Lionel Wayne Magee and Miyoko Magee v. IASIS Glenwood Regional Medical Center, LP

Judgment rendered August 9, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,157-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****
LIONEL WAYNE MAGEE and Plaintiffs
MIYOKO MAGEE

versus

IASIS GLENWOOD REGIONAL Defendant-
MEDICAL CENTER, LP Appellee

*****
Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2015-3359

Honorable Alvin R. Sharp, Judge
*****
THE LAW OFFICE OF JAMES M. WILKERSON Counsel for
By: James M. Wilkerson Plaintiff-Appellant,
Sarah E. Wilkerson Lionel Magee

LAW OFFICE OF RONALD K. COOK
By: Ronald K. Cook

HESSER & FLYNN, LLP Counsel for
By: David Cleveland Hesser Plaintiff-Appellee,
Miyoko Magee

BRAZEALE, SACHSE & WILSON, LLP Counsel for
By: Harry M. Moffett, IV Defendant-
Laura S. Achord Appellee, Iasis
Glenwood
Regional Medical
Center, LP

REICH, ALBUM & PLUNKETT, LLC Counsel for
By: Lawrence R. Plunkett, Jr. Defendant-
R. Andrew Davis Appellee, Hospital
Jerald L. Album Housekeeping
Systems, LLC
*****
Before STONE, COX, and HUNTER, JJ.

HUNTER, J.

Plaintiffs, Lionel Wayne Magee and Miyoko Magee, have appealed

two judgments granting separately-filed motions for summary judgment by

defendants, IASIS Glenwood Regional Medical Center and Hospital

Housekeeping System, LLC. For the following reasons, we reverse and

remand for further proceedings.

FACTS

Plaintiff, Lionel Wayne Magee (“Magee”), filed a lawsuit after he fell

in the hallway of IASIS Glenwood Medical Center, LP (“Glenwood”); his

wife, Miyoko Magee, filed a claim for damages for loss of consortium. In

his petition, Magee alleged on April 21, 2015, he had completed his

appointment in the cardiology department and was walking down a hallway

when he slipped and fell due to water and/or liquid on the floor surface. He

initially named Glenwood as the sole defendant, contending the hospital was

negligent for, inter alia, allowing a liquid substance to remain on the floor

and failing to warn others of the existence of the substance. He sought both

general and special damages related to the alleged injury.

On November 28, 2016, plaintiffs filed a supplemental and amending

petition for damages, adding Hospital Housekeeping Systems, L.L.C.

(“HHS”) as a defendant. Plaintiffs alleged HHS was liable for allowing a

dangerous condition to exist on the property it was responsible for

maintaining; failure to warn visitors of a known dangerous condition; failure

to inspect and maintain the premises; failure to take preventative measures in

preventing injury; and failure to exercise reasonable care.

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Subsequently, Glenwood and HHS filed separate motions for

summary judgment. Defendants argued Magee was unable to meet his

burden of proving the elements of his claims, and they were entitled to

summary judgment as a matter of law. The district court granted both

motions finding “the absence of any genuine issue as to any material fact,

and the moving parties are entitled to judgment as a matter of law under [La.

C.C.P. art.] 966.” The court further found “Glenwood [and HHS] acted

reasonably under the circumstances thereby substantiating the granting of

the Motion for Summary Judgment.”

Plaintiffs appeal.

DISCUSSION

Plaintiffs contend the district court erred in granting summary

judgment in favor of Glenwood. They argue issues of material fact remain

in dispute, and summary judgment is precluded in this case.

When considering rulings on summary judgment, courts apply a de

novo standard of review. Farrell v. Circle K Stores, Inc., 22-00849 (La.

3/17/23), 359 So. 3d 467; Bolden v. Tisdale, 21-00224 (La. 1/28/22), 347

So. 3d 697. Thus, we use the same criteria that govern the trial court’s

consideration of whether summary judgment is appropriate. Id. A trial court

must grant a motion for summary judgment if the pleadings, memoranda,

affidavits, depositions, answers to interrogatories, certified medical records,

written stipulations, and admissions 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).

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The summary judgment procedure is designed to secure the just,

speedy, and inexpensive determination of every action, except those

disallowed by La. CC.P. art. 969. La. C.C.P. art. 966(A)(2). The procedure is

favored and shall be construed to accomplish these ends. Id.

A genuine issue is one about which reasonable persons could

disagree. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So. 2d 764; Grisby

v. Jaasim II, LLC, 54,646 (La. App. 2 Cir. 9/21/22), 349 So. 3d 103, writ

denied, 22-01573 (La. 12/20/22), 352 So. 3d 87; Franklin v. Dick, 51,479

(La. App. 2 Cir. 6/21/17), 224 So. 3d 1130. In determining whether an issue

is genuine, a court should not consider the merits, make credibility

determinations, evaluate testimony, or weigh evidence. Grisby, supra;

Harris v. City of Shreveport, 53,101 (La. App. 2 Cir. 4/22/20), 295 So. 3d

978. A fact is “material” when its existence or nonexistence may be

essential to plaintiff’s cause of action under the applicable theory of

recovery. Facts are material if they potentially ensure or preclude recovery,

affect a litigant’s ultimate success or determine the outcome of the legal

dispute. Grisby, supra; Weaver v. City of Shreveport, 52,407 (La. App. 2

Cir. 12/19/18), 261 So. 3d 1079.

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. La. C.C.P. art. 966(D)(1). The burden is on the

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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. Id. When a motion for summary judgment is

made and supported as provided in La. C.C.P. art. 967(A), an adverse party

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

response, by affidavits or as otherwise provided in La. C.C.P. art. 967(A),

must set forth specific facts showing that there is a genuine issue for trial.

La. C.C.P. art. 967(B). If he does not so respond, summary judgment, if

appropriate, shall be rendered against him. Id.

This court has previously held that a hospital is not a “merchant”

under La. R.S. 9:2800.6. As a result, hospital liability in a slip and fall case

has been held to fall under the general negligence standards. Grinnell v. St.

Francis Med. Ctr., Inc., 48,249 (La. App. 2 Cir. 8/21/13), 156 So. 3d 117;

Holden v. La. State Univ. Med. Ctr.-Shreveport, 29,268 (La. App. 2 Cir.

2/28/97),690 So. 2d 985, writ denied, 97-0797 (La. 5/1/97), 693 So. 2d 730;

Reynolds v. St. Francis Med. Ctr., 597 So. 2d 1121 (La. App. 2 Cir. 1992).

Every act whatever of man that causes damage to another obliges him

by whose fault it happened to repair it. La. C.C. art. 2315. Under the

negligence standard, a hospital owes a duty to its visitors to exercise

reasonable care to keep the premises in a safe condition commensurate with

the particular circumstances involved; but the duty owed is less than that

owed by a merchant. Grinnell, supra; Holden, supra; Reynolds, supra. The

trial court must consider the relationship between the risk of a fall and the

reasonableness of the measures taken by the defendant to eliminate the risk.

Grinnell, supra; Adams v. La. State Univ. Health Sciences Ctr. Shreveport,

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44,627 (La. App. 2 Cir. 8/19/09), 19 So. 3d 512, writ denied, 09-2056 (La.

11/20/09), 25 So. 3d 798; Holden, supra.

In negligence cases, Louisiana courts utilize a duty/risk analysis to

determine whether liability exists. Under this analysis, the plaintiff must

prove 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 plaintiff’s

injuries (the cause-in-fact element); (4) the defendant’s substandard conduct

was a legal cause of the plaintiff’s injuries (the scope of duty element); and,

(5) proof of actual damages (the damages element). Farrell v. Circle K

Stores, Inc., 22-00849 (La. 3/17/23), 359 So. 3d 467; Malta v. Herbert S.

Hiller Corp., 21-00209 (La. 10/10/21), 333 So. 3d 384; Posecai v. Wal-Mart

Stores, Inc., 99-1222 (La. 11/30/99), 752 So. 2d 762. If the plaintiff fails to

prove any one element by a preponderance of the evidence, the defendant is

not liable. Id.

Herein, at trial, plaintiffs would bear the burden of proving the

elements of their claims against defendants. Thus, for Glenwood to prevail

on summary judgment, it was required to show an absence of factual support

for any of the elements of plaintiffs’ cause of action.

Generally, the owner or custodian of property has a duty to keep the

premises in a reasonably safe condition. The owner or custodian must

discover any unreasonably dangerous condition on the premises, and either

correct the condition or warn potential victims of its existence. Farrell v.

Circle K Stores, Inc., 22-00849 (La. 3/17/23), 359 So. 3d 467.

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In the instant case, it is undisputed Magee slipped, fell, and was

injured in a foreign substance on the floor of the hospital. However,

Glenwood contends Magee failed to present evidence the hospital failed to

act reasonably to eliminate the hazard prior to his fall. In support of its

motion for summary judgment Glenwood introduced into evidence its

contract with HHS, which showed HHS was responsible for providing floor

care in the hospital and for supervising its employees. Glenwood asserted as

follows:

This evidence substantiates the fact that IASIS Glenwood
retained the services of HHS as an independent contractor and
not as an employee. As such, IASIS Glenwood is not
vicariously liable for the alleged actions of HHS. Plaintiffs
have not put forth any evidence to dispute this. Further,
plaintiffs have no competent evidence to support their claim
that the accident was a direct result of any actions by the
hospital. IASIS Glenwood cannot be held responsible for
conditions on its premises created by an independently
contracted maintenance company. Accordingly, there is no
genuine issue of material fact, and IASIS Glenwood is entitled
to summary judgment as a matter of law.

In response to Glenwood’s motion for summary judgment, plaintiffs

asserted Glenwood breached its duty to take reasonable measures to monitor

its premises for spills/leaks and to eliminate a known risk. According to

plaintiffs, the record is devoid of any inspection procedures undertaken by

Glenwood or any enforcement thereof.

After reviewing this record, we find the existence of genuine issues of

material fact concerning whether Glenwood exercised reasonable care to

keep its premises in a safe condition. The evidence of record shows Magee

slipped, fell, and injured himself while walking down the hallway of the

hospital. Glenwood admittedly knew of the presence of water on the floor,

yet the only action it undertook was placing a call to HHS to notify it of the

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leak. The record is devoid of any evidence Glenwood made any effort to

monitor its premises until HHS completed the clean up process.

Further, the testimony of Magee, Tammy Banzo, and Luther Powell

established there were no hospital employees near the water to inspect the

area to ascertain the extent of the leakage or to warn patients, visitors, or

personnel of the presence of the water. Further, Magee, Banzo, and Powell

testified they did not see a wet floor sign nearby. Magee stated he did not

see the sign until a nurse brought the sign to his attention after he fell. Based

on Glenwood’s admissions and the summary judgment evidence, we find

reasonable persons could disagree on whether Glenwood’s actions were

reasonable. Consequently, we conclude a genuine issue of material fact

exists as to whether Glenwood acted reasonably in merely notifying HHS of

the existence of the leak, without taking further action. The existence of such

issues of material fact makes summary judgment inappropriate in this case.

Accordingly, we reverse the judgment and remand this matter for further

proceedings.

Plaintiffs also contend the district court erred in granting summary

judgment in favor of HHS. Plaintiffs argue whether HHS used reasonable

measures to eliminate the hazard is a genuine issue of material fact. In

response, HHS argues plaintiffs are unable to meet their burden of proof at

trial because the condition of the floor did not create an unreasonable risk of

harm as it was open and obvious.

The testimony of HHS employees, Gary Baltimore and Tavarrius

Small, established once HHS learned of the water leak, employees were

dispatched to tend the floors. The HHS employees testified they used a

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device to extract the water, and one of the employees left to retrieve another

device. The employees also testified they constructed a “dam,” using

towels, to attempt to stop the flow of water. The employees also testified a

“wet floor” sign was placed in the area, and, according to HHS, the sign was

visible and within Magee’s line of sight. Small testified he extracted the

water from the area in front of Room 230; he then left the hospital after he

“dumped” the water from the device (he explained his shift had ended and

he had already “clocked out”). Baltimore left the area of the spill to retrieve

another device to clean up the water and did not return until after Magee had

fallen.

Based on the record before us, a trier of fact could determine the

presence of water on the floor created an unreasonable risk of harm, and the

actions of HHS were unreasonable. It is undisputed HHS employees went to

the scene of the spill and initiated, but did not fully complete, the process of

eliminating the water. The evidence also established the employees placed

one “wet floor” sign in front of the door to Room 230, the room from where

the water was flowing. There is no evidence of record to show other signs

were placed in the direction from which Magee was walking. In fact,

Magee, Banzo, and Powell testified they did not see a wet floor sign nearby,

and they did not see any HHS employees in the area when Magee fell.

Magee also testified he did not see the sign until after he fell when a

nurse pointed it out to him. Additionally, the HHS employees described the

water as “sewer water” with a distinct odor and appearance and could be

seen from several feet away from the location of Magee’s fall. However,

Magee and Banzo described the water as clear and “shiny.” Credibility

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determinations by the trier of fact are necessary to resolve the conflict

between the observations of the witnesses, and there are genuine issues of

material fact concerning whether HHS exercised reasonable diligence in its

efforts to eliminate the water from the floor and to warn others of its

presence. Consequently, the district court erred in granting HHS’s motion

for summary judgment. Therefore, we reverse this ruling and remand this

matter for further proceedings.

CONCLUSION

For the reasons set forth herein, the summary judgments granted in

favor of defendants, IASIS Glenwood Regional Medical Center, LP and

Hospital Housekeeping System, LLC, are reversed, and this matter is

remanded for further proceedings. Costs of this appeal are assessed against

defendants, IASIS Glenwood Regional Medical Center, LP and Hospital

Housekeeping System, LLC.

REVERSED AND REMANDED.

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