     Case: 09-30376     Document: 00511067671          Page: 1    Date Filed: 03/31/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 31, 2010

                                     No. 09-30376                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



MAXIME E. GOURGEOT, JR.; SYLVIA L. GOURGEOT,

                                                   Plaintiffs - Appellants
v.

UNITED STATES OF AMERICA,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-1621


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Maxime Gourgeot slipped and fell on the steps of the United States Post
Office in Bogalusa, Louisiana, sustaining injuries.               After exhausting their
available administrative claims, Mr. Gourgeot and his wife, Sylvia, sued the
United States Postal Service 1 under the Federal Tort Claims Act (FTCA), 28



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
        1
        The United States was substituted as the defendant on October 31, 2008, pursuant
to 28 U.S.C. § 2679(b)(1).
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                                  No. 09-30376

U.S.C. §§ 1346(b)(1) & 2671 et seq. Following a bench trial, the district court
found that the steps did not constitute an unreasonably dangerous condition and
entered judgment for the Government. The Gourgeots appeal, challenging the
district court’s finding that the steps did not constitute an unreasonably
dangerous condition. We affirm.
      “In reviewing a bench trial, we review findings of fact for clear error and
conclusions of law de novo.” Villafranca v. United States, 587 F.3d 257, 260 (5th
Cir. 2009). “We will find clear error if (1) the findings are without substantial
evidence to support them; (2) the court misinterpreted the effect of the evidence;
or (3) although there is evidence which, if credible, would be substantial, the
force and effect of the testimony, considered as a whole, convinces the court that
the findings are against the preponderance of credible testimony.”           Arete
Partners, L.P. v. Gunnerman, 594 F.3d 390, 394 (5th Cir. 2010) (citing Bd. of Trs.
New Orleans Employers Int’l Longshoremen’s Ass’n v. Gabriel, Roeder, Smith &
Co., 529 F.3d 506, 509 (5th Cir. 2008)).
      “Liability under the FTCA is determined ‘in accordance with the law of the
place where the act or omission occurred.’” Villafranca, 587 F.3d at 260 (quoting
28 U.S.C. § 1346(b)). Louisiana law 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.
L A. C IV. C ODE A NN. art. 2317.1 (West 1997). The elements of this provision are:
(1) custody or control; (2) an unreasonably dangerous condition; (3) actual or
constructive knowledge; and (4) damages caused by the condition. Jeansonne v.
S. Cent. Bell Tel. Co., 8 So. 3d 613, 619 (La. Ct. App. 2009). Here, the parties
dispute whether the steps were an unreasonably dangerous condition—namely,



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                                  No. 09-30376

whether they were “of such a nature as to constitute a dangerous condition,
which would reasonably be expected to cause injury to a prudent person using
ordinary care under the circumstances.” Monson v. Travelers Prop. & Cas. Ins.
Co., 955 So. 2d 758, 761 (La. Ct. App. 2007) (citing Amest v. City of Breaux
Bridge, 801 So. 2d 582, 585 (La. Ct. App. 2001)).         Determining whether a
condition is unreasonably dangerous requires consideration of four factors:
      (1) the utility of the complained-of condition; (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 plaintiff’s activities in terms of its social
      utility or whether it is dangerous by nature.
Hutchinson v. Knights of Columbus, 866 So. 2d 228, 235 (La. 2004).
      Neither party disputes that the steps—which are made of grade
granite—provide the only public ingress to the Bogalusa Post Office and that
there are three sets of handrails that can be gripped for support. Postmaster
Carl LeBouef, who had been at the Bogalusa Post Office since 2000, testified
that he had not heard of any accidents on the steps prior to Mr. Gourgeot’s fall
in May 2005, despite estimating that the steps are used more than 125,000 times
per year. Mr. Gourgeot acknowledged that he had used the steps several times
per week since 1990 without falling prior to May 2005. The custodian, Robert
Pierce, testified that he visually inspected the steps each morning and he had
painted the steps in January 2004 using deck paint mixed with a non-skid
additive to provide greater traction.
      In light of the evidence before the district court, we cannot conclude that
the district court committed clear error in finding that the steps were not
unreasonably dangerous. Nor is this conclusion affected by the testimony of the
Gourgeots’ expert witness, who tested the slipperiness of the steps in March
2008. As the district court noted, the conditions at the time of testing were not
substantially similar to those at the time of Mr. Gourgeot’s fall. Moreover, the


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standards relied upon by the expert contemplated laboratory testing of polished
surfaces using specialized equipment, not field testing of unpolished surfaces
without that equipment. Under these circumstances, the district court, sitting
as the trier of fact, was entitled to discount the probative weight of the expert’s
test results and conclusions.
      We find no clear error in the district court’s findings of fact. Accordingly,
the judgment of the district court is AFFIRMED.
      AFFIRMED.




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