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.

 The United States was substituted as the defendant on October 31, 2008, pursuant

1

to 28 U.S.C. § 2679(b)(1).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30376

Summary Calendar

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 under the Federal Tort Claims Act (FTCA), 28 1

United States Court of Appeals

Fifth Circuit

F I L E D

March 31, 2010

Charles R. Fulbruge III

Clerk

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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.

LA. CIV. CODE ANN. 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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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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