Tamara McGee v. Ashford Place Apartments, LLC

Judgment rendered November 16, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,795-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

TAMARA MCGEE Plaintiff-Appellant

versus

ASHFORD PLACE Defendant-Appellee
APARTMENTS, LLC

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2018-3105

Honorable Alvin Rue Sharp, Judge

*****

THE BRUSCATO LAW FIRM Counsel for Appellant
By: John F. Bruscato

LEWIS, BRISBOIS, BISGAARD & SMITH Counsel for Appellee
By: Michael L. Barras
Cynthia G. Sonnier

*****

Before MOORE, STONE, and STEPHENS, JJ.

STONE, J.

This appeal from the Fourth Judicial District Court, the Honorable

Alvin Sharp presiding, regards that court’s judgment granting the

defendant’s motion for summary judgment (“MSJ”) and dismissing the

plaintiff’s personal injury lawsuit with prejudice. The plaintiff, Tamara

McGee, was a resident at the apartment complex owned by the defendant,

Ashford Place Apartments, LLC. While the bathtub was filling with hot

water, the plaintiff suffered a seizure in the bathroom and fell into the

bathtub; as a result, she suffered second and third degree burns to her leg.

For the reasons stated herein, we reverse the judgment of the trial court.

FACTS

To establish the defendant’s fault in causing her injuries, the plaintiff

alleged that the water that burned her was 140 degrees Fahrenheit,1 and that

the defendant’s employee: (1) improperly installed the water heater by

failing to connect it to the scald prevention valve which limits temperature to

125 degrees; and/or (2) subsequently adjusted the temperature of the water

heater to 140 degrees, an unreasonably dangerous water temperature; and/or

(3) failed to heed the warning on the water heater that severe burns

(scalding) could occur if temperature reached or exceeded 125 degrees.

The defendant’s MSJ asserted that the plaintiff cannot prove the water

temperature or the water heater temperature setting at the time of the

incident. This, the defendant contends, precludes the plaintiff from

establishing the prima facie case for negligence. The MSJ further asserts that

the plaintiff cannot prove that the defendant knew or should have known of

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All references to temperature for the remainder of this opinion are degrees
Fahrenheit.

any allegedly dangerous condition of the water heater, and that such is also

fatal to the plaintiff’s claim.

In her opposition to summary judgment, the plaintiff submitted her

own affidavit, which is outlined in this paragraph. The defendant, through its

employee, installed a new water heater in the plaintiff’s apartment during

her tenancy, about three months before the incident. Between the time of the

installation and the incident, she complained to the defendant that the water

was too cool for bathing, and that defendant’s employee increased the

temperature setting on the water heater without notifying plaintiff of the

specific temperature to which the setting was increased. At no time before

or after the incident did the plaintiff or anyone on her behalf adjust the

thermostat to 140 degrees. The plaintiff first learned of that temperature

setting after she returned from the hospital.

The plaintiff also submitted the affidavit of Kenneth Green (“Mr.

Green”), a “Certified Building Official.” His testimony is outlined in this

paragraph. After the incident, Mr. Green examined the water heater and

found that both heating elements were set at 140 degrees, and the water

temperature coming out of the faucet was 139 degrees. He also found a

conspicuous warning label on the water heater stating that “[w]ater

temperature over 125 degrees can cause severe burns instantly or death from

scalds. Children, disabled, and elderly are at highest risk of being scalded.”

This warning label is depicted in a photograph attached to Mr. Green’s

affidavit. Additionally, he found that the temperature and pressure relief

valve was not connected; had this valve been connected any water coming

out of the heater above 125 degrees would have been diverted – and not

come out of the faucet. Subsequently, in a second inspection, Mr. Green had
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the defendant’s personnel adjust the temperature setting to 125 degrees, and

thereupon Mr. Green measured the temperature coming out of the faucet

consistently at 118 degrees.

The plaintiff additionally submitted the affidavit of Dr. James Wetzel

(“Dr. Wetzel”), which is outlined in this paragraph. Dr. Wetzel is

experienced in treating thermal injuries. He stated that a scalding injury can

result from contact with water at or above 120 degrees, and that the “general

consensus in the medical literature is that exposure to water greater than 120

degrees even for brief amounts of time can result in burn injury.” Finally,

Dr. Wetzel opined that the plaintiff’s injuries would not have occurred if the

water temperature had been below 120 degrees.

DISCUSSION

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, 814. 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.

Furthermore, “[i]n determining whether an issue is genuine, a court

should not consider the merits, make credibility determinations, evaluate

testimony, or weigh evidence. Marioneaux v. Marioneaux, 52,212 (La. App.
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2 Cir. 8/15/18), 254 So. 3d 13, 20-21. The prohibition on making credibility

determinations on summary judgment extends to expert affidavits admitted

without objection. Aziz v. Burnell, 21-187 (La. App. 3 Cir. 11/3/21), 329 So.

3d 963; Thompson v. Center for Pediatric and Adolescent Med., LLC 17-

1088 (La. 1 Cir. 3/15/18), 241 So. 3d 441. Finally, the court must draw

those reasonable inferences from the undisputed facts which are most

favorable to the party opposing the motion; likewise, all doubt must be

resolved in the opposing party’s favor. Wyrick v. Golden Nugget Lake

Charles, LLC, 20-0665 (La. App. 1 Cir. 12/30/20), 317 So. 3d 708.

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

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).

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The duty-risk analysis is the standard negligence analysis employed in

determining whether to impose liability under La. C.C. art. 2315. Mathieu v.

Imperial Toy Corp., 94-0952, p. 4 (La. 11/30/94), 646 So. 2d 318, 321. This

approach provides an analytical framework for evaluation of liability and

requires proof by the plaintiff of five separate elements: (1) the defendant

had a duty to conform his conduct to a specific standard (the duty

element); (2) the defendant’s conduct failed to conform to the appropriate

standard (the breach element); (3) the defendant’s substandard conduct

was a cause in fact of the plaintiffs injuries (the cause-in-fact element);

(4) the defendant’s substandard conduct was a legal cause of the plaintiffs

injuries (legal cause); and (5) the actual damages (the damages element).

Fowler v. Roberts, 556 So. 2d 1, 4 (La. 1989), reh’g granted on other grounds

and original opinion reinstated as supplemented, 556 So. 2d at 13 (La.

1990); Ebarb v. Matlock, 46,243 (La. App. 2 Cir. 5/18/11), 69 So. 3d

516, writ denied, 11-1272 (La. 9/23/11), 69 So. 3d 1164.

The plaintiff would bear the burden of proof at trial. Thus, to avoid

summary judgment, she had to introduce--for the purpose of summary

judgment--prima facie evidence of the matters addressed in the defendant’s

MSJ. La. C.C.P. art. 966(D)(1). The plaintiff satisfied that burden.

The plaintiff’s affidavit attests that: (1) she found the temperature

setting at 140 degrees after the accident; and (2) neither she nor anyone on

her behalf adjusted the temperature after the accident (but before her

observation of the temperature setting). Kenneth Green’s affidavit states that

he measured the water temperature coming out of the faucet while the

temperature was set at 140 degrees, and found that the actual temperature

was 139 degrees. This affidavit testimony is sufficient for a reasonable juror
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to conclude that, at the time of the accident, the heater was set at 140 degrees

and the actual water temperature was 139 degrees. Dr. Wetzel’s affidavit

testimony is sufficient for a reasonable juror to conclude that it was indeed

the water that scalded the plaintiff.

Furthermore, the plaintiff’s affidavit testimony that the defendant’s

employee installed the water heater and later adjusted its temperature setting

is sufficient for a reasonable juror to conclude that the defendant, through its

employee, knew or should have known that the temperature was set at 140

degrees. Kenneth Green’s affidavit testimony that the water heater has a

conspicuous warning that temperatures above 125 degrees can cause severe

injuries or death is sufficient for a reasonable juror to conclude that the

defendant’s employee should have known that 140 degrees was dangerously

hot.

Additionally, Kenneth Green’s affidavit states that the temperature

relief valve: (1) was not connected; but (2) would have been connected had a

qualified plumber done the installation; and (3) would have prevented the

plaintiff’s injuries had it been properly connected. This suffices for a

reasonable juror to conclude that the defendant was negligent in sending an

unqualified worker to install the water heater and/or that the worker was

negligent in failing to properly connect the safety valve.

The defendant’s motion for summary judgment is does not negate all

genuine issues of material fact and should have been denied. However, we

take moment to explain why the analysis suggested to this court by the

defendant is out of bounds on summary judgment. First, the defendant

suggests that there is no evidence of the temperature of the bathwater that

allegedly burned the plaintiff. This suggestion is incorrect. As explained
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above, a reasonable juror could infer from the plaintiff’s affidavit testimony

that the temperature was set at 140 degrees at the time of the incident. A

reasonable juror could also infer from Mr. Green’s affidavit that, at the time

of the incident, the actual temperature of the water coming out of the bathtub

faucet was 139 degrees. To hold that this affidavit testimony is insufficient

would run afoul of this Court’s duty to draw all reasonable inferences in

favor of the party opposing the motion for summary judgment. Wyrick,

supra.

Second, the defendant suggests that the plaintiff’s affidavit testimony

in general lacks credibility because: (1) she waited six weeks after the

incident before reporting it to the defendant; (2) she did not offer an affidavit

by her houseguest to corroborate her own testimony of what happened; (3)

she admittedly did not remember any of the incident after the onset of her

seizure; and (4) she apparently continued using the bathtub after the accident

with the maximum temperature still set at 140 degrees. For this court to

countenance any of those arguments would be to violate the prohibition

against weighing evidence and making credibility determinations on

summary judgment. Marioneaux, supra. Also, the plaintiff’s use of the

bathtub after the incident despite the 140 degree maximum temperature

setting proves nothing. It merely established the upper temperature limit of

water coming out of the heater; it did not necessarily cause all water coming

out of the faucets to be 140 degrees. This court is required to infer that, in

using the bathtub after her accident, the plaintiff used the faucet to set the

temperature safely below the maximum. Wyrick, supra. We are also

compelled to alternatively infer that the plaintiff may have filled the tub at

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maximum temperature but allowed the water to cool to a safe temperature

before she entered. Id.

Third, the defendant attacks the credibility of the plaintiff’s affidavit

testimony that, pursuant to her request, the defendant sent an employee to

adjust her water temperature upward (prior to the accident). The ground for

this attack is the absence of the plaintiff’s request from the defendant’s work

order ledger. Again, this is an invitation for the court to weigh evidence and

determine credibility on summary judgment and is, therefore, inappropriate

and must be disregarded. Id.

The defendant also asks this court to question the credibility of the

plaintiff’s expert’s affidavit because of an attachment thereto which states

that the plaintiff could have sustained second-degree burns if she remained

immersed in 120 degree water for nine minutes. Countenancing this

argument would run afoul of the prohibition against making credibility

determinations on summary judgment. Aziz, supra; Thompson, supra.

Furthermore, this argument is purely hypothetical – the plaintiff’s evidence

constitutes prima facie proof that the water was 139 degrees at the time of

the accident. What effect 120 degree water would have had on the plaintiff

had she been immersed in it for nine minutes appears speculative and

immaterial.

CONCLUSION

The judgment of the trial court is REVERSED, and this matter is

remanded for further proceedings in accordance with this opinion. All costs

of this appeal are assessed to the defendant, Ashford Place Apartments,

LLC.

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