grounds, following which Souza filed an appeal, Souza v. St. Tammany Parish.

In its de novo review of the record the appellate court found that the accident took place on recreational land controlled by the City and Souza’s claim, therefore, was governed by La. R.S. 9:2795. The court explained that a person making a claim under this statute must establish that:  (1) the City owned or had custody of the tunnel; (2) the tunnel was defective in that it created an unreasonable risk of harm to others; (3) the City had actual or constructive knowledge of the defect or risk of harm and failed to take corrective action within a reasonable time; and (4) the defective condition caused the person’s injuries. 

The City filed a motion for summary judgment on the ground there was no evidence that the City had “actual or constructive knowledge of the defect or risk of harm.” In support of this position, the City relied on the deposition testimony of Souza and the City’s Building and Grounds Superintendent (“City Witness”). In his deposition, Souza admitted that he was an experienced cyclist who had ridden through the tunnel many times prior to the accident without incident, and without ever noticing anything slippery coating the surface. The City Witness testified that Parish employees patrolled the path every day, and work crews checked the tunnel each week for trash and maintenance issues. And, the City had not received a complaint about anything slippery on the tunnel surface immediately prior to the accident. 

After finding that the City established that Souza lacked factual support for an essential element of his claim, the court focused on the issue of whether the City had actual or constructive knowledge of the alleged unreasonably dangerous condition in the tunnel. In support of his claims, Souza produced three work orders issued by the City a month before the accident that addressed water around the tunnel and one work order issued by the City a year before the accident regarding a cyclist’s report that the tunnel was slippery. Souza argued that this evidence showed that the City had at least constructive knowledge of the tunnel’s unreasonably dangerous condition prior to his accident, and that the City willfully and maliciously failed to warn tunnel users of the dangerous condition. The appellate court disagreed and concluded that Souza’s evidence merely demonstrated that in the past the City responded in a timely manner whenever it was alerted to a potentially dangerous condition; the evidence did not demonstrate that the City was willful or malicious in its failure to warn of the tunnel’s dangerous condition. 

Take-Away:  Although a landowner who dedicates his land to the public for a recreational purpose enjoys limited immunity from liability, the immunity is not absolute. It therefore is essential for the landowner to regularly inspect and maintain the land and respond promptly to any complaints or alerts brought to his attention regarding potentially dangerous conditions.

This article was co-authored by Jon Phelps, an associate at Irwin Fritchie Urquhart & Moore LLC.

Hitting a Wall: Building Owner Not Liable for Falling Portable Office Wall

Willie Jolliff was allegedly injured when a portable office wall fell on him inside the New Orleans IRS office. As a result of his injuries, he filed suit against the owner of the office building and the United States, Jolliff v. United States.  After filing their respective answers to Mr. Jolliff’s suit, both the building owner and the government filed motions seeking dismissal of the lawsuit.

The building owner sought to dismiss Mr. Jolliff’s claims on the basis that it could not be liable under Louisiana’s premises liability statutes, Louisiana Civil Code articles 2317 (pdf) and 2317.1 (pdf), which apply to custodians or owners of things that cause damage to others; article 2322 (pdf), which applies to owners of buildings that cause damage due to their ruin; and article 2315 (pdf), which sets forth the law of general negligence. The building owner argued that it had neither custody nor control over the portable wall because it did not buy, supply, maintain, repair, or monitor the wall in its capacity as lessor of the building. It also argued that it had no responsibility or duty with respect to the wall because it was modular office furniture and was not actually part of the building. The court agreed and dismissed the building owner from the case, noting that Mr. Jolliff did not dispute that the owner had no responsibility for the portable wall, presented no evidence proving that it had custody over the wall, and presented no evidence that it had a duty to maintain the wall.

Likewise, the government filed dismissal motions against Mr. Jolliff. The government’s primary argument was that Mr. Jolliff did not state a viable claim against it based on the Federal Tort Claims Act (“FTCA”), the statute that permits claims against the United States for damage caused by acts or omissions of federal government employees. The court disagreed with the government’s contention that the FTCA barred Mr. Jolliff’s claims. However, it held that Mr. Jolliff failed to state a valid claim for relief under Louisiana law, because he did not claim or prove that any IRS employees knew or should have known about the dangerous condition posed by the portable wall. And he could not establish that they had actual or constructive knowledge of that risk, as required to support his premises liability and negligence claims under Civil Code articles 2317, 2317.1, and 2322. The court therefore dismissed Mr. Jolliff’s claims against the United States.

Take-Away: The owner of a building may not be held liable for injuries caused by temporary or portable furniture that is not part of the building itself and that is not supplied, maintained, or monitored by the building owner. Additionally, while a plaintiff may pursue a premises liability claim against the United States under the Federal Tort Claims Act, the claim will be governed by the same Louisiana law applied to private persons or entities.

This article was co-authored by Ali Spindler, an associate at Irwin Fritchie Urquhart & Moore LLC

Wet Paint! City Has a Duty To Adequately Warn Pedestrians Of Dangerous Conditions in Public Walkways

Mary Daigle, an employee of the Caddo Parish District Attorney’s Office, left her office at the Courthouse in downtown Shreveport to meet some friends for lunch. The City of Shreveport had recently painted the curbs lining the street where she exited and the paint was still wet. When Daigle stepped onto the curb, she slipped, fell, and severely aggravated a preexisting injury to her back. According to the City, the wet curbs were marked with cones warning of “Wet Paint.” Daigle maintains that the only cone placed in the vicinity at the time of the incident was located at the end of the block; she did not see it until after she fell.

Daigle filed suit against the City for her injuries related to the slip and fall. A bench trial was held and the court ruled in Ms. Daigle’s favor, awarding her damages for past medical expenses in the amount of $10,815.70, future medical expenses in the amount of $452,686.00, loss of enjoyment of life in the amount of $200,000.00, pain and suffering in the amount of $400,000.00, as well as the costs of court. The City of Shreveport appealed the judgment to the Louisiana Second Circuit Court of Appeal

Proof of liability on the part of a public entity is governed by La. Civil Code art. 2317 (pdf), as modified by La. R.S. 9:2800 (pdf). La. Civil Code art. 2317 provides in pertinent part, “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 things which we have in our custody[.]” Louisiana R.S. 9:2800(B) provides in pertinent part,

... [N]o person shall have a cause of action based solely upon the liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

Because the curb was painted by its employees, the City clearly had knowledge of the vice or defect at issue and had reasonable opportunity to remedy the defect; there even existed a specific procedure for the placement of warning cones when painting a curb. The Second Circuit held that the City has a duty to maintain its public walkways in a safe condition for use, and that the City must warn of a dangerous condition. This warning must be sufficient to alert an ordinary pedestrian, considering all circumstances.  The issue before the Second Circuit was whether the City breached its duty by failing to adequately warn pedestrians of the danger it created by the wet paint on the curbs. The trial testimony indicated that cones were not placed near the accident site at the time of Daigle’s fall. The Second Circuit found that the trial court did not err in finding that the City failed to adequately warn of the danger it created by painting the curbs and affirmed the finding of liability.

The Second Circuit affirmed the award of damages, though it noted that the award of general damages for loss of enjoyment of life and pain and suffering was admittedly high.  The matter was remanded to the trial court, however, to comply with certain statutes that bear on the award of damages against the City. Specifically, Louisiana R.S. 13:5106(B)(1) (pdf) places a cap of $500,000.00 on general damages in a personal injury case against the state and its political subdivisions, including a city. Additionally, if future medical expenses are awarded, La. R.S. 13:5106B(3)(a) (pdf) provides that the trial court must establish a reversionary trust for the benefit of the claimant, out of which all future medical expenses are to be paid. The statute also regulates the procedure for such a trust. In addition, La. R.S. 13:5112(A) (pdf) requires the trial court to specify a dollar amount of court costs when awarded against the state or political subdivisions.

Take-Away: A City’s duty to warn pedestrians of a dangerous condition created by maintenance of its sidewalks is not satisfied by simply offering evidence that some type of warning was given; the warning must be sufficient to alert an ordinary pedestrian. 

This article was co-authored by Kelly Juneau, an associate at Irwin Fritchie Urquhart & Moore LLC.

Never Mind: Louisiana Supreme Court Dismisses All Claims Against Village For Injuries Allegedly Caused By Deviation In Sidewalk After Appellate Court Had Found That Fault Of All Parties Should Be Determined At Trial

Arlene Chambers tripped on a deviation in a sidewalk and fell after leaving a co-worker’s funeral with a friend in Moreauville, Louisiana. As a result of the accident, Ms. Chambers suffered a fracture of the radius of her right arm, which required surgery. Ms. Chambers filed a lawsuit against the Village of Moreauville, which ultimately was considered by the Louisiana Supreme Court —Chambers v. Village of Moreauville.  We previously wrote about the appellate court decision here http://www.louisianapremisesliabilitylaw.com/2011/09/articles/public-facilities/tomb-it-may-concern-comparative-fault-nixes-100-liability-for-unreasonable-risk-of-harm/

After the bench trial, the court held that the Village of Moreauville was 100% at fault and awarded damages to Ms. Chambers for past and future pain and suffering, hedonic damages, future wage loss, past medical expenses, future medical expenses, and past wage loss. The Village appealed. On appeal, the Third Circuit held that although there was a reasonable basis for the trial court’s conclusion that the sidewalk presented an unreasonable risk of harm, the record did not reasonably support a finding that Ms. Chambers was entirely free from fault and her fault should be considered at trial. The Third Circuit also held that the award of future lost wages was too speculative and was therefore manifestly erroneous, but affirmed the other damage awards. The Louisiana Supreme Court subsequently granted a writ to determine whether the Village of Moreauville breached its duty to keep its sidewalk in a reasonably safe condition.

At the outset of its opinion, the Court stated that, although an appellate court may not set aside a court’s finding of fact unless it is “manifest error” or “clearly wrong,” the manifest error standard of review is inapplicable when a trial court commits legal error. In this case, the Court explained, the trial court applied incorrect principles of law in determining whether the deviation in the sidewalk created an unreasonable risk of harm. Specifically, the trial court did not consider the issue of cost—a necessary component of the risk-utility balancing test that is used to determine whether a condition is unreasonably dangerous. Because of this deficiency, the Court conducted an independent de novo review of the record to determine whether the sidewalk presented an unreasonable risk of harm.

The risk-utility balancing test requires balancing the gravity and risk of the harm against the individual and societal utility and the cost and feasibility of repair. Considering the prior case law on the subject and all of the facts, the Court noted that the deviation in the sidewalk was relatively small, there had been no reported complaints in the forty years that the deviation had existed, and that the utility of the sidewalk was high. Finally, the Court addressed the issue of cost, which was not addressed by the trial court. The court found that the cost factor weighed heavily in favor of finding that the deviation did not create an unreasonable risk of harm. It reasoned that, although it may have been fiscally possible for the Village to fix the deviation in question, the cost of fixing all of the deviations like it would be out of proportion to the gain in correcting them. Accordingly, the Court reversed the lower courts and found that the deviation in the sidewalk did not present an unreasonable risk of harm and therefore the Village was not at fault.

Take-Away: In determining whether a public entity can be found at fault for a defect in its property, the gravity and risk of the harm must be balanced against the utility of the thing and the cost and feasibility of repair.

Tomb It May Concern: Comparative Fault Nixes 100% Liability For Unreasonable Risk Of Harm

While leaving a co-worker’s funeral with a friend in Moreauville, Louisiana, Arlene Chambers tripped on a section of sidewalk and fell. As a result of the accident, Ms. Chambers suffered a fracture of the radius of her right arm, which required surgery. Although the surgery and subsequent physical therapy were successful, Ms. Chambers later experienced problems with her both her right and left shoulders, which she attributed to the fall due to prolonged immobility of her wrist. Ms. Chambers ultimately filed a lawsuit against the Village of Moreauville —Chambers v. Village of Moreauville.

At the trial court level, the plaintiff called a number of experts to testify, including experts in the fields of civil engineering, economics, and vocational rehabilitation. After the bench trial, the court held that the Village of Moreauville was 100% at fault and awarded damages to Ms. Chambers for past and future pain and suffering, hedonic damages, future wage loss, past medical expenses, future medical expenses, and past wage loss. The Village appealed.

On appeal, the third circuit first addressed the issue of comparative fault. It noted that pedestrians are obligated to observe their path and remain mindful that every sidewalk contains irregularities. Furthermore, it noted that a condition that is “obvious” and “easily avoidable” cannot be considered to present an unreasonable risk of harm, which is a key element in any premises liability case. The court held that although there was a reasonable basis for the trial court’s conclusion that the sidewalk presented an unreasonable risk of harm, the record did not reasonably support a finding that Ms. Chambers was entirely free from fault. In particular, the court noted Ms. Chambers’ testimony that her attention was diverted at the time of the fall due to a conversation with a friend. Thus, the appellate court allocated 10% of the fault to Ms. Chambers and 90% of the fault to the Village.

Next, the court addressed whether the trial court was manifestly erroneous in its award of damages for future wage loss and future medical expenses. With regard to the award of future lost wages, the third circuit held that there was no evidence in the record that Ms. Chambers more probably than not would lose her job due to her injuries. Thus, it held that the award of future lost wages was too speculative and was therefore manifestly erroneous. On the issue of future medical expenses, the court held that, based on the history of Ms. Chambers’ treatment and the costs associated with that treatment, the trial court’s award of $10,000 was reasonable and therefore not manifestly erroneous.

Finally, the appellate court addressed whether the trial court had abused its discretion in awarding Ms. Chambers general and hedonic damages, which consisted of $200,000 for past and future pain and suffering and $25,000 for loss of enjoyment of life. The third circuit analyzed these awards separately. With regard to the award of general damages for past and future pain and suffering, it held that, based on Ms. Chambers’ initial and subsequent injuries resulting from the fall, the award was reasonable. The third circuit also held that Ms. Chambers’ injuries had negatively impacted the activities that she enjoyed outside of her employment and, as such, the trial court did not abuse its discretion in its award of hedonic damages.

Take-Away: Even if a condition presents an unreasonable risk of harm, courts are willing to assess a portion of fault to a plaintiff for not exercising “ordinary care.” So, property owners should always be mindful of the potential defense of comparative fault on the part of a plaintiff.

This article was co-authored by Kelly E. Brilleaux, an associate at Irwin Fritchie Urquhart & Moore LLC

Steppin On A Crack May Break Your Mother's Back But It Will Not Break The Municipality's Bank.

On the morning of June 15, 2005, Ms. Enola Wiltz and her husband brought their son to City Hall in Breaux Bridge, Louisiana to renew the son’s driver’s license. As Mrs. Wiltz was walking to the building, she stumbled, but did not fall, over a beveled crack in the sidewalk. As a result of the stumble, Mrs. Wiltz allegedly sustained leg and back injuries and incurred approximately $100,000 in medical expenses. Mr. and Mrs. Wiltz subsequently filed suit against the City of Breaux Bridge and its insurer. 

Following a bench trial, the judge ruled that the Wiltzes failed to prove their case because they did not submit sufficient evidence that the crack in the sidewalk posed an unreasonable risk of harm. Furthermore, there was no evidence to demonstrate that the City knew or should have known about the crack in the sidewalk prior to the accident. The Wiltzes then appealed the trial court’s judgment, contending that it was clearly wrong in failing to find that “a beveled cracked sidewalk, covered and disguised by grass growth on a major sidewalk leading directly into the main organ of commerce for the City causing plaintiff’s accident and injuries did not create an unreasonable risk of harm.”

Under Louisiana Revised Statutes 9:2800 (pdf), Louisiana’s Public Entity Liability Statute, in order to prevail at trial, the Wiltzes had to prove that (1) the City owned or had custody of the sidewalk; (2) the sidewalk was defective in that it created an unreasonable risk of harm to others; (3) the City had actual or constructive knowledge of the defect and failed to take corrective action within a reasonable time; and (4) Mrs. Wiltz’s injuries were caused by the defect. The only issues before the appellate court were elements 2 and 3, i.e. whether the sidewalk was defective and the knowledge (actual or constructive) of the city about the crack. In a unanimous decision, the Third Circuit, in the case Wiltz v. ABC Ins. Co., affirmed the ruling of the trial court.

As a preliminary matter, the court noted that under LSA-R.S. 9:2800 a municipality is not required to maintain its sidewalks in perfect condition. Rather, plaintiffs had the burden of proving that that the sidewalk at issue was not maintained in a reasonably safe condition for persons exercising ordinary care and prudence. In making this determination, all relevant moral, economic, and social considerations must be weighed. In affirming the trial court’s conclusion that the sidewalk did not pose an unreasonable risk of harm, the appellate court relied on several factors. First, courts in two earlier cases found that larger cracks did not pose unreasonable risks of harm. Second, there was no evidence that anyone had complained about the crack before the accident. To the contrary, two public officials, including the mayor, testified that they had no knowledge of prior complaints about and/or injuries involving the crack. Finally, the vegetation growing out of the crack didn’t obscure the entire crack, but actually indicated in itself the existence of a crack.

Take-Away: Plaintiffs have a heavy burden in cases against governmental entities to prove that cracks in their sidewalks pose an unreasonable risk of harm. The size of the crack, the degree it is obscured from view and the complaint and injury history related to the defect are all part of the analysis

This article was co-authored by Chris Irwin, an associate at Irwin Fritchie Urquhart & MooreLLC

 

Plaintiff's Claims Lost By Hole In Evidence

While waiting for her child’s school bus to arrive at the intersection of two streets in Farmville, Louisiana, Carol Smithwick stepped off of the sidewalk onto the shoulder of the road. Upon doing so, she stepped in a shallow hole in the ground and injured her ankle. After the accident, Mrs. Smithwick filed a lawsuit against the City of Farmville in Smithwick v. City of Farmville.

Mrs. Smithwick sought to recover damages pursuant to La. R.S. 9:2800 (pdf), which limits the liability of public entities for defective or dangerous premises. In order to prevail, Mrs. Smithwick had to prove the following elements: (1) custody or ownership of the defective thing by the City; (2) that the defect created an unreasonable risk of harm; (3) that the City had knowledge of the defect; (4) that the City failed to take corrective action within a reasonable time; and (5) that the defective thing caused the plaintiff’s injury.

At the trial court level, Mrs. Smithwick was not able to prove one of the essential elements of her claim: that the City had actual or constructive knowledge of the hole that caused her injury. The court dismissed the case, and Mrs. Smithwick appealed.

On appeal, the court addressed the issue of whether the city had either actual or constructive knowledge of the hole. The appellate court defined “actual knowledge” as knowledge of dangerous defects or conditions, and defined “constructive knowledge” as the existence of facts which imply actual knowledge. The court noted that constructive knowledge is ordinarily established when plaintiffs prove that the defect existed over a sufficient length of time that reasonable diligence would have led to its discovery or repair.

Ms. Smithwick first argued that the City had actual knowledge of the hole, as evidenced by the deposition testimony of a city employee who stated that he had observed a hole while trimming the grass in the area. The court pointed out, however, that the employee’s trial testimony clarified that the hole he had noticed was in a different area next to a water line, and thus was not the hole that caused Ms. Smithwick’s injury. Ms. Smithwick also argued that the City had constructive knowledge of the hole. She argued that the city personnel responsible for trimming the grass in that area must have seen the hole prior to the accident. The court reasoned that because no one knew how or when the hole was formed, it was speculative to assume that it even existed when the grass in the area was last trimmed.

After considering all of the facts, the court concluded that there was no evidence that the hole had been noticed or should have been noticed by city employees.   The appellate court ultimately held that the trial court was not clearly wrong in finding that Ms. Smithwick failed to prove that the City of Farmville had actual or constructive knowledge of the hole. Accordingly, Ms. Smithwick could not recover damages from the City of Farmville.

Take-Away:  Although a person may be injured by a defect on public property, that person will not be able to recover if there is no evidence that the public entity had knowledge or constructive knowledge of the harmful defect’s existence.

This article was co-authored by Kelly Brilleaux, an associate at Irwin Fritchie Urquhart & Moore LLC.

Plaintiff's Claims Slip Away, After Business Owner Dispels Negligence

On her way to visit her mother at Baton Rouge General Medical Center, Marion Terrance stopped by the hospital cafeteria at for a cup of ice. Ms. Terrance slipped and allegedly fell, when she stepped off of a mat in front of the ice machine. She told hospital cafeteria employees about her fall and advised that the mat was saturated with water and the ice machine was leaking. After visiting with her mother for ten to twenty minutes, Ms. Terrance returned to the cafeteria to speak with a supervisor about her injury. Eventually, Ms. Terrance filed a lawsuit against the hospital – Terrance v. Baton Rouge Gen. Med. Ctr.

The hospital cafeteria supervisor, Margie Akins, testified that she did not see Ms. Terrance fall. Ms. Akins was informed of the incident by cafeteria employees, who told her that Ms. Terrance slipped but did not fall. In response, Ms. Akins immediately checked the area around the ice machine and under the mat and did not see any liquid or ice. Ms. Akins testified that she routinely performed floor checks in the cafeteria every ten to fifteen minutes. On the day of the incident, she had worked in the cafeteria all day and had done a floor check not long before Ms. Terrance slipped. Ms. Akins and the other cafeteria employees testified that they had never seen the ice machine leak, nor had they seen anyone fall by the ice machine.

After a bench trial, the trial court rendered judgment in favor of Ms. Terrance, finding that an unreasonable condition existed at the area around the ice machine and that this unreasonable condition caused her slip and fall. The hospital appealed to the First Circuit Court of Appeals. On appeal, the hospital argued that there was no evidence that it created or had actual knowledge of the foreign substance on the floor. The hospital also asserted that there was no evidence of the amount of time the unreasonably dangerous condition existed.

The appellate court concluded that La. Rev. Stat. § 9:2800.6 (pdf) did not apply and that the hospital’s duty must be analyzed under a standard negligence theory of liability. Under this standard, Ms. Terrance had to show that she slipped, fell, and was injured because of a foreign substance on the hospital’s premises. The burden then shifted to the hospital to show that it acted reasonably to discover and correct the dangerous condition.

Although the appellate court seemed to disagree with the trial court’s finding that Ms. Terrance slipped and actually fell, it could not reverse the trial court’s determinations of credibility and reasonable inferences of fact. The appellate court, however, found that the trial court erred in failing to consider whether the hospital could exculpate itself from the presumption of negligence by showing that it did not act negligently in causing the slip and fall. Reviewing the record, the appellate court found ample evidence that the hospital acted reasonably prior to the accident and in response to Ms. Terrance’s report of water on the floor. The hospital cafeteria supervisor routinely performed floor checks for spills every ten to fifteen minutes; the hospital cafeteria had a regular schedule for cleaning and mopping cafeteria floors; and, after receiving notification of a spill, it was immediately cleaned up. Therefore, regardless, of whether Mr. Terrance actually fell, the fall was not caused by the hospital’s negligence and the judgment of the trial court was reversed.

Take-Away: Liability for a slip and fall may be avoided by strong policies, including regular monitoring for and immediate response to dangerous conditions.

This article was co-authored by Cami Capodice, and associate at Irwin Fritchie Urquhart & Moore LLC

Jaywalking Can be Very Expensive - for the City of New Orleans

Diana Murphy was jaywalking across Decatur Street in New Orleans when she tripped over a mound of pushed up asphalt and fell, injuring her right knee and leg (a tibia plateau fracture), which required two surgeries and physical therapy. Mrs. Murphy and her husband filed suit against the City of New Orleans alleging strict liability and negligence in the matter Murphy v. City of New Orleans. The district court found the City 100% at fault and awarded damages in the amount of $999,173.99 broken down as follows: (1) past medical expenses, $314,302.66; (2) future medical expenses, $15,000.00, (3) past lost wages, $169,871.33, and (4) general damages, $500,000.00. The award would have been higher, but Louisiana law imposes a $500,000.00 statutory cap (pdf)  on general damages against the State and its political subdivisions.

The City appealed, in part, on the ground that plaintiffs failed to carry their burden of proof on each element required to establish negligence and strict liability against a public entity.  The Court of Appeal noted that in order to prevail on a negligence or strict liability claim against a public entity a plaintiff must prove that: (1) the City had custody or ownership of the defective thing; (2) the defect created the unreasonable risk of harm; (3) the City had actual or constructive notice of the defect and failed to take corrective action within a reasonable time; and (4) causation. LSA-R.S. 9:2800. A failure to prove any element will bar recovery. The City argued that the elevated pavement did not pose an unreasonable risk of harm to a pedestrian and the City did not have knowledge of the condition. More specifically, the City argued that the defect in the pavement was obvious and that Mrs. Murphy was not paying attention.

The Appellate Court rejected the City’s arguments that the pushed up asphalt did not create an unreasonable risk of harm because it was obviously visible to a pedestrian exercising reasonable care. It based its decision on the facts that: the asphalt rose several inches at its peak and was located away from the curb in the traveled portion of the street; Decatur is a major street in the French Quarter, which is a main attraction in Orleans Parish for tourists who tend to be pedestrians; and, Mrs. Murphy was a tourist who had no familiarity with the area. The Appellate Court was, apparently, unconcerned with the fact that Ms. Murphy was jaywalking at the time of the accident. 

With respect to the City’s knowledge of the defect, the Appellate Court found that the City failed to follow its own written policy that mandated annual visual inspections of all major streets for the six years prior to the accident. Thus, the Court held that the City had constructive knowledge of the defect.  Consequently, the Court affirmed the trial court’s finding that the defect created an unreasonable risk of harm.

Take-Away: A property owner that fails to follow its own property inspection protocol will be charged with knowledge of a defective condition that should have been discovered during inspection.

Fisherman's Decision To Jettison Life Preserver Doesn't Shield State Liability For Drowning

In McManus v. State of Louisiana Dept. of Wildlife and Fisheries, Mrs. McManus, individually and on behalf of her minor children, sued two State of Louisiana agencies for the drowning death of her husband. Mr. McManus drowned when he and a friend were attempting to catch baitfish with cast nets from a boat on a public lake near the base of a damn. The men were wearing life vests for the boat ride to the damn, but removed them after arriving at the damn.   Instead of floating down stream away from the damn, as the men had suspected, the boat was drawn towards the damn and was swamped by water falling over the damn. Mr. McManus drowned; whereas his friend swam to shore. After trial, a jury rendered a verdict in favor of Mrs. McManus and her children, but apportioned 25% of the fault for his drowning to Mr. McManus.

The State appealed on numerous grounds, but the primary arguments were that the state was entitled to “recreational immunity” and that it did not have actual or constructive knowledge of the dangerous condition that required it to correct the condition or warn of the danger. The state relied, in part, on the Louisiana Recreational Use Statutes, La. R.S. § 9:2791 (pdf) and La. R.S. §9:2795 (pdf) and argued that the jury improperly concluded that the State knew about the dangerous condition and failed to timely act to correct the condition or warn of its existence.

La. R.S. § 9:2791 provides, in relevant part, that “An owner . . . owes no duty of care to keep such premises safe for entry or use by others for . . . fishing . . . or boating or to give warning of any hazardous conditions, . . . . whether the hazardous condition . . . is one normally encountered in the true outdoors or one created by the placement of structures or conduct of commercial activities on the premises.” La. R.S. §2791, on the other hand, makes clear that immunity will not apply when a landowner willfully or maliciously fails to warn of a dangerous condition of which it knows and that would not otherwise be open and obvious to the recreational user. The appellate court noted that the Louisiana Recreational Use Statutes do not provide absolute immunity for injuries sustained on recreational lands and facilities. Rather, the immunity is qualified and, whether immunity will attach, is dependent on a case-by-case factual analysis. 

Reviewing the facts in the record, the appellate court determined that the jury did not err in its conclusion that the State knew that there was a probability that a boat coming within a certain distance of the base of a damn could be drawn toward the damn and failed to warn of the danger. The court noted that the State included warnings regarding the dangers presented by damns on one of its websites and directed that, when the danger is known, the State is required to post warning signs or correct the dangerous condition. In addition, an employee of the Department of Wildlife and Fisheries had testified that he had a virtually identical experience at the same damn, but that he was able to don his life jacket to avoid drowning. Moreover, the plaintiffs’ expert provided unrefuted testimony that the danger of being pulled towards a damn was not obvious to the public and would not be obvious from looking at this particular damn. He testified, however, that such knowledge was common within the water resource management community and should have been within the knowledge of the people responsible for maintenance and operation of the damn. Finding actual or constructive knowledge of the danger and adequate time to caution users, the appeals court affirmed the State’s liability.

Take-Away: Whether a dangerous condition on recreational property is open and obvious may not always be clear, but a property owner cannot turn a blind eye to serious incidents on its property and hope to find shelter in the Recreational Immunity Statutes.

Double Doors Bring Double Duty

The case of Cronin v Department of Public Safety reaffirms that whether a defect on a premises poses unreasonable risk of harm turns on the facts of the case.  Mr. Cronin was severely injured at a building owned by the St. Bernard Port, Harbor, and Terminal District (“Port”). The plaintiff attempted to exit a locked double door when his hand slipped off the metal bar that opened the door and his hand went through the door’s glass panel. The door did not have a sign advising that the door was locked. 

After a bench trial, the plaintiff was found to be 100% liable for his injuries. The trial court relied on testimony indicating that the plaintiff was agitated when he was leaving the building and that he forcefully attempted to push the door open. The plaintiff appealed to the Louisiana Fourth Circuit Court of Appeals. 

On appeal, the appellate court applied Louisiana Revised Statute 9:2800 (pdf) and Louisiana Civil Code Article 2317 (pdf), which limits public entity liability to damages caused by conditions of buildings within the entity’s care and custody. Those conditions have to be known to the entity and not timely corrected. According to the record on appeal, a security guard for the Port testified that he reported the door had a problem of “sticking” and that Port maintenance unsuccessfully attempted to fix the door. The Port locked the door after efforts to get it fixed failed. The Port argued that: locking the door did not create an unreasonably dangerous condition, by itself; a door that contains plate glass is not, in itself, unreasonably dangerous; and, a plate glass is not, in itself, unreasonably dangerous. The appellate court agreed. 

The appellate court, however, noted that the door was in an unquestionably high volume passageway for people entering and leaving the building. Furthermore, it was uncontroverted that the door was defective in that it was difficult to open, because it would stick. The court acknowledged that the plaintiff may have been agitated when he left, but that the plaintiff’s fault did not excuse the duty owed by the Port. The Port had a duty to keep visitors safe from a dangerous condition on the premises by either warning the public that the door was defective or repairing the door. The Court stated that “If the door had been locked, there was no sign to warn a person exiting the building. If the door had been left unlocked…, there is ample evidence that the door was heavy and would stick and not open entirely. Either scenario created an unreasonable risk of harm, especially in light of the fact that the door contained plate glass.”  

The appellate court reversed the trial court’s decision and, rather than remand, adjusted the allocation of fault and found the plaintiff ten percent at fault for his injuries. The plaintiff was awarded $523,951.35 plus judicial demand. 

Take-Away: An owner must warn of an unreasonably dangerous condition. Whether a condition creates an unreasonable risk, however, is not a simple task and includes a weighing of all of the facts.

This article was co-authored by Orian Williams, an associate at Irwin Fritchie Urquhart & Moore LLC

Are Cigarette Butts Bad For Your Health?

Although, it is well known that cigarette smoke can be harmful to a person’s health, cigarette butts can also be dangerous.  The question decided by the Louisiana Second Circuit Court of Appeal in Adams v. Louisiana State University Health Sciences Center Shreveport (“LSUHSC”), was whether, as a matter of law, LSUHSC, a public facility, is exempt from responsibility for the damages Sherry Adams sustained when she fell on a wet cigarette butt located on a handicap entrance ramp to the facility. 

On August 9, 2005, Ms. Adams, an off-duty LSUHC employee, slipped and fell when she was going to visit her uncle who was a patient in the hospital. As a result of the fall, Ms. Adams sustained serious injuries to her right hand, fingers, and right ankle. She sued LSUHSC alleging that, at the time of the incident, the ramp was unreasonably dangerous and defective because of the collection of cigarette butts on the ramp.  She further alleged that LSUHSC knew or should have known of the unreasonably dangerous condition or defect associated with the collection of cigarette butts and that the condition could have been prevented if the hospital had exercised reasonable care.

After sufficient discovery, LSUHSC filed a motion for summary judgment, which was granted. The trial court found that: (1) Ms. Adams claims arose under La. C. C. art. 2317 (pdf), which imparts liability upon owners for damages caused by their defective things, and La. R.S. 9:2800 (pdf), Louisiana’s statute limiting liability for public entities arising from public property; (2) Ms. Adams could not meet her burden of proof against LSUHSC; and, (3) the accumulation of cigarette butts did not constituted a defective condition or an unreasonably dangerous condition as contemplated by law. 

On appeal, the Second Circuit reversed and remanded the case to the trial court, holding that the trial court had incorrectly applied Louisiana law regarding a defective condition in property and that Ms. Adams’ claims against LSUHSC were correctly asserted under La.C.C. art. 2315 (pdf), Louisiana’s general tort law. The Second Circuit relied upon its own prior ruling in Holden v. Louisiana State University Medical Center-Shreveport in which it held that La. C.C. art. 2317  and La.R.S. 9:2800 do not apply when a person slips and falls on a foreign substance located on a premises. The court explained that there is a difference between “a defect in the premises” and “a defect on the premises.” Therefore, the court concluded that “the temporary presence of a foreign substance is not, in and of itself, a defect for purposes of strict liability under La. C.C. 2317” and, by extension, La. R.S. 9:2800. Rather, in such cases, the court held that negligence is measured by La. C.C. art. 2315. 

The court also noted that a hospital owes a duty to its visitors to exercise reasonable care to keep its premises in a safe condition commensurate with the particular substance involved but that the standard of care for a hospital is lower than that for a merchant. The Second Circuit held that, because the trial court applied the incorrect law, the trial court failed to consider the relationship between the risk of someone slipping and falling on cigarette butts located on the handicap ramp and the reasonableness of the measures taken by the hospital to eliminate that risk. 

In addition, after conducting a complete review of the trial court summary judgment record, the Court concluded that Ms. Adams had identified material issues of fact that precluded summary judgment. Among the disputed facts was that: (1) LSUHSC had some knowledge of the cigarette butts at the entrance where Ms. Adams fell; (2) someone was supposed to clean the entranceway where Ms. Adams fell; and, (3) the person who cleaned the entrance may not have done it regularly. Moreover, the Court held that the evidence in the record was enough to provide factual support that LSUHSC had actual or constructive notice of the cigarette butts on the ramp. The Court also held that it was a jury’s function, not the court’s, to decide if LSUHSC’s policy for keeping the entrance ramp clean was reasonable. The Court, ultimately, held that LSUHSC failed to carry its initial burden of proving there was no genuine issue of material fact and that it was entitled to judgment as a matter of law.

Take-Away: The Adams case demonstrates that a state run hospital can not rely upon La. R.S. 9:2800 to exempt it from its general duties to keep its premises safe. This case also demonstrates that a hospital cannot prevail on a summary judgment if the plaintiff establishes that the hospital may have had some knowledge of a potentially defective condition or did not have a policy to reasonably rectify a known defective condition.

Slip And Fall Case Goes Down The Drain When Plaintiff Cannot Show Actual Or Constructive Knowledge Of Wet Floor

On a rainy day, Barbara Price entered the Waterworks office to pay her bill. Upon entering, she slipped on water in the lobby and fell injuring her leg and back. In Price v. Waterworks District #1, et al., Mrs. Price sued the Waterworks and the Parish government for her injuries. The defendants filed a motion for summary judgment (pdf), arguing that there was no genuine issue of material fact that would preclude the granting of judgment in their favor. According to the defendants, both sides agreed that: it was raining when Mrs. Price entered the building; the defendants did not have a written inspection policy regarding inspecting the condition of the floors; there was no “wet floor” warning sign placed inside the building; Mrs. Price slipped on water inside the building; and, no one reported water on the floor prior to her slip and fall.  The defendants also argued that Mrs. Price failed to meet her burden under Louisiana public entity premises liability law of establishing that the wet floor was actually or constructively known to the defendants and that they had failed to timely act to correct the dangerous condition (pdf).

The trial court granted the motion for summary judgment and Mrs. Price appealed, arguing that a genuine issue of material fact existed as to the defendants’ actual or constructive knowledge of the wet floor. Mrs. Price claimed that the fact that it was raining and that the defendants did not have an inspection policy for the floors was sufficient to create an issue for trial and avoid summary judgment. The appellate court disagreed, citing Louisiana Supreme Court precedent that the absence of an inspection plan does not suggest that an employee of a public entity has actual knowledge of a dangerous condition. Accordingly, the trial court was correct in holding that defendants’ lack of an inspection policy for the floors did not prevent the granting of the defendants’ motion for summary judgment. The appellate court further noted that Mrs. Price had not shown that the defendants’ had constructive knowledge of the wet floors by pointing to facts that would support an inference that the defendants had actual knowledge of the wet floor.  Therefore, the summary judgment was affirmed. 

Take-Away:  Simply because a plaintiff slips on a wet floor will not impose strict liability on a public entity. Furthermore, unless the plaintiff can make a prima facie showing of the public entity or property owner’s actual or constructive knowledge of the wet floor, Louisiana courts will not hesitate to grant summary judgment in favor of a public entity.