Opinion

Deanna Smith v. State of La., Dotd

Court: Louisiana Court of Appeal
Filed: Nov 2, 2023
Cited by: 0 cases
Authority: More cited than 39.8%

The opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

22-797

DEANNA SMITH

VERSUS

STATE OF LOUISIANA, THROUGH THE

DEPARTMENT OF TRANSPORTATION AND

DEVELOPMENT

**********

APPEAL FROM THE

FIFTEENTH JUDICIAL DISTRICT COURT

PARISH OF LAFAYETTE, NO. 20185856

HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

**********

CANDYCE G. PERRET

JUDGE

**********

Court composed of Candyce G. Perret, Charles G. Fitzgerald, and Guy E. Bradberry,

Judges.

REVERSED AND REMANDED.

Carl J. Rachal

Jeramy Moody

Bart Bernard

Bart Bernard Injury Lawyers

1031 Camellia Boulevard

Lafayette, LA 70508

(337) 989-2278

COUNSEL FOR PLAINTIFF/APPELLANT:

Deanna Smith

Matthew Charles Nodier

Daniel E. Brauner

Amanda E. McGowen

Kimberly L. Wood

Nodier Law, LLC

6663 Jefferson Highway

Baton Rouge, LA 70806

(225) 448-2267

COUNSEL FOR DEFENDANT/APPELLEE:

State of Louisiana, through the Department

of Transportation and Development

Donald Guidry, Jr.

Assistant Attorney General

556 Jefferson Street, 4th Floor

Lafayette, LA 70501

(337) 262-1700

COUNSEL FOR DEFENDANT/APPELLEE:

State of Louisiana, through the Department

of Transportation and Development

PERRET, Judge.

Mrs. Deanna Smith, Plaintiff-Appellant, appeals the trial court’s September 7,

2022 Judgment granting Defendant-Appellee’s, State of Louisiana through the

Department of Transportation and Development (“LADOTD”), summary judgment

and dismissing Mrs. Smith’s claims with prejudice. For the following reasons, we

reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY:

According to the parties, LADOTD contracted with JB James Construction,

LLC (“JB James”) in 2017 to improve and widen Verot School Road in Lafayette.

The project included work on the intersection of Camellia Boulevard and Verot

School Road. LADOTD provided JB James with the plans and specifications for

the project, which included requirements for the placement of warning signs and

barricades such as “construction ahead” and “road closed” signs.

On November 20, 2017, Mrs. Smith was taking a routine, brisk walk and

attempted to cross the intersection at Camellia Boulevard and Verot School Road.

Mrs. Smith took this route often. While she was aware the area was a construction

zone, she alleges that she attempted her crossing “at a place designated for

pedestrians to traverse [the] intersection.” However, before she could complete her

traversal of Verot School Road, Mrs. Smith tripped and fell over a construction string

or cable that she alleges was not readily discernable.

As a result of her fall, Mrs. Smith injured her right elbow, which ultimately

required two surgeries. She filed suit against LADOTD and later amended her

petition to name additional defendants, including JB James and Fouke Sand and

Gravel LLC (“Fouke”). 1 The petitions set forth the following allegations of

negligence:2

a) By failing to provide adequate maintenance on the

roadway and/ or sidewalks in question;

b) By failing to provide adequate inspections and repair of

the roadway and or sidewalks [in] question;

c) By creating an unreasonably dangerous condition(s) to

exist by placing a cable/ obstacle in such a manner that a pedestrian

walking along the area would encounter the hazard, leaving the

dangerous condition for [an] unreasonable length of time, failing to

place any warning/ signage/ flags noting of the hazardous conditions,

and any other unreasonably dangerous conditions proved at trial;

d) By failing to provide adequate maintenance on the road in

question;

e) By failing to provide adequate inspections and repair of

the road in question;

f) By allowing for unreasonably dangerous conditions to

exist on the roadway and/ or sidewalk for unreasonable lengths of time,

including stretching an ankle high cable across the roadway and/ or

sidewalk and adjacent roadside, and any other unreasonably dangerous

conditions proved at trial[.]

JB James and Fouke filed a joint motion for summary judgment on June 2,

2020, alleging that Mrs. Smith could not prove her negligence claim because the

defect she alleged was open and obvious and they were entitled to immunity pursuant

to La.R.S. 9:2771. In support of their motion, JB James and Fouke attached the

affidavit of Jeff James, owner of JB James, who attested that the plans were provided

by LADOTD, all plans and specifications were followed, and the plans did not call

The other defendants, Lafayette City-Parish Consolidated Government and Ernest P.

Breaux Electrical, LLC, were dismissed in March 2019 and September 2019, respectively.

The allegations set forth herein are a culmination of those alleged in the original petition

as amended by the First Supplemental and Amended Petition for Damages.

for “a designated place for pedestrians to traverse the intersection” nor was such a

space created. The affidavit by Prentice Don Young, the JB James Project Manager

for the site, was also attached. Mr. Young attested that he inspected the site fifteen

minutes before Mrs. Smith’s fall and all signs and barricades were present and in

their correct locations, which were set forth by the LADOTD plans. Copies of the

LADOTD signage plat as well as the inspection log were included. Finally, Mrs.

Smith’s deposition was attached. In support of her opposition to summary judgment,

Mrs. Smith only included photographs of the construction area, taken by her husband

on an unknown date and produced during discovery. The trial court granted

summary judgment in favor of JB James and Fouke on September 15, 2020 (“the JB

James Judgment”). The JB James Judgment was appealed to this court (“Smith I”).

LADOTD filed several motions for summary judgment in this case, one which

was filed on August 20, 2020, and set for January 19, 2021. That hearing date was

continued until February 22, 2021. On February 5, 2021, Mrs. Smith filed an

opposition, which included a document produced by LADOTD in discovery,

“SiteManager Daily Summary.” LADOTD explained that this document was a

“daily summary report from October 20, 2017 through December 20, 2017.”

According to the minutes, the trial court denied LADOTD’s motion.

Additionally, while the JB James Judgment was on appeal, both LADOTD

and Mrs. Smith filed additional motions for summary judgment on March 22, 2021,

and April 28, 2021, respectively. LADOTD alleged no duty was owed to Mrs. Smith

because the condition was open and obvious, and alternatively, the notice

requirement of La.Civ.Code art. 2317.1 cannot be proven. As supporting exhibits,

LADOTD attached the affidavits of Jeff James and Prentice Don Young with

corresponding attachments,3 as well as excerpts from Mrs. Smith’s deposition with

photographs.

Mrs. Smith sought partial summary judgment on LADOTD’s liability arguing

that the string/cable was not an open and obvious hazard and that LADOTD had

notice because it, or its contractors, put the string/cable in that location. Mrs. Smith

then made similar arguments in her opposition to the LADOTD’s motion for

summary judgment. In both her motion and her opposition, Mrs. Smith provided

her deposition, color photographs of the construction scene, and a newly acquired

affidavit from a witness, Patrick Reed. Mr. Reed came upon Mrs. Smith while she

was on the ground after her fall and came to her aid. In the process of reaching Mrs.

Smith, Mr. Reed also tripped over the string/cable, nearly falling. Mr. Reed attested

in pertinent part:

4. At the time, Verot School Road was undergoing

construction to widen the roadway and Deanna Smith was seated on the

ground designated for a roadway but was not yet being used for

vehicular traffic due to the construction.

5. I am familiar with this intersection and roadway in

question as I live in the vicinity and traversed this area daily around the

time of the incident.

6. I pulled over my vehicle and went to assist Deanna Smith.

As I approached Deanna Smith, I tripped over construction string that

was strewn across the roadway approximately ten (10) inches off the

ground. I nearly fell to the ground as the construction string was really

thin and not visible to me nor was the construction string open and

obvious to the general public as evidenced by the photographs taken at

the scene. (See Exhibit A attached hereto.)

7. The photographs shown in Exhibit A accurately depict the

construction zone and the scene on the day that Deanna Smith fell.

....

These were the same affidavits attached to the JB James motion for summary judgment.

9. The construction zone was not roped off nor was there any

prohibition for pedestrians to cross the roadway of Verot School Road.

In fact, there was a designated area for pedestrians to cross Verot School

Road.

10. The area that Deanna Smith fell was within the designated

place for pedestrians to cross Verot School Road. (See Exhibit B

attached hereto).

11. Prior to this incident I would see Deanna Smith walking

regularly with her dogs in this area. Additionally, I would see other

pedestrians walking the same route as Deanna Smith on the regular

basis as this was the only area to cross over Verot School Road onto

Camelia Blvd.

In LADOTD’s September 24, 2021 memorandum in opposition to Mrs.

Smith’s partial motion for summary judgment, LADOTD admitted that it inspected

the site “every day” and attached its response to discovery and “SiteManager Daily

Summary” from October 20, 2017 through November 20, 2017.

After a hearing, both motions were denied. The judgement on the LADOTD

motion, specified, “there are genuine issues on [sic] material facts whether the

DOTD had notice of the condition complained of before the alleged accident” and

“there are genuine issues on [sic] material fact whether the condition complained of

was open and obvious.” LADOTD sought supervisory writs with this court, docket

number 21-537, which entered a writ denial on December 16, 2021.

Thereafter, this court handed down its opinion in Smith I. Smith v. State

through Dep’t of Transp. & Dev., 21-192 (La.App. 3 Cir. 3/3/22), 350 So.3d 879.

This court affirmed summary judgment in favor of JB James finding that no duty

was owed to Mrs. Smith as the construction zone and activity was an open and

obvious hazard, and obvious and apparent construction warnings were properly

placed ahead of and in the construction zone. Judge Cooks issued a dissent, finding

“the myriad of factual conclusions resolved by the trial court, and the majority

herein, is wholly inappropriate at the summary judgment state of proceedings.” Id.

at 893.

After the Smith I opinion was rendered, LADOTD filed another motion for

summary judgment on March 30, 2022. LADOTD asserted that summary judgment

was proper and the trial court should apply the law of the case doctrine based on

Smith I and, alternatively, that Mrs. Smith would not be able to prove the notice

requirement of La.Civ.Code arts. 2317 and 2317.1. Attached in support were the

affidavits of Jeff James and Prentice Don Young, with the corresponding signage

plat, excerpts from Mrs. Smith’s deposition with the google map showing her

walking route attached, the JB James Judgment signed September 15, 2020, and the

October 11, 2021 hearing transcript. Mrs. Smith argued, as she does on appeal, that

the string/cable was not open and obvious, that the law of the case doctrine does not

apply because new evidence, i.e., Mr. Reed’s affidavit, is before the court, and that

LADOTD had notice because it or its contractor placed the cable/string across the

road and/or Mr. Young’s inspection should have discovered the string. Mrs. Smith

attached her deposition, photographs of the construction zone, Mr. Reed’s affidavit,

Judge Cooks’s dissent in Smith I, and Mr. Young’s affidavit. At the hearing, Mrs.

Smith asked the court to take the entirety of the record into evidence with respect to

her opposition. No objection was made by LADOTD.

The trial court applied the law of the case doctrine and granted LADOTD’s

motion for summary judgment. The judgment was signed on September 7, 2022.

Thereafter, Mrs. Smith brought this timely appeal asserting two assignments of error:

1. Whether the Trial Court erred in applying the “law of the

case” doctrine when the “law of the case” doctrine does not preclude

the Trial Court from considering new and persuasive evidence that was

not previously available for consideration that presents a compelling

justification to prevent manifest injustice.

2. Whether Defendants were entitled to summary judgment

on the grounds that the defect was open and obvious where Plaintiff

testified, she never saw the string running across the road before she

fell[,] and photographs show the string was difficult to see.

STANDARD OF REVIEW:

A trial court’s grant of summary judgment is reviewed on appeal de novo.

Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. Thus, the appellate court

considers the same criteria as did the trial court, and grants summary judgment where

“the motion, memorandum, and supporting documents show that there is no genuine

issue as to material fact and that the mover is entitled to judgment as a matter of

law.” La.Code Civ.P. art. 966(A)(3); See Dunn v. City of Kenner, 15-1175 (La.

1/27/16), 187 So.3d 404. “A fact is ‘material’ when its existence or nonexistence

may be essential to plaintiff’s cause of action . . . if they potentially insure or preclude

recovery, affect a litigant’s ultimate success, or determine the outcome of the legal

dispute.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639

So.2d 730, 751 (citations omitted). “A genuine issue is one about which reasonable

persons could disagree. Only if reasonable persons could reach only one conclusion

is summary judgment on that issue appropriate.” King v. Town of Clarks, 21-1897,

pp. 1-2 (La. 2/22/22), 345 So.3d 422, 422 (citations omitted). Furthermore,

credibility determinations are inappropriate on summary judgment and should

remain for determination by the factfinder. Hutchinson v. Knights of Columbus,

Council No. 5747, 03-1533 (La. 2/20/04), 866 So.2d 228.

ASSIGNMENT OF ERROR NUMBER ONE, LAW OF THE CASE:

On appeal, Mrs. Smith’s first assignment of error asserts that the trial court

incorrectly applied the law of the case doctrine to grant LADOTD summary

judgment. We agree.

“Under the doctrine of ‘law of the case,’ an appellate court will generally

refuse to reconsider its own rulings of law on a subsequent appeal in the same case.”

Hernandez v. La. Workers’ Comp. Corp., 15-118, p. 5 (La.App. 3 Cir. 6/3/15), 166

So.3d 456, 458-59. The first circuit has further explained:

The reasoning behind the law-of-the-case doctrine is to avoid re-

litigation of the same issue, to promote consistency of result in the same

litigation, and to promote efficiency and fairness to both parties by

affording a single opportunity for the argument and decision of the

matter at issue. Jones v. McDonald’s Corp., [97-2287, La.App. 1 Cir.

11/6/98),] 723 So.2d [492] at 494, citing Louisiana Land and

Exploration Co. v. Verdin, [96-2629, (La. 12/13/96),] 681 So.2d [63] at

65. Re-argument in the same case of a previously decided point will be

barred where there is simply a doubt as to the correctness of the earlier

ruling. The law-of-the-case doctrine is not an inflexible law, thus

appellate courts are not absolutely bound thereby and may exercise

discretion in application of the doctrine. Jones v. McDonald’s Corp.,

723 So.2d at 495. The doctrine is not applied in cases of palpable error

or where, if the law of the case were applied, manifest injustice would

occur. Jones v. McDonald’s Corp., 723 So.2d at 494, citing Glenwood

Hosp., Inc. v. Louisiana Hosp. Serv., Inc., 419 So.2d 1269, 1271

(La.App. 1st Cir.1982). The doctrine applies only against those who

were parties to the case when the earlier decision was rendered, and

who thus have had their day in court. Day v. Campbell–Grosjean

Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105, 107 (1971).

State ex rel. Div. of Admin., Office of Risk Mgmt. v. Nat’l Union Fire Ins. Co. of La.,

13-375, p. 9 (La.App. 1 Cir. 1/8/14), 146 So.3d 556, 562–63. The law of the case

doctrine “does not apply when the underlying operative facts upon which the court’s

prior decision was based have changed.” State ex rel. Div. of Admin., Office of Risk

Mgmt. v. Nat’l Union Fire Ins. Co. of La., 10-689 (La.App. 1 Cir. 2/11/11), 56 So.3d

1236, 1247 n. 7, writ denied, 11-849 (La. 6/3/11), 63 So.3d 1023.

In Smith I, this court set forth the two theories of liability available to Mrs.

Smith in asserting she sustained injuries due to an unreasonably dangerous

condition, i.e., negligence under La.Civ.Code arts 2315 and 2316 and strict liability

under La.Civ.Code art. 2317, and the applicable analysis of both:

Under both theories of liability, a plaintiff must prove that the condition

of the thing presented an unreasonable risk of harm, or was defective,

and that this condition of the thing was a cause-in-fact of her injuries.

Seal v. State Farm Fire & Cas. Co., 00-2375 (La.App. 4 Cir. 3/20/02),

816 So.2d 868, writ denied, 02-1083 (La. 6/14/02), 817 So.2d 1160.

Both theories are analyzed under the duty/risk analysis. Schreiber v.

Jewish Fed’n of Greater New Orleans, 02-992 (La.App. 4 Cir. 1/29/02),

839 So.2d 51, writ denied, 03-613 (La. 6/6/03), 845 So.2d 1089. “The

duty-risk analysis is employed on a case by case basis.” Daye v. Gen.

Motors Corp., 97-1653, p. 7 (La. 9/9/98), 720 So.2d 654, 659. Under

this analysis, the plaintiff must prove five different elements: (1) the

defendant had a duty to conform his or her conduct to a specific

standard of care; (2) the defendant failed to conform his or her conduct

to the appropriate standard of care; (3) the defendant’s substandard

conduct was a cause-in-fact of the plaintiff’s injuries; (4) the

defendant’s substandard conduct was a legal cause of the plaintiff’s

injuries; and (5) actual damages. Christy v. McCalla, 11-0366 (La.

12/6/11), 79 So.3d 293.

On motion for summary judgment, the burden of

proof remains with the movant. However, if the moving

party will not bear the burden of proof on the issue at trial

and points out that there is an absence of factual support

for one or more elements essential to the adverse party’s

claim, action, or defense, then the non-moving party must

produce factual support sufficient to establish that he will

be able to satisfy his evidentiary burden of proof at trial.

If the opponent of the motion fails to do so, there is no

genuine issue of material fact and summary judgment will

be granted. See La. C.C.P. art. 966(D)(1); see also Schultz

v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1006.

Larson v. XYZ Ins. Co., 16-745, p. 7 (La. 5/3/17), 226 So.3d 412, 416.

The existence of a duty is a question of law. Peterson v.

Gibraltar Sav. & Loan, 98-1601, 98-1609 (La. 5/18/99), 733 So.2d

1198.

....

In general, the owner or occupier of land has a duty to keep the

property in a reasonably safe condition. Giorgio v. Alliance Operating

Corp., 05-2 (La. 1/19/06), 921 So.2d 58. This includes a duty to

discover any unreasonably dangerous conditions on the premises and

either correct the condition or warn potential victims of its existence.

Madden v. Saik, 511 So.2d 855 (La.App. 4 Cir. 1987), writ denied, 514

So.2d 131 (La.1987). Moreover, one doing construction work has a

duty to properly label, mark, or barricade places in a construction site

that present an unreasonable risk of harm to a passerby. Martin v. Boh

Bros. Constr. Co., LLC, 05-1300 (La.App. 4 Cir. 6/7/06), 934 So.2d

196. Notwithstanding, a pedestrian has a duty to see that which should

be seen and is bound to observe his course to see if his pathway is clear.

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

2/20/04), 866 So.2d 228.

In cases such as the present one, the facts and surrounding

circumstances of each case control and the test applied requires the

consideration of whether the construction site was maintained in a

reasonably safe condition for persons exercising ordinary care and

prudence. In such instances, the courts have adopted a risk-utility

balancing test to determine whether such a condition is unreasonably

dangerous, wherein the trier of fact balances the gravity and the risk of

harm against the individual and societal utility and the cost and

feasibility of repair. See Bufkin v. Felipe’s La., LLC, 14-288 (La.

10/15/14), 171 So.3d 851.

The courts have created the risk-utility balancing test to a

consideration [sic] 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 social utility or whether the activities were

dangerous by nature. Id.

Smith, 350 So.3d at 884-85.

The Smith I court spent time considering the second risk-utility factor and

whether the condition was open and obvious. If the hazard is open and obvious, “the

condition may not be unreasonably dangerous, and the defendant may owe no duty

to the plaintiff.” Id. at 885. The court reviewed the summary judgment evidence

establishing the presence of road closure signs and barricades; inspection logs and

the JB James inspector’s affidavit that fifteen minutes prior to Mrs. Smith’s fall those

barricades and signs were in their proper place; and Mrs. Smith’s deposition

establishing her awareness of the on-going construction in the area, the fact that she

was walking her dog briskly through the construction zone, and that she could not

recall the presence of the large signs and barricades on the date of her fall, though

she was adamant no cones blocked her path.

Ultimately, the court considered whether the specific presence of the

string/cable within the construction zone, which was otherwise identified as a

construction zone, was an unreasonably dangerous condition that required a specific

warning. Mrs. Smith argued that the area she traversed was a pedestrian path

through the construction zone, and the existence of the path created a duty on

defendants to warn of the tripping hazard. The defendants presented evidence that

the plans and specifications did not set forth a pedestrian walkway through the

intersection. Meanwhile, the court found that the only evidence Mrs. Smith

presented to support the existence of a pedestrian walkway was her testimony, which

fluctuated and was inconsistent throughout her deposition, and a photograph

showing gravel connecting the dug-up portion of the road with the concrete that was

poured for the new lane construction. Furthermore:

Smith has failed to present any evidence that, even if such a pedestrian

pathway was not included in the construction contract, it appeared that

pedestrians enjoyed at least implied permission to cross through the

construction site. At no point in her deposition did Smith contend that

the Defendants’ workers observed her or any other pedestrians crossing

through the construction site at this intersection at any time. See Shafer

v. State, through Dep’t of Transp. & Dev., 590 So.2d 639 (La.App. 3

Cir. 1991).

Smith, 350 So.3d at 890. Ultimately, the court concluded

the Defendants properly placed construction warning signs ahead of

and in the construction zone and [] these warning signs and the

construction activity were obvious and apparent. Moreover, because

the Defendants were neither required to provide a pedestrian walkway

nor were they shown to have knowledge of such activity, they had no

duty to more specifically warn of the yellow construction string. Thus,

Smith, a pedestrian who chose to briskly walk through a construction

zone, had a duty to see that which should be seen and is bound to

observe whether the chosen path was clear. See Hutchinson [v. Knights

of Columbus, 03-1533 (La. 2/20/04),] 866 So.2d 228.

Id. The Smith I court concluded that Mrs. Smith failed to carry her burden of proof

on summary judgment:

After the Defendants showed that Smith would be unable to bear

her burden to prove an essential element of her negligence action,

namely that the Defendants owed her a duty, then the burden shifted to

her to demonstrate that she would be able to meet the burden at trial.

See Schultz v. Guoth, 10-343 (La. 1/19/11), 57 So.3d 1002. Despite this

burden, Smith failed to produce any affidavit, deposition, or other

admissible evidence that the Defendants did have a duty to further warn

pedestrians, such as she, who were aware of this construction.

....

Because Smith failed to show, in opposition to the Defendants’

motion for summary judgment, that she would be able to bear her

burden at trial to prove a duty was owed by Defendants, summary

judgment in favor of the Defendants was properly granted by the trial

court.

Id. at 890-91.

LADOTD’s motion for summary judgment similarly argued that no duty was

owed to Mrs. Smith4 because the allegedly hazardous condition was “obvious and

apparent” and suggested the trial court, and now this court, should apply the Smith I

ruling on that issue to LADOTD’s motion for summary judgment. Alternatively,

LADOTD argued Mrs. Smith cannot prove that LADOTD had notice of the alleged

condition. Mrs. Smith, on the other hand, argued against application of the law of

the case doctrine because she has produced new evidence since the JB James motion

and Smith I was decided. Alternatively, Mrs. Smith argues that the Smith I decision

was incorrect.

The new evidence presented by Mrs. Smith was the affidavit of Mr. Reed. Mr.

Reed’s affidavit corroborates Mrs. Smith’s testimony regarding the existence and

visibility, or lack thereof, of the string. In fact, Mr. Reed himself tripped on the string

when he went to check on Mrs. Smith but did not fall. He also similarly attested that

We note that whether a condition is obvious and apparent is actually a risk-utility factor

used in determining breach of a duty. See Farrell v. Circle K Stores, Inc., 22-849 (La. 3/17/23),

359 So.3d 467.

the area in which Mrs. Smith fell was not roped off and was a “designated place for

pedestrians to cross Verot School Road.” He further attested to seeing other

pedestrians traverse this area on a regular basis prior to Mrs. Smith’s fall.

We find that the production of Mr. Reed’s affidavit assists Mrs. Smith in

meeting her burden of proof on summary judgment, which she could not accomplish

in the prior appeal. Considering this new evidence and the fact that the application

of the law of the case doctrine is discretionary, we decline to apply the law of the

case doctrine herein.

ASSIGNMENT OF ERROR NUMBER TWO, SUMMARY JUDGMENT:

We now consider the appropriateness of summary judgment, specifically, the

issue of whether there are any issues of genuine material fact regarding whether there

was an unreasonably dangerous condition for which LADOTD failed to warn

pedestrians (i.e., whether LADOTD breached its duty to Plaintiff) and whether

LADOTD had notice of the condition.

Summary judgment on this issue of an unreasonably dangerous

condition is warranted upon a finding that no reasonable juror could

have found that the defendant was in breach of the duty. If the

defendant meets that burden of proof, and the plaintiff fails to establish

that he or she will be able to establish the breach element at trial,

summary judgment in favor of the defendant is mandated.

Farrell v. Circle K Stores, Inc., 22-849, p. 16 (La. 3/17/23), 359 So.3d 467, 479–80.

As previously quoted from Smith, 350 So.3d at 884-85: