Janey Yates v. Our Lady of the Angels Hospital, Inc. and Columbia Casualty Company

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0661

JAMEY YATES

VERSUS

Z LADY OF THE ANGELS HOSPITAL, INC. AND COLUMBIA
CASUALTY COMPANY

DATE OF JUDGMENT.- FEB 2 0 2020

ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
NUMBER 108194, DIVISION F, PARISH OF WASHINGTON
STATE OF LOUISIANA

HONORABLE MARTIN E. COADY, JUDGE

Sidney D. Torres, III Counsel for Plaintiff A
- ppellant
Roberta L. Burns Janey Yates
Beau F. Camel
Chalmette, Louisiana

Thomas R. Temple, Jr. Counsel for Defendants -Appellees
Joseph F. Cefalu Our Lady of the Angels Hospital, Inc.
Baton Rouge, Louisiana and Columbia Casualty Company

BEFORE: MCDONALD, THERIOT, AND CHUTZ, JJ.

Disposition: AFFIRMED.

CHUTZ, J.

In this slip and fall case, plaintiff, Janey Yates, appeals a summary judgment

dismissing her damage claims against defendants, Our Lady of the Angels Hospital,
Inc. ( OLAH) and Columbia Casualty Company ( Columbia). We affirm.

FACTS AND PROCEDURAL BACKGROUND

On June 10, 2014, plaintiff accompanied her daughter to the Outpatient

Behavioral Health Clinic (the Clinic) at OLAH to pick up medicine. Plaintiff waited

in the car while her daughter went inside the Clinic. At that point, it had been raining

heavily for some time. When lightning began to appear, plaintiff became frightened

and decided to join her daughter inside the Clinic. Because she did not have an

umbrella, plaintiff was "
soaking wet" by the time she reached the Clinic entryway.

She described herself as being " all wet" with water " rolling all over me."

Plaintiff entered the outside entryway into the Clinic, which was floored with

quarry tiles. There was no floor mat either inside or outside the entry door. As

plaintiff opened the door to enter the building, but before she stepped inside, she

slipped and fell on her side. The upper half of her body landed inside the Clinic

while the lower half of her body was still outside. When plaintiff was asked during

her deposition whether she knew what caused her to fall, she replied, "... not really.

I mean, I was soaking wet. That could be." At another point in her deposition,

plaintiff stated she did not see anything on the entryway floor except water, which

she said was " all over,"
and she believed she slipped on the water outside the entry

door. She admitted, however, that she did not actually see any standing water by the

door but, rather, " felt it."

On June 2, 2015, plaintiff filed a petition for damages naming OLAH and its

liability insurer, Columbia, as defendants. Plaintiff alleged she sustained personal

injuries to her hip and other parts of her body as a result of her fall. She further

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alleged the accident was caused by the wet surface of the entryway floor, which she

asserted constituted an unreasonably dangerous defective condition.

Defendants answered the petition and subsequently filed a motion in limine to

exclude plaintiff' s expert witness, Mr. James R. Danner, Jr., a civil engineer, from

testifying or offering any opinions in this matter. Defendants alleged the opinions

expressed in Mr. Danner' s report were unreliable, irrelevant, and would not help the

trier -of f-act understand the evidence or determine any fact at issue. Defendants also

filed a motion for summary judgment asserting plaintiff would be unable to meet her

burden of proving that: ( 1) an unreasonably dangerous defect existed on the premises

of the Clinic at OLAH; and (2) OLAH possessed actual or constructive notice of any

defect prior to Ms. Yate' s accident.

After a joint hearing on defendants' two motions, the district court took the

motions under advisement. The district court subsequently signed a judgment

granting both the motion in limine to exclude Mr. Danner' s testimony and opinions

and the defendants' motion for summary judgment. In its written reasons for

judgment, the district court concluded Mr. Danner' s opinions should be excluded

because they were not based on sufficient facts and data and were not the product of

reliable principles and methods applied to the facts of this case. In the absence of

Mr. Danner' s proposed opinions, the district court also found plaintiff submitted no

competent evidence that the Clinic entryway was defective in design or composition.

Additionally, the district court found there was no evidence that OLAH possessed

actual or constructive notice of any alleged defect in its premises prior to plaintiff' s

accident. Accordingly, the district court dismissed plaintiff' s claims against

defendants, with prejudice. Plaintiff now appeals.

SUMMARY JUDGMENT LAW

A motion for summary judgment shall be granted only if the motion,

memorandum, and supporting documents admitted for purposes of the motion for

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summary judgment 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. C. C. P. art. 966( A)(3) &

4). In determining whether summary judgment is appropriate appellate courts

review evidence de novo under the same criteria that govern the district court' s

determination of whether summary judgment is appropriate. Alvarado v Lodge at

the Bluffs, Inc., 16- 0624 ( La. App. 1st Cir. 3/ 29/ 17), 217 So. 3d 429, 432, writ

denied, 17- 0697 ( La. 6/ 16/ 17), 219 So. 3d 340.

The burden of proof rests with the mover. La. C. C. P. art. 966( D)( 1).

However, if the mover will not bear the burden of proof at trial on the matter before

the court on the motion, the mover' s burden does not require that all essential

elements of the adverse party' s claim, action, or defense be negated. Instead, the

mover must point out to the court the absence of factual support for one or more

elements essential to the adverse party' s claim, action, or defense. Thereafter, if the

adverse party fails to produce factual evidence sufficient to establish the existence

of a genuine issue of material fact, the mover is entitled to summary judgment as a

matter of law. La. C. C. P. art. 966( D)( 1); Alvarado, 217 So. 3d at 432.

DISCUSSION

In assignments of error numbers one to three, plaintiff argues the district court

applied the wrong standard of negligence in concluding there were no disputed

issues of material fact supporting the imposition of liability against OLAH and in

finding plaintiff presented no evidence OLAH possessed actual or constructive

knowledge of an alleged defect prior to plaintiff's accident. Plaintiff contends that

once a plaintiff in a slip and fall case against a hospital demonstrates she sustained

injury as a result of a foreign substance on the hospital' s premises, the burden shifts

to the hospital to exculpate itself from a presumption of negligence. Thus, plaintiff

argues the district court erred in holding plaintiff bore the burden of proving there

was a defect on OLAH' s premises that created an unreasonable risk of harm or that

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OLAH had notice of the defect. Plaintiff maintains it was OLAH' s burden to

exculpate itself from a presumption of negligence by showing it acted reasonably to
discover and correct the dangerous condition on its premises.

The cases cited by plaintiff in support of her position that OLAH had the

burden of exculpating itself from a presumption of negligence are clearly

distinguishable from the instant case. Unlike the present case, the cases cited by

plaintiff involved accidents that occurred inside buildings and/or involved the

plaintiff allegedly slipping on foreign substances.! Black' s Law Dictionary ( 11th

ed. 2019) defines a " foreign substance" as "[ a] substance found in a body, organism,

or thing where it is not supposed to be found." In this case, plaintiff allegedly slipped

due to the presence of rainwater on the quarry tiles at the outside entry to the Clinic

at OLAH. Considering that plaintiff' s accident occurred during a heavy, prolonged

rainstorm, we do not find that the rainwater on the outside quarry tiles was a " foreign

substance" found where it was not supposed to be. To the contrary, the presence of

rainwater in this outside area was a natural occurrence to be expected under the

circumstances.
Plaintiff' s contention that OLAH bore the burden of exculpating

itself from a presumption of negligence lacks merit.

The general rule is that the owner or person having custody of immovable

property has a duty to keep such property in a reasonably safe condition. The duty

owed is the same under the custodial liability of La. C. C. arts. 2317. 1 and 2322 and

the negligence theory of La. C. C. art. 2315. Rainey v. Steele, 10- 2154, p. 4 ( La.

App. 1st Cir. 8/ 17/ 11) ( unpublished), 2011 WL 3629360, at * 4; see also Vinccinelli

1 Smith v. Northshore Regional Medical Center, Inc., 14- 0628 ( La. App. 1st Cir. 1/ 26/ 15), 170
So. 3d 173, 175; Bell v. Carencro Nursing Home, Inc., 16- 0190 ( La. App. 3d Cir. 9/ 28/ 16) 202
So. 3d 499, 501, writ denied, 16- 1918 ( La. 12/ 16/ 16), 212 So. 3d 1170; Neyrey v. Touro Infirmary,
94- 0078 ( La. App. 4th Cir. 6/ 30/ 94), 639 So. 2d 1214, 1215; Reynolds v. St. Francis Medical
Center, 597 So. 2d 1121, 1122 ( La. App. 2d Cir. 1992); LeBlanc v. Alton Ochsner Medical
Foundation, 563 So. 2d 312, 313- 14 ( La. App. 5th Cir. 1990); Bordelon v. Southern Louisiana
Health Care Corp., ( La. App. 3d Cir.), 467 So. 2d 167, 169, writ denied, 469 So. 2d 989 (La. 1985).

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v. Musso, 01- 0557 ( La. App. 1st Cir. 2/ 27/ 02), 818 So. 2d 163, 165, writ denied, 02-

0961 ( La. 6/ 7/ 02), 818 So. 2d 767.
In order to prevail under either theory, the

plaintiff has the burden of proving that: ( 1) the property which caused the damage
was in the " custody" of the defendant; ( 2) the property had a condition that created

an unreasonable risk of harm to persons on the premises; ( 3) the unreasonably

dangerous condition was a cause in fact ofthe resulting injury; and (4) that defendant
had actual or constructive knowledge of the risk. Id.

In support of their motion for summary judgment, defendants presented the

affidavit of a forensic architect to establish the OLAH premises were built in

compliance with all codes applicable at the time of its construction in 1949- 50.

Defendants also introduced the affidavit of Jay Breaux, OLAH' s facilities manager,

who stated that since 2008, he has personally inspected the interior and exterior of

the Clinic multiple times weekly and was unaware of any defect or unreasonably

dangerous condition at the entryway into the Clinic. Additionally, Mr. Breaux stated
no complaints, accidents,
or injuries involving the Clinic entryway have been

reported, either before or after plaintiff' s June 10, 2014 accident, a period in excess

of sixty years.

Once defendants presented evidence establishing OLAH had no actual or

constructive knowledge of a defect in the Clinic entryway, plaintiff was required to

come forward with factual evidence sufficient to establish the existence of a genuine

issue of material fact regarding whether OLAH possessed actual or constructive

notice of a defect on its premises. See La. C. C. P. art. 966( D)( 1). Our de novo review

indicates plaintiff produced no evidence whatsoever to show OLAH possessed

actual or constructive knowledge of any such defect. In the absence of evidence

establishing a genuine issue of material fact regarding the essential element of

notice, defendants were entitled to summary judgment dismissing plaintiff' s claims

as a matter of law 2 See Alvarado, 217 So. 3d at 435; McCants v. Zodiac

Development, 07- 0740, pp. 4- 5 ( La. App. 1st Cir. 12/ 21/ 07), 2007 WL 4465774, at

4- 5 ( unpublished).

CONCLUSION

For these reasons, the district court judgment granting defendants' motion for

summary judgment and dismissing plaintiff' s claims against defendants, with

prejudice, is affirmed. All costs of this appeal are assessed to plaintiff, Janey Yates.
AFFIRMED.

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Having concluded plaintiff failed to establish the existence of a genuine issue of material fact as
to the essential element of notice, it is unnecessary for this court to address plaintiff s assignments
of error numbers four to six. These assignments concern the alleged existence of a defect and the
exclusion of the opinions of plaintiff' s expert witness with respect to that issue. A proponent for
summary judgment is not required to negate all of the essential elements of the adverse party' s
claim. It is only necessary to point out to the court the absence of factual support for at least one
of the elements essential to the adverse party' s claim, action, or defense, which defendants have
done in this case with respect to the essential element of notice. See La. C. C. P. art. 966( D)( 1);
Alexander v. Toyota Motor Sales, U.S.A., 13- 0756 ( La. 9/ 27/ 13), 123 So. 3d 712, 714- 15.

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