Jane Foster v. Barbara Henshaw

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-414

JANE FOSTER

VERSUS

BARBARA HENSHAW AND BARBARA HENSHAW ROBERTS

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 2003-006858
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.
AFFIRMED.

Terrell D. Fowler
Terrell D. Fowler, A P.L.C.
625 Kirby Street
Lake Charles, Louisiana 70601
(337) 433-9900
COUNSEL FOR PLAINTIFF/APPELLANT:
Jane Foster

Christopher P. Ieyoub
Law Offices of Plauché, Smith & Nieset, A P.L.C.
Post Office Drawer 1705
Lake Charles, Louisiana 70602
(337) 436-0522
COUNSEL FOR DEFENDANT/APPELLEE:
Barbara Henshaw Roberts, in her capacity as independent
executor of the succession of Defendant, Barbara Henshaw, now
deceased

Joel M. Lutz
Stutes, Fontenot, LaVergne & Lutz, L.L.C.
Post Office Box 1644
Lake Charles, Louisiana 70602
(337) 433-0022
COUNSEL FOR DEFENDANT/APPELLEE:
Barbara Henshaw Roberts

GENOVESE, Judge.

In this slip-and-fall case, Plaintiff, Jane Foster (Foster), appeals the trial court’s

granting of summary judgment in favor of Defendant, Barbara Henshaw (Henshaw),

on the issue of premises liability, thereby dismissing Plaintiff’s lawsuit. For the

following reasons, we affirm.

FACTS

In her lawsuit, Foster claims that she was injured when she slipped and fell on

leaves which were on the concrete floor at the Henshaw residence. Foster was

employed as a domestic sitter for Henshaw, an eighty-eight-year-old Alzheimer’s

patient, and Henshaw’s daughter, Francis Gill, also an Alzheimer’s patient. Foster

alleges that on November 9, 2002, while attempting to retrieve the newspaper for

Henshaw, she slipped and fell on damp leaves and debris on the concrete floor in

Henshaw’s carport. Henshaw’s ownership of the residence is not in dispute.

In her deposition testimony, Foster describes her fall as follows:

I fell when I went -- I went look for the paper, but it wasn’t there. And
then I heard this noise and then this automobile coming up the driveway,
and it came up fast and it scared me, so I started to run in to get inside
before it got to me and I fell on my way in some leaves. They had a
bunch of leaves I fell on. I slipped.

Further, Foster also admits in her deposition that she was aware that leaves often

accumulated in this area of Henshaw’s carport. However, Foster did not testify that

she told Henshaw about the leaves, or that she knew that Henshaw had knowledge of

the existence of the leaves.

Foster filed suit on December 18, 2003. Also named as a defendant in Foster’s

original petition was Henshaw’s daughter, Barbara Henshaw Roberts (Roberts), who

was later dismissed as a defendant. However, due to Henshaw’s death on January 30,

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2005, Roberts remained a party in her capacity as the independent executor of her

mother’s estate.1

A motion for summary judgment was filed by Henshaw asserting that there are

no genuine issues of material fact and, as a matter of law, that Foster is unable to

prove certain essential allegations in her petition, i.e., (1) that damp leaves on the

concrete carport created an unreasonably dangerous condition; and/or (2) that

Henshaw had actual or constructive notice or knowledge of the defect. Following a

hearing, the trial court granted Henshaw’s motion for summary judgment. The trial

court found that leaves on the ground in the garage, as described by Foster, did not

create an unreasonable risk of harm and that Foster could not prove that Henshaw had

knowledge of the alleged defect based on her medical condition. Foster appeals.

ISSUE

The sole issue raised by Foster on appeal is whether the trial court erred in

granting summary judgment in favor of Henshaw, thereby dismissing Foster’s

lawsuit.

LAW AND DISCUSSION

“Appellate courts review summary judgments de novo, using the same criteria

that govern the trial court’s consideration of whether summary judgment is

appropriate.” Richard v. Hall, 03-1488, p. 4 (La. 4/23/04), 874 So.2d 131, 137;

Goins v. Wal-Mart Stores, Inc., 01-1136 (La. 11/28/01), 800 So.2d 783. The

appellate court must determine whether “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that

there is no genuine issue as to material fact, and that mover is entitled to judgment as

1
Despite Henshaw’s death, this court will continue to refer to the sole remaining Defendant
in this matter as “Henshaw.”

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a matter of law.” See La.Code Civ.P. art. 966(B). Despite the legislative mandate

favoring summary judgments found in La.Code Civ.P. art. 966(A)(2), “factual

inferences reasonably drawn from the evidence must be construed in favor of the

party opposing the motion, and all doubt must be resolved in the opponent’s favor.”

Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050; Indep. Fire Ins.

Co. v. Sunbeam Corp., 99-2181, 99-2257 (La. 2/29/00), 755 So.2d 226.

Additionally, as we explained in LaRocca v. Bailey, 01-618, pp. 5-6 (La.App.

3 Cir. 11/7/01), 799 So.2d 1263, 1267:

Because this is a summary judgment case to which La.Code Civ.P. art.
966 et seq. is applicable, it is necessary to first determine who will bear
the burden of proof at trial. Subpart (C)(2) of La.Code Civ.P. art. 966
explains that[:]
The burden of proof remains with the movant. However,
if the movant will not bear the burden of proof at trial on
the matter that is before the court on the motion for
summary judgment, the movant’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 that there is an 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 support sufficient to establish that
he will be able to satisfy his evidentiary burden of proof at
trial, there is no genuine issue of material fact.

In the instant case, Foster bears the burden of proof at trial. This court

reviewed the jurisprudence pertaining to slip-and-fall cases in LeJeune v. Riviana

Foods, 97-1091, pp. 2-4 (La.App. 3 Cir. 2/18/98), 707 So.2d 1038, 1039-40, writ

denied, 98-749 (La. 5/1/98), 718 So.2d 418, wherein we stated:

When an individual is injured as a result of an unreasonably
dangerous condition existing on a landowner’s property, he can recover
damages relying on either La.Civ.Code art. 2315, which is the basis of
general negligence liability, or La.Civ.Code art. 2317, which provides
for a strict liability theory of recovery. Owners and occupiers of land
have a duty to discover any unreasonably dangerous conditions existing
on their premises and to either correct those conditions or warn victims

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of their existence. Silliker v. St. Landry Parish Police Jury, 520 So.2d
880 (La.App. 3 Cir.1987).
The difference in proof between a negligence claim based on
La.Civ.Code art. 2315 and a strict liability claim resting on La.Civ.Code
art. 2317 is that Article 2315 requires that plaintiff show the owner, or
person in custody of the premises, either knew or should have known of
the risk, whereas Article 2317 relieves plaintiff from having to prove
defendant’s scienter. Finley v. State Farm Insurance Co., 598 So.2d
537 (La.App. 1 Cir.1992). However, under either liability theory,
plaintiff first has the burden of proving: (1) the property which caused
the damage was in the custody of the defendant; (2) the property was
defective because it had a condition that created an unreasonable risk of
harm to persons on the premises; and, (3) the defect in the property was
a cause-in-fact of the resulting injury. Morell v. City of Breaux Bridge,
94-1378 (La.App. 3 Cir. 5/31/95), 660 So.2d 882.
Property owners are not insurers of the safety of visitors, but only
owe a duty to keep their premises in a safe condition for use in a manner
consistent with the purposes for which the premises are intended. David
v. Reon, 520 So.2d 820 (La.App. 3 Cir.1987), writ denied, 522 So.2d
564 (La.1988). Furthermore, not every minor imperfection or
irregularity will give rise to strict liability. The defect must be of such
a nature to constitute a dangerous condition, which would reasonably be
expected to cause injury to a prudent person using ordinary care under
the circumstances. Koppie v. Commercial Union Insurance Company,
478 So.2d 179 (La.App. 3 Cir.), writ denied, 479 So.2d 922 (La. 1985).
In other words, the owner of the premises cannot be held responsible for
any risk posed by his property, only those presenting an unreasonable
risk of harm to others. David, 520 So.2d 820. In determining whether
a given condition is unreasonably dangerous, the degree to which the
danger may be observed by a potential victim who may then provide
self-protection is a major factor. Silliker, 520 So.2d 880.

As set forth above, summary judgment is proper, as a matter of law, if there

exists no genuine issue of material fact. Since Henshaw does not bear the burden of

proof at trial, Henshaw is not required, in a summary judgment proceeding, to negate

all essential elements of Foster’s claims. Rather, Henshaw must show an absence of

factual support for one or more elements essential to Foster’s claim. If Henshaw is

successful, the burden of proof then shifts to Foster to produce factual support

sufficient to establish that Foster will be able to satisfy her evidentiary burden of

proof at trial. LaRocca, 799 So.2d 1263.

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In support of her motion for summary judgment, Henshaw introduced the

affidavit of Roberts attesting to Henshaw’s mental and physical condition at the time

of Foster’s accident. Roberts’ affidavit states, in pertinent part:

Barbara Henshaw and her daughter, Francis Gill, were mentally
incompetent and incapacitated;
Barbara Henshaw and Francis Gill were physically incapable of tending
to their own needs and required assistance with all activities of daily
living;
Jane Foster was hired along with various other domestic sitters to
provide 24 hour care for the sole reason that Ms. Henshaw and Ms. Gill
were mentally and physically incapable of caring for themselves.
Specifically, Barbara Henshaw was physically and mentally incapable
of identifying, understanding or remedy [sic] any condition outside the
home, regardless [of] the nature of that condition[.]

Henshaw argues that Foster is unable to prove two essential elements of her claim:

(1) an unreasonably dangerous condition on the Henshaw property; and (2) actual or

constructive notice to Henshaw of said unreasonably dangerous condition. We agree.

In its oral reasons for judgment, the trial court stated:

[W]hether the leaves create an unreasonable risk of harm apparently has
been reviewed and based on the Thornton [v. Bd. of Supervisors of
Louisiana State Univ., 29,898 (La.App. 2 Cir. 10/29/97), 702 So.2d 72]
jurisprudence, they find that those leaves there were not enough to
create an unsafe area and that was with an invitee, particularly in the
sense of the duty owed the [P]laintiff here was undoubtedly lower than
that what was owed to the plaintiff in the Thornton case.
Also, causation [has] not been shown to be [a] genuine issue of
material fact by the [P]laintiff pointing out problems by the mover here
and no submissions at this time showing that the leaves were in fact a
cause in fact of the alleged injury. And then finally that the [D]efendant
had actual or constructive knowledge of the risk. It is apparent based on
the affidavit of the daughter, Barbara Henshaw Roberts[,] that
knowledge cannot be imputed or established based on the medical
condition [of Defendant, Barbara Henshaw].

The plaintiff in Thornton slipped and fell on damp leaves while walking down a

concrete ramp to exit the Louisiana State University Medical Center building in

Shreveport. The second circuit affirmed the trial court’s granting of summary

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judgment because the plaintiff admitted in her deposition that she was aware of the

leaves covering the walkway and the possible danger said leaves could pose.

In the instant case, it is undisputed that Foster was a hired care-giver of the

incapacitated Henshaw and that part of her job was to retrieve the newspaper for

Henshaw. In fact, Foster was performing that very function on November 9, 2002,

when she slipped on some leaves that had accumulated outside the Henshaw

residence. It is noteworthy that Foster traveled the same path to retrieve the

newspaper as she traveled to quickly return to the house after being startled by a loud

noise from an approaching vehicle. Having traveled the same path moments before

while en route to retrieve the newspaper, Foster was certainly aware of the condition

of the premises and the leaves on the concrete flooring. Foster blames the speed at

which she was running and the leaves for her fall. She admits that she knew there

were leaves on the carport. She did not fall going out to get the newspaper; she fell

running back to the house. The mere presence of leaves on a concrete floor in the fall

(November) does not create an unreasonably dangerous condition. Additionally,

Foster failed to prove that Henshaw had actual or constructive knowledge of the

condition of the premises, despite her mental incapacity. Foster failed to prove not

only one but two essential elements of her slip-and-fall claim. Given the facts

presented and the applicable law, we find that the trial court was correct in granting

summary judgment in favor of Henshaw and dismissing Foster’s lawsuit.

DECREE

For the above reasons, the judgment of the trial court granting Henshaw’s

motion for summary judgment is affirmed. Costs are assessed to Plaintiff/Appellant,

Jane Foster.

AFFIRMED.

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