Vaughn v. Firehouse Grill, L.L.C.

Excerpt

NEGLIGENCE/SLIP/FALL: Summary judgment was properly granted in favor of defendant restaurant owner on plaintiff customer's negligence claim stemming from her trip and fall down a handicap ramp outside the restaurant where the restaurant owner presented uncontroverted evidence that the ramp and its paint scheme was open and obvious: the customer had testified that she knew where the ramp was, having navigated it successfully three times prior to her fall, she had an unobstructed view of the ramp at the time of her fall, and no attendant circumstances distracted her from seeing where she was going, and the customer's deposition testimony that she was unable to see the change in elevation between the ramp and the parking lot, when coupled with the deposition testimony from defendants-appellees' representatives, the photographs of the ramp, and the evidence of code violations given by an architect, was insufficient to create a genuine issue of material fact as to the latent nature of the paint scheme of the ramp. [But see DISSENT: The trial court erred in granting summary judgment in favor of the restaurant owner, because the evidence, including photographs, viewed in the light most favorable to the plaintiff customer, did not conclusively establish that the ramp's condition was open and obvious where plaintiff testified that the paint scheme made the ramp seem wider than it was and that the ramp was not a typically rectangular handicap ramp, and the restaurant owner testified that he could not accurately identify the ramp's shape even after viewing photographs of it.] Summary judgment was properly granted to defendant independent contractor on the plaintiff restaurant customer's claim that it had negligently painted a handicap ramp where the independent contractor had presented uncontroverted evidence that it had contracted with the restaurant owner to restripe the parking lot, which included repainting the handicap ramp just as it had been painted previously it had su