Pennington v. Holiday Retirement Corp. , 100 F. App'x 301 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
June 8, 2004
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FIFTH CIRCUIT Clerk
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No. 03-31022
(Summary Calendar)
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CLAIRE R. PENNINGTON,
Plaintiff-Appellant,
versus
HOLIDAY RETIREMENT CORP.; SHREVEPORT RETIREMENT RESIDENCE II LLC;
TRAVELERS INDEMNITY COMPANY OF ILLINOIS,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Louisiana
USDC No: 5:02-CV-84
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant, Claire R. Pennington, appeals the district court’s grant of summary judgment in
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
favor of Appellees, Holiday Retirement Corp., Shreveport Retirement Residence, II, LLC, and
Travelers Indemnity Co. of Illinois (collectively “Holiday”). Pennington sued Holiday after suffering
injuries from a fall off a sidewalk at Summerfield Estates Retirement Residence. Pennington claims
that the gap between t he edge of the sidewalk and the edge of the grass was wide enough to
constitute a condition creating an unreasonable risk of harm. Holiday moved for summary judgment.
The district court granted summary judgment concluding that the gap between the sidewalk and the
grass was not an unreasonably dangerous condition.
We review a district court’s grant of summary judgment de novo. Melton v. Teachers Ins.
& Annuity Ass’n of America, 114 F.3d 557, 559 (5th Cir. 1997). Summary judgment is proper if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits
filed in support of the motion, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
In order to recover under a theory of negligence or strict liability under Louisiana law, a
plaintiff, inter alia, must establish that there is a condition creating an unreasonable risk of harm. See
Yocum v. Gleason, 792 So. 2d 808, 811 (La. App. 2d Cir. 2001); Williams v. Leonard Chabert Med.
Ctr., 744 So. 2d 206, 209 (La. App. 1st Cir. 1999). We agree with the district court’s application of
Louisiana’s risk-utility balancing test and conclude that the district court did not err in finding that
the gap between the sidewalk and the grass was not an unreasonably dangerous condition. See
Williams, 744 So. 2d at 209-12; Maxwell v. Bd. of Trustees, 692 So. 2d 641 (La. App. 3d Cir. 1997);
Barnes v. New Hampshire Ins. Co., 573 So. 2d 628 (La. App. 2d Cir. 1991).
Accordingly, the judgment of the district court is AFFIRMED.
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