Toni Lathon v. Leslie Lakes Retirement Center and TDC Specialty Underwriters

Judgment rendered September 21, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,479-CW
No. 54,515-CW
(Consolidated Cases)

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

TONI LATHON Plaintiff- 1st Applicant

versus

LESLIE LAKES RETIREMENT Defendants- 2nd
CENTER AND TDC SPECIALTY Applicants
UNDERWRITERS

*****

On Application for Writs from the
Second Judicial District Court for the
Parish of Bienville, Louisiana
Trial Court No. 45674

Honorable Walter Edward May, Jr., Judge

*****

RICKEY KENARD SWIFT Counsel for Plaintiff-
1st Applicant

GOLD, WEEMS, BRUSER, Counsel for Defendants-
SUES & RUNDELL 2nd Applicants,
By: Sarah Spruill Couvillon Leslie Lakes Care Center,
Connor Charles Headrick L.L.C. d/b/a Leslie Lakes
Brandon Ashley Sues Retirement Center and
TDC Specialty Insurance
Company

*****

Before MOORE, STONE, and ROBINSON, JJ.

STONE, J.

This is a personal injury lawsuit wherein Toni Lathon (the “plaintiff”)

slipped and fell on the premises of the defendant, Leslie Lakes Retirement

Center. Allegedly, the plaintiff fell because she stepped in liquid Kool-Aid

spilled by the defendant’s employee, Latoria Willis. The parties each filed a

motion for summary judgment, both of which the trial court denied. For the

reasons stated herein, we: (1) reverse the trial court’s denial of the

defendant’s MSJ; and (2) affirm the trial court’s denial of the plaintiff’s

MSJ.

FACTS AND PROCEDURAL HISTORY

In the trial court, the defendant filed an exception of no cause of

action arguing that: (1) it is statutorily immune from liability, except for its

acts of gross negligence; and (2) the plaintiff’s allegations, if proven, would

not constitute gross negligence. The trial court denied the exception and this

court denied the defendant’s writ application challenging that ruling. The

parties later filed cross motions for summary judgment,1 and the trial court

denied both of them. This court issued a supervisory writ ordering the trial

court to issue a per curiam opinion regarding whether La. R.S. 29:771(B)(2),

the healthcare provider immunity provision in the Louisiana Health

Emergency Powers Act, applies to the plaintiff’s claim.2 The trial court ruled

that the statute is applicable, but denied the defendant’s MSJ nonetheless.

The trial court also denied the plaintiff’s MSJ.

1
Motion for summary judgment is hereinafter abbreviated as “MSJ.”
2
Notably, the plaintiff incorrectly states that the trial court granted an exception
of res judicata declaring consideration of the issues raised by the defendant’s MSJ to be
barred; in reality, the trial court denied the MSJ due to the supposed existence of a
genuine issue of material fact. Likewise, there is there no legal basis for applying res
judicata as a bar to the defendant’s MSJ.

The parties both filed writ applications challenging the denial of their

respective MSJs. We granted the writs to docket.

Motions for summary judgment

After an opportunity for adequate discovery, a motion for summary

judgment shall be granted if the motion, memorandum, and supporting

documents 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).

A fact is ‘material’ when its existence or nonexistence may be essential to

plaintiff’s cause of action under the applicable theory of recovery.

Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So. 3d 791. A

genuine issue is one regarding which reasonable persons could disagree; if

reasonable persons could reach only one conclusion, there is no need for a

trial on that issue and summary judgment is appropriate. Hines v. Garrett, 04-

0806 (La. 6/25/04), 876 So. 2d 764.

La. C.C.P. art. 966(D)(1) allocates the burden of proof on a motion for

summary judgment as follows:

The burden of proof rests with the mover. Nevertheless, if
the mover will not bear the burden of proof at trial on the
issue that is before the court on the motion for summary
judgment, the mover’s burden on the motion does not
require him to negate all essential elements of the adverse
party’s claim, action, or defense, but rather to 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. The burden is on the adverse party to produce
factual support sufficient to establish the existence of a
genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.

The only documents that may be filed in support of or in opposition to

the motion are pleadings, memoranda, affidavits, depositions, answers to

interrogatories, certified medical records, written stipulations, and

2

admissions. La. C.C.P. art. 966(A)(4). Furthermore, the court may consider

only those documents filed in support of or in opposition to the motion for

summary judgment and shall consider any documents to which no objection

is made. La. C.C.P. art. 966(D)(2).

Statutory immunity

At all times relevant to these proceedings, La. R.S. 29:771(B)(2)(c)

stated:

During a state of public health emergency, any health care
providers shall not be civilly liable for causing the death
of, or injury to, any person or damage to any property
except in the event of gross negligence or willful
misconduct. (Emphasis added).

By its terms, this provision applies: (1) in favor of “any healthcare

provider”; (2) regarding any personal injury or property damage claim;

which (3) arises during a public health emergency.

“As with the interpretation of any statute, the only question is the

expressed intent of the legislature.” Leisure Recreation & Ent., Inc. v. First

Guar. Bank, 21-00838 (La. 3/25/22), 339 So.3d 508. (emphasis added).

“When a law is clear and unambiguous and its application does not lead to

absurd consequences, the law shall be applied as written and no further

interpretation may be made in search of the intent of the legislature.” La.

C.C. art. 9. There is an even stronger admonition against judicial rewriting

of legislation in the revised statutes: “[w]hen the wording of a Section is

clear and free of ambiguity, the letter of it shall not be disregarded under the

pretext of pursuing its spirit.” La. R.S. 1:4.

Furthermore, “the object of the court in construing a statute is to

ascertain the legislative intent and, where a literal interpretation would

produce absurd consequences, the letter must give way to the spirit of the
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law and the statute construed so as to produce a reasonable result.” SWAT 24

Shreveport Bossier, Inc. v. Bond, 00-1695 (La. 6/29/01), 808 So. 2d 294,

302. The Supreme Court has in effect defined “absurd consequences” as

consequences demonstrably incompatible with the legislature’s expressed

intent:

[T]he plain meaning of legislation should be conclusive,
except in the rare cases in which the literal application of a
statute will produce a result demonstrably at odds with the
intentions of its drafters in which case the intention of the
drafters, rather than the strict language controls. (Emphasis
added; internal bracketing and quotation marks omitted).

State v. Benoit, 01-2712 (La. 5/14/02), 817 So. 2d 11.

Gross negligence

Gross negligence has a well-defined meaning in Louisiana law:

Louisiana courts have frequently addressed the concept
of gross negligence. Gross negligence has been defined as
the want of even slight care and diligence and the want of
that diligence which even careless men are accustomed to
exercise. Gross negligence has also been termed the entire
absence of care and the utter disregard of the dictates of
prudence, amounting to complete neglect of the rights of
others. Additionally, gross negligence has been described
as an extreme departure from ordinary care or the want of
even scant care. There is often no clear distinction
between…willful, wanton, or reckless…conduct and
gross negligence, and the two have tended to merge and
take on the same meaning. Gross negligence, therefore,
has a well-defined legal meaning distinctly separate, and
different, from ordinary negligence.3

Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099 (La.

7/5/94), 639 So. 2d 216. Additionally, the language emphasized in the

above quote from Ambrose makes clear that the concept of gross negligence

subsumes willful, wanton, and reckless misconduct.

3
Emphasis added; internal citations, quotation marks, and bracketing omitted.
4

Analysis

It is undisputed that a public health emergency was in effect at the

time of the plaintiff’s fall, that the defendant is a healthcare provider, and

that the plaintiff’s cause of action sounds in personal injury. Thus, it is

undisputed that, if the language of the statute is given literal effect,

immunity applies in favor of the defendant. However, the plaintiff argues

that, despite the statute’s language, its immunity should not extend to her

claim because it is not a medical malpractice claim, but instead, a premises

liability claim. In support, the plaintiff cites sources from other states and

from the federal Department of Health and Human Services. We reject the

plaintiff’s argument. The language of the statute is clear and unambiguous

and its application to the plaintiff’s claim does not lead to consequences

demonstrably incompatible with the expressed intent of the statute. State v.

Benoit, supra. The statute’s express extension of immunity to property

damage claims demonstrates that the legislative purpose of the statute

reaches far beyond medical malpractice. The purpose of the statute is thus to

alleviate the liability burden on healthcare providers during public health

emergencies, such as the COVID 19 pandemic, which dangerously

overburdened the healthcare system. Moreover, literal application of the

statute in this case is easily compatible with that legislative intent because

the undisputed facts establish a causal connection between the defendant’s

COVID protocols and the plaintiff’s claim. When Willis spilled the Kool-

Aid, she was engaged in delivering food to patients’ rooms because patients

were confined therein for COVID safety reasons. That causal connection to

COVID protocols places the plaintiff’s claim easily within the purpose of the

statute, and makes it reasonable to apply the immunity statute in this case.
5

The trial court was correct in holding that the statute is applicable, even

though the consequences in this case may be harsh and unfair.

Furthermore, the plaintiff has failed to carry her burden (under La.

C.C.P. art. 966(D)(1)) of introducing prima facie evidence of each and every

element of gross negligence. Only the security camera videos are in

evidence, and no reasonable factfinder could conclude that they (the videos)

constitute prima facie proof of gross negligence. Accordingly, there is no

genuine issue of material fact.

However, the plaintiff in effect argues that, nonetheless, the defendant

is not entitled to judgment as a matter of law. In particular, the plaintiff filed

an “exception of res judicata" against the defendant’s MSJ. The plaintiff

argues that the trial court’s previous denial of the defendant’s exception of

no cause of action precludes the defendant from filing an MSJ seeking the

same outcome.

The plaintiff’s argument manifests utter confusion of the doctrine of

res judicata (which applies to final judgments)4 and the law of the case

doctrine (which applies to interlocutory judgments rendered by a court of

appeal).5 Res judicata does not apply to non-appealable interlocutory

judgments such as the denial of an exception of no cause of action. Hall v.

James, 43,263 (La. App. 2 Cir. 6/4/08), 986 So. 2d 817; Lacas v. Monroe

Credit, LLC, 54,170 (La. App. 2 Cir. 12/15/21). The plaintiff’s exception of

res judicata is therefore meritless.

Furthermore, the law of the case doctrine is inapplicable. “[T]he [law

of the case] doctrine does not apply in the context of a trial court ruling on

4
La. R.S. 13:4231.
5
Babineaux, infra; Land, infra.
6

interlocutory issues.” Land v. Vidrine, 10-1342 (La. 3/15/11), 62 So. 3d 36,

42. (emphasis added). Nor does it attach on the basis of denial of writs. As

the Louisiana Supreme Court, in Babineaux v. Pernie-Bailey Drilling Co.,

261 La. 1080, 262 So. 2d 328, 332 (1972), explained:

The law of the case rule cannot supplant the Code of Civil
Procedure…[and]…only applies when the same issue is
presented to the same court that has previously decided
that issue in the same case which has not become res
judicata (Emphasis in original; internal citations and
quotation marks omitted).

The denial of writs is a decision to not decide the issues raised in the writ

application. Levine v. First Nat. Bank of Com., 06-0394 (La. 12/15/06), 948

So. 2d 1051.

Therefore, neither the trial court’s denial of the exception of no cause

of action nor our denial of writs on that decision can serve as the basis for

application of the law of the case doctrine. Id.; Babineaux, supra; Land,

supra.

CONCLUSION

The defendant’s MSJ is GRANTED, and the plaintiff’s MSJ is

DENIED. The plaintiff’s suit against the defendant is dismissed with

prejudice. All costs of this appeal/writ application are taxed to the plaintiff,

Toni Lathon.

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