Brenda Baham, et vir v. Compass Health Brand Corp.

Judgment rendered August 10, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,693-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

BRENDA BAHAM, ET VIR Plaintiffs-Appellants

versus

COMPASS HEALTH BRAND Defendants-Appellees
CORP., ET AL

*****

Appealed from the
Sixth Judicial District Court for the
Parish of East Carroll, Louisiana
Trial Court No. 23,271

Honorable Angela L. Claxton, Judge

*****

KELLY & TOWNSEND, LLC Counsel for Appellants,
By: Keenan K. Kelly Brenda Baham, and
Curtis Baham

KEOGH COX & WILSON, LTD Counsel for Appellee,
By: Chad Anthony Sullivan Compass Health Brand
Corp.

MAYER, SMITH & ROBERTS, L.L.P. Counsel for Appellee,
By: Deborah Shea Baukman Midsouth Medical, Inc.

*****

Before PITMAN, STONE, and THOMPSON, JJ.

THOMPSON, J.

A woman with preexisting back injuries was using a prescribed

rolling walker that included parking brakes and a seat, when she fell while

trying to sit down. She had used the walker for over three months without

incident. However, she asserted her fall and resulting injuries were caused

by the rolling walker’s brakes not functioning properly when she attempted

to sit, which caused the roller to move away from her and her subsequent fall

to the floor. The injured woman and her husband filed suit against both the

manufacturer of the walker and its local distributor. Asserting the

inapplicability of the Louisiana’s product liability laws against a retailer, as

well as the lack of negligence by its employee, the retailer filed a motion for

summary judgment, which the trial court granted, dismissing all claims

against it. Conceding the inapplicability of any claims for product liability

against the retailer, the plaintiffs appeal only the granting of the motion for

summary judgment on the negligence claims. Finding no genuine issue of

material fact regarding any negligence by the retailer, and for reasons set

forth in greater detail below, we affirm the trial court’s grant of summary

judgment on the plaintiffs’ negligence claims.

FACTS AND PROCEDURAL HISTORY

On May 20, 2019, Brenda Baham (“Mrs. Baham”) underwent a

lumbar fusion surgery, and on May 30, 2019, her surgeon prescribed a

Rollator, which is a walker with four wheels and a hand brake, to assist her

with safe ambulation. The Rollator was manufactured by defendant

Compass Health Brand Corp. (“Compass”) and purchased from defendant

Midsouth

Medical, Inc. (“Midsouth”). The Rollator was assembled and tested in

Midsouth’s office before it was delivered to Mrs. Baham. On May 30, 2019,

the Rollator was delivered by Damon Tyler (“Tyler”), an employee of

Midsouth. Tyler gave Mrs. Baham instructions on how to use the device,

specifically, how to walk, sit, and use the hand brakes. Tyler told Mrs.

Baham that if her balance was not good, then she might move the Rollator

too fast, and it would get away from her. He explained under those

circumstances, she could use the hand brakes to slow it. Mrs. Baham was

also given the product manual for the Rollator, which included similar

instructions.

The Rollator has two hand brakes that, when squeezed, function like

hand brakes on a bicycle. The manual states that the hand brakes should not

be used as a primary stopping tool, but “it can be used if needed but is

primarily designed to maintain a stopped stance.” The device also has a

parking brake, which is engaged by the user pressing down on the brake

handles until the handle locks into place. The manual instructs users to

engage the parking brakes and gently ease into the seat of the Rollator by

using the hand grips for support. Mrs. Baham testified that she read the

manual and that she never felt the need to have the brakes adjusted during

the time of her use. She testified that she had never experienced any

problems with the brakes or any other aspect of the Rollator prior to the

accident and that it had functioned properly.

On October 10, 2019, over four months after she began using the

Rollator, Mrs. Baham was using the device while at work. She was

removing paperwork from a filing cabinet when she says she locked the

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brakes of the Rollator. When she attempted to sit down, it rolled out from

under her, and she fell to the ground. She claims the fall aggravated or

exacerbated her preexisting lumbar spine injury. She asserts that after her

fall, it was determined that the Rollator brakes were not functioning properly

and would not lock the wheels. The record does not contain any expert

testimony or evidentiary support for Mrs. Baham’s assertion that the brakes

were not functioning on the day of her fall.

Mrs. Baham and her husband, Curtis Baham (hereinafter, “plaintiffs”),

filed suit against Compass and Midsouth, asserting claims of negligence and

products liability. Midsouth filed a motion for summary judgment, arguing

that as a seller, it is not subject to liability under the Louisiana Products

Liability Act and that there was no evidence against it for negligence.

Plaintiffs and Compass opposed the motion for summary judgment. The

trial court granted Midsouth’s motion for summary judgment as to the

plaintiffs’ products liability and negligence claims and dismissed the claims

with prejudice. Plaintiffs are now appealing that judgment but only

regarding the claims for negligence. They have not appealed the claims of

products liability against Midsouth.

ASSIGNMENTS OF ERROR

Plaintiffs assert two assignments or error, namely:

1. The trial court erred in ruling that there were no genuine issues of
material fact as to plaintiff-appellants’ negligence claims against
defendant-appellee, Midsouth Medical, Inc.; and

2. The trial court erred in granting defendant-appellee, Midsouth
Medical, Inc.’s Motion for Summary Judgment on plaintiff-
appellant’s negligence claims.

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DISCUSSION

Plaintiffs argue that the district court improperly granted Midsouth’s

motion for summary judgment and finding there was no genuine issue of

material fact as to their negligence claims. Due to the fact that both of the

plaintiffs’ assignments of error involve the same factual basis and legal

analysis, we will address them together.

Appellate courts review motions for summary judgment de novo,

using the same criteria that govern the district court’s consideration of

whether summary judgment is appropriate. Peironnet v. Matador Res. Co.,

12-2292 (La. 6/28/13), 144 So. 3d 791; Bess v. Graphic Packaging Int’l,

Inc., 54,111 (La. App. 2 Cir. 11/17/21), 331 So. 3d 490. A motion for

summary judgment is a procedural device used when there is no genuine

issue of material fact for all or part of the relief prayed for by a litigant.

Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So. 3d 1002. The procedure is

favored and shall be construed to secure the just, speedy, and inexpensive

determination of actions. La. C.C.P. art. 966(A)(2).

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 if it potentially ensures or

precludes recovery, affects a litigant’s ultimate success, or determines the

outcome of the legal dispute. A genuine issue of material fact is one as to

which reasonable persons could disagree; if reasonable persons could reach

only one conclusion, there is no need for trial on that issue and summary

judgment is appropriate. Maggio v. Parker, 17-1112 (La. 6/27/18), 250 So.

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3d 874; Jackson v. City of New Orleans, 12-2742 (La. 1/28/14), 144 So. 3d

876, cert. denied, 574 U.S. 869, 135 S. Ct. 197, 190 L. Ed. 2d 130 (2014);

Bess, supra. In determining whether an issue is genuine, a court should not

consider the merits, make credibility determinations, evaluate testimony, or

weigh evidence. Chanler v. Jamestown Ins. Co., 51,320 (La. App. 2 Cir.

5/17/17), 223 So. 3d 614, writ denied, 17-01251 (La. 10/27/17), 228 So. 3d

1230; Bess, supra.

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.

La. C.C.P. art. 966(D)(1). Supporting and opposing affidavits shall be made

on personal knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify

to the matters stated therein. La. C.C.P. art. 967(A). When a motion for

summary judgment is made and supported as provided above, an adverse

party may not rest on the mere allegations or denials of his pleading, but his

response, by affidavits or as otherwise provided above, must set forth

specific facts showing that there is a genuine issue for trial. If he does not so

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respond, summary judgment, if appropriate, shall be rendered against him.

La. C.C.P. art. 967(B).

Midsouth filed a motion for summary judgment, asking the trial court

to determine that there were no genuine issues of fact and that it was entitled

to judgment on plaintiffs’ negligence and products liability claims against it.

The trial court granted the motion for summary judgment. Plaintiffs have

chosen to appeal only the negligence claim made against Midsouth and now

argue that there is sufficient evidence that Midsouth was negligent,

specifically in its duty to properly instruct Mrs. Baham on the use of the

Rollator.

To determine liability in a negligence claim, we apply the duty-risk

analysis, which requires the plaintiffs to prove that the defendant’s conduct

was a cause-in-fact of the resulting harm, that defendant owed a duty of care

to the plaintiffs, that duty was breached, and that the risk of harm was within

the scope of protection afforded by the duty breached. Mathieu v. Imperial

Toy Corp., 94-0952 (La. 11/30/94), 646 So. 2d 318; Carney v. Eldorado

Resort Casino Shreveport, 48,761 (La. App. 2 Cir. 1/29/14), 132 So. 3d 546.

A critical inquiry is whether a causal relationship exists between the

plaintiff’s harm and the alleged negligent conduct of the defendant. Cause-

in-fact is generally a “but for” inquiry, which requires plaintiff to show he

would not have sustained the injury but for defendant’s conduct. Carney,

supra. In a negligence action, each inquiry must be affirmatively answered

in order for plaintiff to recover. Id.

In the present matter, plaintiffs argue that Midsouth’s employee,

Tyler, negligently instructed Mrs. Baham on the use of the Rollator. He

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testified that he instructed her that in the specific situation where she was

moving too fast, she could use the hand brakes to slow herself. Mrs. Baham

contends that this instruction is contrary to the Rollator’s operating

instructions. She contends it is the overuse of the hand brakes that caused

wear and tear on the brakes so that they did not lock on the day of her

accident. There was no evidence presented at trial to support this theory.

The record reveals that Tyler testified he had never read the Rollator’s

instruction manual, despite instructing patients on the device’s use. As to

his instruction to Mrs. Baham regarding the use of the hand brakes, the

device manual states “DO NOT use the hand brake as a primary stopping

tool. It may be used if needed but is primarily designed to maintain a

stopped stance.” Despite Mrs. Baham’s argument to the contrary, we do not

find that Tyler’s instructions to Mrs. Baham contravene the instructions

contained in the user manual. An occasional use of the hand brakes to slow

speed or stop, as instructed by Tyler, is contemplated by the manual.

Moreover, we find that there is an absence of factual support for the

causation element of plaintiffs’ negligence claim. Plaintiffs have not

provided any evidence that supports the theory that Mrs. Baham’s use of the

hand brakes could be considered “overuse” and that this alleged overuse

caused the brakes to fail on the day of her accident. There was no evidence

or any inspection or observed failure of the functioning of the brakes.

Although Tyler’s failure to read the Rollator’s manual may be indicative of a

lack of thorough familiarity with every aspect of the Rollator, there is no

evidence in the record that he gave Mrs. Baham improper instructions or

directions contrary to those provided in the manual by the manufacturer.

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Notably, Mrs. Baham admitted that she read the instruction manual after it

was provided by Tyler, meaning she was aware of the warnings and

instructions provided by the device’s manufacturer, including those

instructions regarding adjustments or maintenance of the brakes. This lack

of causation evidence is fatal to the plaintiffs’ negligence claim against

Midsouth, and therefore, summary judgment on this matter is appropriate.

CONCLUSION

For the above reasons, we affirm the trial court’s judgment. Costs

of this appeal are assessed to plaintiffs, Brenda Baham and Curtis Baham.

AFFIRM.

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