Brittany Cavet v. Abc Insurance Company and Maison St. Charles, L.L.C.

BRITTANY CAVET * NO. 2020-CA-0454

VERSUS *

COURT OF APPEAL

ABC INSURANCE COMPANY *

AND MAISON ST. CHARLES, FOURTH CIRCUIT

L.L.C. *

STATE OF LOUISIANA

*******

APPEAL FROM

CIVIL DISTRICT COURT, ORLEANS PARISH

NO. 2019-09372, DIVISION “J”

Honorable D. Nicole Sheppard

******

Judge Paula A. Brown

******

(Court composed of Chief Judge James F. McKay, III, Judge Joy Cossich Lobrano,

Judge Paula A. Brown)

David P. Vicknair

Hope E. Hughes

SCOTT VICKNAIR HAIR & CHECKI, LLC

909 Poydras Street, Suite 2025

New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLEE

L. David Adams

BRADLEY MURCHIN KELLY & SHEA LLC

1100 Poydras Street Suite 2700

New Orleans, LA 70163

Dennis J. Phayer

BURGLASS & TANKERSLEY, LLC

5213 Airline Drive

Metairie, LA 70001-5602

COUNSEL FOR DEFENDANT/APPELLANT

REVERSED; REMANDED

APRIL 21, 2021

PAB

JFM

JCL

This appeal arises from a confirmation of a default judgment. The district

court confirmed the default in favor of Plaintiff/Appellee, Brittany Cavet and

against Defendant/Appellant, Maison St. Charles, L.L.C. (“Maison St. Charles”),

and awarded Ms. Cavet damages, totaling $1,011,224.98, for personal injuries she

allegedly sustained on October 13, 2018. For the reasons discussed below, we

reverse the district court’s judgment and remand the matter for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 13, 2018, Ms. Cavet suffered injuries when an iron gate (the

“gate”), that secured the valet parking lot used by Maison St. Charles, fell on her as

she attempted to open the gate. Ms. Cavet filed a petition for damages against

Maison St. Charles, on September 26, 2019, alleging she sustained personal

injuries as a result of the negligence of Maison St. Charles.1

1

The petition alleged, in pertinent part:

The accident and resulting injuries sustained by Plaintiff CAVET were

caused solely by the negligence and fault of the defendant [,] MAISON ST.

CHARLES, L.L.C., in the following particulars, among others, which will be

shown at the trial in this matter:

a) Failing to provide a safe environment for others;

b) Failing to warn customers, in particular Plaintiff, of the unsafe

condition, despite having actual and constructive notice of the

defective gate;

1

On December 17, 2019, after failing to perfect service on Maison St.

Charles, Ms. Cavet filed a motion to appoint a special process server, which the

district court granted. Counsel for Ms. Cavet filed an affidavit on February 6,

2020, attesting that the citation and petition were served on Maison St. Charles

through its registered agent, Delinda Dowden.2 No answer was filed on behalf of

Maison St. Charles. Ms. Cavet filed a motion for a preliminary default, which was

granted on February 28, 2020. A hearing to confirm the default judgment was held

on March 4, 2020.

At the hearing, Ms. Cavet testified that she was employed by Maison St.

Charles, a hotel, as a night auditor for about a year, spanning from 2017 to 2018.

She stated that during that time, Maison St. Charles had two valet parking lots (for

clarity the lots will be referred to as Lot 1 and Lot 2). Ms. Cavet recalled that

Maison St. Charles charged patrons of the hotel “$25.00” to utilize the valet

parking lots. Ms. Cavet explained that generally, Maison St. Charles would only

utilize Lot 1, because the gate on Lot 2 was broken and remained opened. Ms.

c) Failing to inspect the premises and/or have it properly inspected;

d) Failing to detect and correct the unreasonably dangerous

condition;

e) Failing to take all means and precautions necessary to avoid the

injury;

f) Failing to reroute guests away from the hazardous condition; and

g) Any and all acts of negligence that shall be proven at the time of

trial.

2

Maison St. Charles disputes service was properly obtained on it through Ms. Dowden, and it

filed a separate nullity action which is pending in the district court. Maison St. Charles v. Cavet,

Civil District Court of Orleans Parish, No. 2020-5436, Division J. La. C.C.P. art. 2005 provides

that “[a]n action of nullity does not affect the right to appeal” and that “[a] judgment may be

annulled prior to or pending an appeal therefrom, or after the delays for appealing have elapsed.”

In Assensoh v. Diamond Nails, 04-1130, p. 5 (La. App. 4 Cir. 2/16/05), 897 So.2d 806, 810

(quoting 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil

Procedure § 12.6 (1999)), this Court explained that La. C.C.P. art. 2005 allows that “‘the two

remedies may be sought simultaneously.’” Thus, the pending nullity action does not impede our

review of this matter.

2

Cavet described the gate in Lot 2 as being a large iron gate which had wheels, and

the gate was automated to slide open and shut. However, the automation was not

operating, and instead, the gate was opened and shut by hand. Ms. Cavet clarified

that the entry into Lot 2 was controlled by the gate, and the entire parking lot was

fenced in. Ms. Cavet testified that a week and a half before October 13, 2018,

Maison St. Charles lost use of Lot 1, and the only lot in use was Lot 2. Ms. Cavet

responded affirmatively when questioned if Lot 2 was controlled and owned by

Maison St. Charles.

On October 13, 2018, although Ms. Cavet was not working, she went to

Maison St. Charles as a patron between 10:00 p.m. and 11:30 p.m. When she

arrived, she saw patrons of Maison St. Charles she knew, standing in Lot 2. She

walked over to speak to the patrons and entered Lot 2 through the gate that was

opened at that time. Ms. Cavet testified that she visited with the patrons from the

hotel for thirty or forty minutes. When she went to leave Lot 2, she discovered that

the gate was closed, and she was locked inside the parking lot. The only means of

exiting the lot was through the gate. Ms. Cavet testified that she “opened [the gate]

by hand” and explained “[i]ts on wheels, so I just pulled it open.” When she

opened the gate, it fell on her, causing her to fall backwards and hit her head. Ms.

Cavet affirmed that, before she opened the gate, she could not ascertain if it was

defective, and there was no sign or warning that the gate was defective. She

recalled there was a sign on the gate which read “gate stays closed.”

Ms. Cavet testified that, when the gate fell on her, she was pinned under it

for approximately two minutes before someone came to help her. She stated, as a

result of the incident, she sustained a fractured left ankle, a sprained right ankle, a

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busted lip, a chipped tooth, bruises all over her body, injuries to her head and knee,

and a herniated disc in her back.

Ms. Cavet offered the affidavits of Adam Godfrey (“Mr. Godfrey”), Tyler

Harvey (“Mr. Harvey”) and Lauren Crawford (“Ms. Crawford”), who,

respectively, attested regarding the condition of the gate, as follows:

Mr. Godfrey:

2. That he worked at the front desk of the Maison St. Charles hotel

from approximately November 2016 to May 2019;

3. That prior to October 2018, he was aware that the gate at the valet

lot that caused injury to Plaintiff, Brittany Cavet, was broken;

4. That prior to October 2018, the Maison St. Charles hotel was aware

that the gate at the valet lot that caused injury to Plaintiff, Brittany

Cavet, was broken;

5. That prior to October 2018, he personally informed the Maison St.

Charles hotel’s then - Assistant General Management, Vanessa

Abney, that the gate that caused injury to Plaintiff, Brittany Cavet,

was broken;

6. That prior to October 2018, he personally informed the Maison St.

Charles hotel’s owner, Amaury Tardieu that the gate . . . was broken;

[and]

7. That the fact that the gate was broken was not visually apparent.

Mr. Harvey:

2. That he is employed by Blue Marine Security;

3. That he has been employed by Blue Marine Security since

approximately January 2018;

4. That Blue Marine Security provided security guard services to the

Maison St. Charles hotel prior to October 13, 2018, on October 13,

2018, and subsequent to October 13, 2018;

5. That as a Blue Marine Security employee, he personally provided

security guard services to the Maison St. Charles hotel prior to

October 13, 2018 and subsequent to October 13, 2018;

6. That prior to October 2018, he was aware that the gate at the valet

lot that caused injury to Plaintiff, Brittany Cavet, was broken;

7. That prior to October 2018, the Maison St. Charles hotel was

informed and aware that the gate at the valet lot that caused injury to

Plaintiff, Brittany Cavet, was broken;

8. That the fact that the gate was broken was not visually apparent;

[and]

9. That the security logs drawn up by Blue Marine Security’s guards

detail that the gate in question was broken prior to October 13, 2018.

4

Ms. Crawford:

2. That she worked at the front desk of the Maison St. Charles hotel

from approximately September 19, 2017 to January 20, 2018;

3. That prior to October 2018, she was aware that the gate at the valet

lot that caused injury to Plaintiff, Brittany Cavet, was broken;

4. That prior to October 2018, the Maison St. Charles hotel was aware

that the gate at the valet lot that caused injury to Brittany Cavet, was

broken;

5. That she has personal knowledge that, prior to December 2017, the

Maison St. Charles hotel utilized another parking lot (“the first valet

lot”) for their valet services because the gate at the valet lot which

caused injury to Ms. Cavet was broken and they could not safely

secure cars inside;

6. That she has personal knowledge that when the Maison St. Charles

hotel lost the right to use the first valet lot, they resorted to using the

lot with the gate which caused injury to Ms. Cavet, but never repaired

the gate despite using it to secure vehicles in the lot; [and]

7. That the fact that the gate was broken was not visually apparent.

In addition, Ms. Cavet introduced the following evidence into the record: (a) a

photograph of the gate that fell on Ms. Cavet, which depicted a long sliding iron

gate with wheels that ran on a track, located at the entrance of Lot 2 and the

fencing surrounding the lot; (b) photographs depicting Ms. Cavet’s injuries; (c)

affidavit of Dr. Marco Rodriguez, M.D. (“Dr. Rodriguez”), Ms. Cavet’s treating

physician; and (d) certified copies of Ms. Cavet’s pertinent medical records and

bills.

Following the hearing, the district court rendered judgment confirming the

default judgment in favor of Ms. Cavet, and against Maison St. Charles. The

district court awarded Ms. Cavet damages “in the sum of $15,424.98 representing

special damages for past medical expenses, $360,800.00 representing special

damages for future medical expenses, and $635,000.00 representing general

damages for past, present, and future mental anguish, emotional distress, and pain

and suffering . . . .”

5

This appeal by Maison St. Charles followed.3

DISCUSSION

On appeal, Maison St. Charles asserts the following assigned errors:

1. Ms. Cavet failed to prove at the confirmation hearing a prima facie

case that Maison St. Charles was negligent, in that Ms. Cavet failed to

prove Maison St. Charles: a. had care, custody and control of the

allegedly defective gate that fell on Ms. Cavet; and b. had either actual

or constructive knowledge of the existence of an unreasonably

dangerous condition existing on its premises;

2. Ms. Cavet failed to prove at the confirmation hearing a prima facie

case that she would undergo future medical treatment, rendering her

award of future medical expenses excessive;

3. The district court erred in failing to assign comparative fault to Ms.

Cavet; and

4. The district court erred in awarding excessive damages.

DEFAULT JUDGMENT

Louisiana Code of Civil Procedure Article 1702 sets forth the procedure for

confirming a default judgment. In order to confirm a default judgment for a

delictual obligation, as in the present case, subsection (B)(2) provides:

When a demand is based upon a delictual obligation, the

testimony of the plaintiff with corroborating evidence, which may be

by affidavits and exhibits annexed thereto which contain facts

sufficient to establish a prima facie case, shall be admissible, self-

authenticating, and sufficient proof of such demand. The court may,

under the circumstances of the case, require additional evidence in the

form of oral testimony before entering a final default judgment.

3

An amicus brief was filed by AXIS Insurance Company (“AXIS”), Maison St. Charles’ insurer.

The amicus brief raises the same issues as raised by Maison St. Charles. Amicus briefs are

limited to argue what the parties raised. See U. S. Fid. & Guar. Co. v. Victory Land Co., 410

So.2d 359, 361 (La. App. 4 Cir. 1982)(citations omitted)(“The law is well settled that issues not

raised by the litigants cannot be raised by amicus curiae on appeal . . . . [R]elief beyond that

which is sought by the parties cannot be requested by amicus curiae.”).

6

In addition, “[w]hen the demand is based upon a claim for a personal injury, a

sworn narrative report of the treating physician or dentist may be offered in lieu of

his testimony.” La. C.C.P. art. 1702 (D).

The burden of proof for the party seeking to confirm a default judgment was

set forth by the Supreme Court in Arias v. Stolthaven New Orleans, L.L.C., 08-

1111, pp. 7-8 (La. 5/5/09), 9 So.3d 815, 820:

Confirmation of a default judgment is similar to a trial and

requires, with admissible evidence, “proof of the demand sufficient to

establish a prima facie case.” La. C.C.P. art. 1702(A); Power

Marketing Direct [v. Foster], 05-2023 at 10, 938 So.2d [662] at 670

[La. 9/6/06]; [Frank L.] Maraist, [Louisiana Civil Law Treatise: Civil

Procedure § 12.3, at] 452-453 (2d ed. 2008). The elements of a prima

facie case are established with competent evidence, as fully as though

each of the allegations in the petition were denied by the defendant.

Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.

1993); Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La. 1989). In

other words, the plaintiff must present competent evidence that

convinces the court that it is probable that he would prevail at trial on

the merits. Thibodeaux, 538 So.2d at 1004. A plaintiff seeking to

confirm a default must prove both the existence and the validity of his

claim . . . .

At the hearing, the rules of evidence generally apply. La. C.E.

art. 1101(A); Maraist, supra, at 452-453 . . . . “Because at a default

confirmation there is no objecting party, to prevent reversal on appeal,

both plaintiff and the trial judge should be vigilant to assure that the

judgment rests on admissible evidence” that establishes a prima facie

case. George W. Pugh, Robert Force, Gerald A. Rault, Jr., & Kerry

Triche, Handbook on Louisiana Evidence Law 677 (2007). Thus,

inadmissible evidence, except as specifically provided by law, may

not support a default judgment even though it was not objected to

because the defendant was not present. 19 Frank L. Maraist, Civil Law

Treatise: Evidence and Proof § 1.1, at 5 (2d ed. 2007).

There is a presumption that a default judgment is supported by

sufficient evidence, but this presumption may be rebutted by the

record upon which the judgment is rendered. Ascension Builders, Inc.

v. Jumonville, 262 La. 519, 527, 263 So.2d 875, 878 (1972). Finally, a

defendant against whom a default judgment is confirmed may not

assert an affirmative defense on appeal. Galland v. Nat’l Union Fire

Ins. Co. of Pittsburg, Pa., 452 So.2d 397, 398-99 (La. App. 3d Cir.

1984); Romero v. Sunseri, 359 So.2d 305, 308 (La. App. 4th Cir.

1978).

7

The Arias court explained that “[i]n reviewing default judgments, the appellate

court is restricted to determining the sufficiency of the evidence offered in support

of the judgment,” and that determination is a factual one “governed by the manifest

error standard of review.” Id., 08-1111, p. 5, 9 So.3d at 818 (citations omitted).

With these principals in mind, we turn to Maison St. Charles’ assigned

errors.

NEGLIGENCE

Maison St. Charles argues that Ms. Cavet failed to prove it was negligent;

specifically, it asserts Ms. Cavet failed to prove: (1) it had control or garde of the

gate; and (2) it had actual or constructive knowledge of the unreasonably

dangerous condition of the gate.

Under the law applicable to Ms. Cavet’s claims, there are several possible

theories of negligence, if proven, which Maison St. Charles may be found to be

liable for the damage caused by the broken gate: (1) if the gate was in Maison St.

Charles “custody” at the time of its collapse (La. C.C. art. 2317 and 2317.1)4; (2) if

the gate is considered a “building,” and Maison St. Charles owned it at the time of

its collapse (La. C.C. art. 2322), or (3) if the damage caused can be found to have

happened because of Maison St. Charles’ “fault” (La. C.C. art. 2315). See

Simmons v. Bd. of Comm’rs for Port of New Orleans, 442 So.2d 836, 838 (La.

App. 4th Cir. 1983)(wherein a gate fell on plaintiff resulting in injury, and this

Court applied these negligence theories of recovery). To be successful at trial, Ms.

Cavet would have to prove only one of the theories of recovery.

4

See Fontanille v. Levy, 11-0882, 2012 WL 4754154, *3 (La. App. 4 Cir. 1/25/12), wherein this

Court explained that “Article 2317.1 qualifies the responsibility imposed by Article 2317 for an

owner of a thing that causes damage to others . . . .”

8

In Fisher v. Villere, 20-0242, 2021 WL 717981, *1,*4 (La. App. 4 Cir.

2/24/21), this Court explained, in pertinent part:

“The threshold issue in any negligence action is whether the

defendant owed the plaintiff a duty, and whether a duty is owed is a

question of law.” Bufkin v. Felipe’s Louisiana, LLC, 14-0288, p. 5

(La. 10/15/14), 171 So.3d 851, 855 (citation omitted). Louisiana Civil

Code Article 2315 provides, “[e]very act whatever of man that causes

damage to another obliges him by whose fault it happened to repair

it.” “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 the things which we have in our custody . . .

.” La. C.C. art. 2317. Where damages are claimed as a result of vices

or defects in the thing within one’s custody, La C.C. art. 2317.1

provides:

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. . . .

To successfully prove liability pursuant to La. C.C. arts. 2317 and

2317.1, the plaintiff must prove each of the following elements:

(1) the thing was in the [owner or] custodian’s custody or

control; (2) it had a vice or defect that presented an

unreasonable risk of harm; (3) the defendant knew or

should have known of the unreasonable risk of harm; and

(4) the damage was caused by the defect.

Szewczyk v. Party Planners W., Inc., 18-0898, p. 7 (La. App. 4 Cir.

5/29/19), 274 So.3d 57, 62. Once these elements are proven, the

plaintiff’s burden requires proof that the owner knew or should have

known of the ruin, vice, or defect which caused the damage; that the

owner could have prevented the damage by the exercise of reasonable

care; and that the owner failed to exercise such reasonable care. Id.,

18-0898, pp. 7-8, 274 So.3d at 62 (citations omitted). Failure of the

plaintiff to prove any one of the above factors is fatal to the case. Id.,

18-0898, p. 8, 274 So.3d at 62.

Similarly, under La. C.C. art. 2322, a plaintiff must prove the following

elements to hold the owner of the building liable for injuries caused by the

building’s vice, ruin or defect: “(1) ownership of the building; (2) the owner knew

9

or, in the exercise of reasonable care, should have known of the ruin or defect; (3)

the damage could have been prevented by the exercise of reasonable care; (4) the

defendant failed to exercise such reasonable care; and (5) causation.” Broussard v.

State, through Office of State Bldgs., Div. of Admin., 12-1238, p. 8 (La. 4/5/13),

113 So.3d 175, 182-83. “[O]ur jurisprudence requires that the ruinous building or

its defective component part create an unreasonable risk of harm.” Id. at 183

(citing Entrevia v. Hood, 427 So.2d 1146, 1148-49 (La.1983)).

The duty of an owner or custodian of property to keep his property in a

reasonably safe condition is the same whether based on custodial liability under

La. C.C. arts. 2317, 2317.1 and 2322, or negligence under La. C.C. art. 2315(A),

and the deficiency of a plaintiff to show that the property had a condition that

created an unreasonable risk of harm to persons on the premises results in the

defendant owing no duty to the plaintiff under any of the theories of recovery.

Cheramie v. Port Fourchon Marina, Inc, 16-0895, p. 4 (La. App. 1 Cir. 2/17/17),

211 So.3d 1212, 1215 (citation omitted)(footnote omitted). Consequently, under

any of the theories of recovery, Ms. Cavet had to prove by the preponderance of

the evidence that: (1) Maison St. Charles had ownership or garde/custody of the

gate, (2) the gate had a vice or defect that was in an unreasonably dangerous

condition or created an unreasonable risk of harm; (3) Maison St. Charles knew or

should have known it was in an unreasonably dangerous condition or created an

unreasonable risk of harm; and (4) the damage was caused by the defect. Failure

to prove one of these factors defeats Ms. Cavet’s negligence claim.

10

Whether Ms. Cavet proved ownership or garde/custody of the gate

Maison St. Charles argues Ms. Cavet failed to prove it was the owner or it

had garde or custody over the gate in Lot 2; thus, she failed to prove Maison St.

Charles owed her a duty.

Ownership

In Cunningham v. M & S Marine, Inc., 05-0805 (La. App. 4 Cir. 1/11/06),

923 So.2d 770, this Court reviewed a default judgment in a personal injury case of

a seaman against a vessel on which he was working when he was injured. Similar

to the present case, the plaintiff had to prove ownership of the vessel. To support

this element, the plaintiff introduced his affidavit at the confirmation of default

hearing that stated, in part: “On March 18, 2003, I was employed as a seaman

aboard the M/V BIG EASY, a vessel owned and/or operated by the defendants

[M&S Marine and M&S Towing], which vessel was in the navigable water of the

United States in Plaquemines Parish, Louisiana.” Id., 05-0805, p. 2, 923 So.2d at

772. On appeal, M & S Towing argued the plaintiff incorrectly alleged that M & S

Towing was the owner and/or operator of the vessel. M & S Towing argued that it

had absolutely no involvement with the M/V BIG EASY and/or the plaintiff’s

employment. This Court, in reversing the trial court, held in pertinent part:

The record reflects that the only evidence presented that M & S

Towing was the owner of the vessel was the plaintiff’s attestation in

his affidavit that M & S Towing was, in fact, the owner. Because there

is no exhibit attached to the plaintiff’s affidavit that corroborates his

statement that M & S Towing was the owner of the vessel and

because there was no other basis from which one can conclude that M

& S Towing owned the vessel, the plaintiff’s statement is inadmissible

hearsay. Absent any other evidence of ownership, we find that the

plaintiff failed to present sufficient evidence to establish a prima facie

case against M & S Towing.

Id., 05-0805, p. 5, 923 So.2d at 774.

11

In the present case, at the hearing on the motion to confirm the default

judgment, Ms. Cavet responded, “Yes,” when asked if Lot 2 was “controlled and

owned by Maison St. Charles.” However, Ms. Cavet did not introduce into

evidence any document corroborating her statement that Maison St. Charles owned

Lot 2. Moreover, the affidavits submitted at the hearing do not establish or

corroborate that Maison St. Charles owned Lot 2. As in Cummingham, we

conclude that Ms. Cavet failed to establish a prima facie case that Maison St.

Charles was the owner of Lot 2; thus, recovery under La. C.C. art. 2322 falls.

Garde/Custody

“To determine whether a defendant had garde or custody over a thing, a

court must consider whether the defendant had the right of direction or control over

the thing and what, if any, benefit the defendant derived from the thing.” Chesney

v. Entergy Louisiana, L.L.C., 51,718, pp. 7-8 (La. App. 2 Cir. 11/15/17), 245 So.3d

281, 286 (citing Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461 (La. 1991));

See also, Thumfart v. Lombard, 613 So.2d 286, 290 (La. App. 4th Cir. 1993). In

Carroll v. Am. Empire Surplus Lines Ins. Co., 289 F. Supp. 3d 767, 774 (E.D. La.

2017)(quoting In re FEMA Trailer Formaldehyde Prod. Liab. Litig., 838 F. Supp.

2d 497, 506, 512 (E.D. La. 2012)), the federal district court explained, in pertinent

part:

In determining whether a party has a legal relationship

with a thing so as to have the right of direction and

control over it, courts have looked to a variety of factors,

including whether the party has the right to use, alienate,

encumber, or lease the thing, or otherwise grant a right of

use to others [see Doughty [v. Insured Lloyds Ins. Co.],

576 So.2d 461, 464-65 [(La. 1991)]; Smith v. State of

Louisiana, 620 So.2d 1172, 1183-84 (La. Ct. App. 1st

Cir. 1992)]; whether the party has the right to authorize

alterations or repairs to the thing [, Butler v. Re/Max New

Orleans Props., Inc., 828 So.2d 43 (La. Ct. App. 4th Cir.

12

2002)], and whether the party has an unfettered right to

access the thing at will, versus only a limited access to

enter [, see Bethea v. Great Atlantic & Pacific Tea Co.,

22 So.3d 1114, 1116 (La. Ct. App. 4th Cir. 2009)].

In the case sub judice, the record supports the district court’s finding that

Ms. Cavet presented sufficient evidence to support that it was more probable than

not that Maison St. Charles had the right to unfettered access to Lot 2, it benefitted

from using Lot 2, and it had the right to authorize repairs to the gate in Lot 2. Ms.

Cavet testified that Lot 2 was regularly used by Maison St Charles for about week

and a half before her incident, and Ms. Crawford attested that, when Maison St.

Charles lost use of Lot 1, it resorted to using Lot 2.5 Ms. Cavet testified that

Maison St. Charles charged patrons $25.00 per night to park in the parking lot.

Mr. Godfrey, Mr. Harvey, and Ms. Crawford, employees or contract employees of

Maison St. Charles, attested they informed Maison St. Charles that the gate was

broken. Mr. Godfrey stated that he personally informed Maison St. Charles hotel’s

Assistant General Management, Vanessa Abney, and owner, Amaury Tardieu, that

the gate was broken. Mr. Harvey, employed by Blue Marine Security, attested that

he told Maison St. Charles that the gate was broken, and the security logs prepared

by Blue Marine Security’s guards detailed that the gate in question was broken

prior to October 13, 2018. Resultantly, we conclude that Ms. Cavet established a

prima facie case to prove that Maison St. Charles had garde or custody over the

gate in valet parking lot. No. 2.

5

Ms. Cavet asserts that the photograph of Lot 2 depicting the gate, which was introduced into

evidence, reflects a sign on the gate that stated “Maison St. Charles VALET PARKING ONLY.”

However, we note the sign, if any on the gate, cannot be seen in the photograph contained in the

appellate record.

13

Whether Ms. Cavet proved that the gate had a vice or defect that presented an

unreasonable risk of harm, and Maison St. Charles knew or should have

known of the unreasonable risk of harm

Maison St. Charles combines these two factors. Maison St. Charles argues

that Ms. Cavet failed to prove it had actual or constructive knowledge that the gate

was unreasonably dangerous or presented an unreasonable risk of harm. As

discussed supra, Mr. Godfrey, Mr. Harvey and Ms. Crawford attested they

informed Maison St. Charles that the gate was “broken.” Maison St. Charles

asserts that, although the evidence suggests Maison St. Charles employees may

have known the gate was broken, the evidence was insufficient to show it knew

that the gate was “so significantly defective” that it was unreasonably dangerous or

created an unreasonable risk of harm.

“The mere presence of a defect does not alone elevate that defect to the

level of an unreasonably dangerous condition.” Primrose v. Wal-Mart Stores, Inc.,

48,370, p. 5 (La. App. 2 Cir. 10/2/13), 127 So.3d 13, 17 (citation omitted). In

Todd v. Angel, 48,687, p. 9 (La. App. 2 Cir. 1/15/14), 132 So.3d 453, 458, the

appellate court explained that a “‘defect’ in a thing, for which one having custody

of the thing may be liable for damages caused, is a condition or imperfection that

poses an unreasonable risk of injury to persons exercising ordinary care and

prudence.” “

Broussard, 12-1238, p. 9, 113 So.3d at 183; see also, Hooper v. Brown, 15-0339,

p. 7 (La. App. 4 Cir. 5/22/15), 171 So.3d 995, 1000. In Broussard, 12-1238, pp. 9-

14

10, 113 So.3d at 184, the Supreme Court explained the balancing test courts have

adopted to assist the trier of fact in determining if a defect creates an unreasonable

risk of harm:

To aid the trier-of-fact in making this unscientific, factual

determination, this Court has adopted a risk-utility balancing test,

wherein the fact-finder must balance the gravity and risk of harm

against individual societal rights and obligations, the social utility of

the thing, and the cost and feasibility of repair. See, e.g., Reed [v.

Walmart], 97-1174 at p. 5, [(La. 3/4/98)] 708 So.2d [362] at 365;

Boyle v. Board of Sup’rs, Louisiana State Univ., 96-1158 (La.

1/14/97), 685 So.2d 1080, 1083; Entrevia [v. Hood], 427 So.2d [1146]

at 1149 [(La. 1983)]. Specifically, we have synthesized this risk-

utility balancing test to a consideration of four pertinent factors: (1)

the utility of the complained-of condition; (2) the likelihood and

magnitude of harm, including the obviousness and apparentness of the

condition; (3) the cost of preventing the harm; and (4) the nature of

the plaintiff’s activities in terms of its social utility or whether it is

dangerous by nature. E.g., Dauzat v. Curnest Guillot Logging, Inc.,

08-0528, p. 5 (La. 12/2/08), 995 So.2d 1184, 1186-87 (per curiam);

Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, pp.

9-10 (La. 2/20/04), 866 So.2d 228, 235; Pitre v. Louisiana Tech.

Univ., 95-1466, pp. 12-16 (La. 5/10/96), 673 So.2d 585, 591-93.

Applying the risk-utility balancing test to the present facts, the utility of the

gate was high; it secured the entry to the parking lot used to park patrons’ vehicles.

The gate’s utility, however, must be balanced against the likelihood and

magnitude of the harm presented by its defective condition, including whether the

defect was open and obvious. If the gate’s condition was open and obvious to all

who encountered it, then the defect may not be unreasonably dangerous. See

Hooper, 15-0339, p. 9, 171 So.3d at 1001 (citations omitted)(“In order for a hazard

to be considered open and obvious, the Supreme Court has consistently stated that

the hazard should be one that is open and obvious to all, i.e., everyone who may

potentially encounter it.”). In Broussard, the Supreme Court explained that “the

analytic framework for evaluating an unreasonable risk of harm is properly

classified as a determination of whether a defendant breached a duty owed, rather

15

than a determination of whether a duty is owed . . . .” Id., 12-1238, pp. 11-12, 113

So.3d at 185. Whether a defendant has breached a duty owed is a question of fact.

Id., 12-1238, p. 12, 113 So.3d at 185. Turning to the evidence presented in the

case sub judice, we conclude that the evidence did not support a finding that the

defect was open and obvious. To the contrary, Ms. Cavet testified the defective

condition of the gate was not apparent. She stated that the gate was opened when

she arrived, and it was closed when she went to leave the parking lot. Likewise,

Mr. Godfrey, Mr. Harvey, and Ms. Crawford attested that it was not apparent that

the gate was broken.

As to the likelihood and magnitude of harm presented by the broken or

malfunctioning large gate, it was high. A broken or malfunction large gate that

was on wheels attached to a track which allowed the gate to slide open and shut,

while serving as the only entrance and exit to the parking lot, could quickly

become a dangerous instrumentality.

Next, the fact-finder must balance the risk of harm against “the cost and

feasibility of repair.” Broussard, 12-1238, p. 23, 113 So.3d at 192 (citation

omitted). The Broussard court explained that “the cost-benefit analysis employed

by the fact-finder in making this determination is more properly associated with

the breach, rather than the duty, element of our duty-risk analysis.” Id., 12-1238,

p. 12, 113 So.3d at 185 (citation omitted)(footnote omitted). Ms. Cavet argues that

“surely the cost of fixing the security of the [gate] pales in comparison to the risks

associated with a large iron gate falling on an employee or hotel guest,” and “at

minimum, [it had] a duty to warn of the gate’s defective condition, which it failed

to do.” (footnotes omitted.) Ms. Cavet, however, did not offer any evidence at trial

to show the cost of repairing or replacing the gate. The Supreme Court, in

16

Chambers v. Vill. of Moreauville, 11-898, p. 9 (La. 1/24/12), 85 So.3d 593, 600,

held that “cost is a necessary part of the risk-utility balancing test.” In Chambers,

the plaintiff suffered injuries after she tripped and fell due to the deviation in a

public sidewalk. The issue before the Supreme Court was whether the deviation

created an unreasonable risk of harm. In applying the risk-utility balancing test,

the trial court expressly declined to consider the cost factor, although evidence as

to this factor was presented at trial. The Supreme Court held that the trial court

committed legal error in failing to consider the cost factor, writing:

[W]e find the trial court applied incorrect principles of law

because it failed to consider a necessary component of the risk-utility

balancing test in determining whether the instant deviation created an

unreasonable risk of harm. Specifically, the trial judge erred when he

expressly declined to consider cost, an indispensable component of

the risk-utility balancing test. Additionally, we find this error

prejudicial because it skewed the trial court’s finding of a material

issue of fact, that the condition of the sidewalk created an

unreasonable risk of harm. Accordingly, this Court will make an

independent de novo review of the record and address whether the

trial court erred in finding the [defect] created an unreasonable risk of

harm.

Id., 11-898, pp. 4-5, 85 So.3d at 597. In the case sub judice, unlike in Chambers,

there is no evidence in the record as to the cost to repair or replace the gate, thus,

this Court is constrained from conducting a de novo review as to this factor. Based

on the holding in Chambers that “cost is a necessary [and indispensable] part of the

risk-utility balancing test,” and due to the lack of evidence regarding the cost and

feasibility factor of the risk-utility balancing test, we conclude that Ms. Cavet

failed to prove that the gate was unreasonably dangerous or created an

17

unreasonable risk of harm. Consequently, Ms. Cavet failed to present sufficient

evidence to support a finding that Maison St. Charles breached a duty owed to her.6

Accordingly, we conclude that Ms. Cavet failed to establish a prima facie

case of negligence under La. C.C. arts. 2315, 2317, and/or 2317.1; thus, the district

court erred in confirming the default judgment. The remaining assignment of

errors are moot.

CONCLUSION

Based on the foregoing reasons, the district court’s judgment is reversed and

the matter remanded to the district court for further proceedings.

REVERSED; REMANDED

6

Having found Ms. Cavet failed to prove the gate was unreasonably dangerous or created an

unreasonable risk of harm, the remaining factor in the risk-utility balancing test need not be

addressed.

18