Elizabeth Higginbotham v. Rapides Healthcare System, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-538
consolidated with 07-692

ELIZABETH HIGGINBOTHAM, AND
CYNTHIA MARIE KUHLMANN, INDIVIDUALLY
AND ON BEHALF OF HER MINOR SON,
DUSTIN ALEXANDER KUHLMANN

VERSUS

THE RAPIDES FOUNDATION D/B/A
RAPIDES REGIONAL MEDICAL CENTER,
JOSEPH WILTZ AND ABC INSURANCE COMPANY

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, DOCKET NO. 208,571 -- DIVISION D
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Marc T. Amy, Michael G. Sullivan, and James T. Genovese,
Judges.

AFFIRMED.

Leonard M. Berins
Gerald Wasserman
Bach & Wasserman
3939 North Causeway Boulevard, Suite 200
Metairie, Louisiana 70002
(504) 846-5700
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Elizabeth Higginbotham and Cynthia Marie Kuhlman, individually
and on behalf of her minor son, Dustin Alexander Kuhlman

Randall M. Seeser
Brandon A. Sues
Gold, Weems, Bruser, Sues & Rundell
2001 MacArthur Drive
Post Office Box 6118
Alexandria, Louisiana 71307-6118
(318) 445-6471
COUNSEL FOR DEFENDANTS/APPELLEES:
Rapides Healthcare System, L.L.C., d/b/a Rapides Regional Medical
Center and Health Care Indemnity, Inc.

GENOVESE, Judge.

Plaintiffs, Elizabeth Higginbotham and Cynthia Marie Kuhlmann, individually

and on behalf of her minor son, Dustin Alexander Kuhlmann, appeal the trial court’s

dismissal of their claims against Defendants, Rapides Healthcare System, L.L.C.,

doing business as Rapides Regional Medical Center (Rapides), and its liability

insurer, Health Care Indemnity, Inc. (Health Care), pursuant to summary judgment.

For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 19, 2001, Plaintiff, Elizabeth Higginbotham (Ms. Higginbotham),

went to Rapides to visit her daughter, Cynthia Kuhlmann (Mrs. Kuhlmann), who was

in the hospital following childbirth. Upon arrival, Ms. Higginbotham parked her

vehicle at the corner of Fifth Street and Scott Street in Alexandria, Louisiana. After

the visit, Ms. Higginbotham left the hospital accompanied by her two-year-old

grandson, Dustin Kuhlmann. While in the process of loading her grandson into the

back seat of her automobile, Ms. Higginbotham was mugged by Defendant, Joseph

Wiltz (Wiltz). According to Ms. Higginbotham, Wiltz approached her from behind

as she was leaning into her back seat, forcefully wrestled her grandson’s duffle bag

from her, and ran away with the bag. Shortly thereafter, Wiltz was apprehended and

arrested by the Alexandria city police.

On April 26, 2002, Plaintiffs filed suit against Rapides, its liability insurer,

Health Care, and Wiltz. Plaintiffs’ petition alleges: (1) that the attack aggravated Ms.

Higginbotham’s “previously repaired spinal injury at the C6-7 level and [caused] a

new injury at C4-5 and C5-6” which ultimately had to be treated through surgery; (2)

that Dustin Kuhlmann suffered mental anguish and emotional distress as a result of

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witnessing the attack on his grandmother; and (3) that Mrs. Kuhlmann, who “was

informed of the incident immediately after it occurred and while she was still a

maternity patient[,]” suffered “shock and emotional trauma caused [to] her as a result

of witnessing the mental anguish of both her mother and son” which “exacerbated the

mental and physical stress normally attendant with the birthing process.” Plaintiffs

asserted that Rapides was negligent in failing to safeguard Ms. Higginbotham and her

grandson from known criminal activity around its premises and that Health Care was

liable for Rapides’s negligence in accordance with its liability insurance policy

insuring Rapides against such a claim.

On September 8, 2006, Rapides filed a motion for summary judgment asserting

that it did not own, maintain, patrol, or secure either Fifth Street or Scott Street, the

city streets where the mugging occurred. Rapides further asserted that it did not owe

a legal duty to protect Plaintiffs against a random and unforeseen criminal incident

by an unknown third party occurring on a public or city street. In support of its

motion for summary judgment, Rapides attached as exhibits: (1) excerpts of the

deposition of Ms. Higginbotham; (2) the affidavit of Kevin Johnson, Rapides’s

Director of Engineering and Construction Services; (3) excerpts of the deposition of

Brian Jones, a hospital security supervisor; and (4) excerpts of the deposition of

George Sanders, a hospital security officer.

A hearing on Rapides’s motion for summary judgment was originally set for

October 23, 2006. However, Plaintiffs sought and were granted a continuance; the

hearing was reset for December 18, 2006. Plaintiffs served their memorandum in

opposition and opposing exhibits upon Rapides on Friday, December 15, 2006, less

than three days before the scheduled hearing on Monday, December 18, 2006.

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Rapides objected to and moved to strike Plaintiffs’ untimely served and filed

opposition and opposing exhibits. On December 18, 2006, prior to the hearing on

Rapides’s motion for summary judgment, Plaintiffs requested a second continuance

in an effort to timely file an opposition; however, the trial court denied Plaintiffs’

request. Instead, Rapides’s motion to strike was granted, and Plaintiffs were barred

from filing an opposition and arguing on the basis that their opposition was untimely.

On January 5, 2007, the trial court issued written reasons for judgment

concluding that Rapides owed no legal duty to Plaintiffs in this matter. On the same

day, the trial court signed the judgment granting Rapides’s motion for summary

judgment, thereby dismissing Plaintiffs’ action, with prejudice, against Rapides.

Plaintiffs’ motion for devolutive appeal was granted by the trial court on February 8,

2007.1

On February 2, 2007, Health Care filed a motion for summary judgment

asserting that it was also entitled to a dismissal of Plaintiffs’ action, with prejudice,

as a result of its insured, Rapides, being previously relieved of any liability in this

matter. In support of its motion for summary judgment, Health Care attached as

exhibits: (1) Plaintiffs’ first supplemental and amending petition; (2) its answer to

Plaintiffs’ first supplemental and amending petition; (3) the trial court’s written

reasons for judgment dated January 5, 2007; and (4) the trial court’s judgment signed

on January 5, 2007.

In their opposition to Health Care’s motion, Plaintiffs argued:

[P]ending the outcome of the appeal of the [s]ummary [j]udgment
granted in favor of the hospital, it would be unfair and unjust to dismiss
Health Care . . . on the grounds that the trial court has already dismissed
its insured. Until the appeal process is complete, there can be no final

1
This judgment is on appeal under docket number 07-538.

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determination as to whether or not this [c]ourt was correct in granting
[Rapides’s] [m]otion for [s]ummary [j]udgment, and it would be
inappropriate to base the dismissal of [Rapides’s] insured on the basis
of a [j]udgment upon which the Appellate Court has yet to rule.

Plaintiffs also offered as opposing exhibits: (1) the deposition of Ms. Higginbotham;

(2) the deposition of Brian Jones; (3) the deposition of George Sanders; (4) the

deposition of Nolan French; and (5) eleven reports from the Alexandria Police

Department.

A hearing was held on Health Care’s motion for summary judgment on March

26, 2007. On March 30, 2007, the trial court issued written reasons for judgment

wherein it concluded that Health Care could not be liable for claims against Rapides

when Rapides had been relieved of liability in the case. On April 30, 2007, the trial

court granted Plaintiffs’ motion for devolutive appeal.2

ASSIGNMENTS OF ERROR

Plaintiffs assert, in both of their appeals before this court, that:

1. The trial court erred in striking and not considering Plaintiffs’
memorandum in opposition and opposition exhibits to the
Defendant’s motion for summary judgment.

2. The trial court erred in excluding the police reports from evidence
as inadmissible hearsay.

3. The trial court erred in not [sic] finding that there were no
material issues as to fact and that, as a matter of law, a summary
judgment should be granted in favor of [D]efendant.3

4. The trial court erred in granting summary judgment in favor of
Health Care unless and until such judgment was rendered final on
appeal.4

2
This judgment is on appeal under docket number 07-692. Docket numbers 07-538 and 07-
692 have been consolidated for purposes of this appeal.
3
These assignments of error are raised in 07-538.
4
This assignment of error is raised in 07-692.

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STANDARD OF REVIEW

This court “must review summary judgments de novo, using the same criteria

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

appropriate, i.e., whether there is a genuine issue of material fact and whether the

mover is entitled to judgment as a matter of law.” Supreme Servs. & Specialty Co.,

Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638 (citing

Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773). Accordingly, we must

determine whether “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to material fact, and that mover is entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(B).

The burden of showing that there are no genuine issues of
material fact is borne by the mover. La.Code Civ.P. art. 966(C)(2). To
satisfy this burden, the mover must present supportive evidence that the
motion should be granted. Once the mover establishes a prima facie
showing, the burden of production shifts to the nonmoving party to
present evidence of the existence of issues of material fact which
preclude summary judgment. An adverse party may not rest on the
pleadings but must set forth, by affidavit or otherwise, specific facts
showing that there is a genuine issue for trial. La.Code Civ.P. art. 967.

Colson v. Johnson, 01-967, pp. 1-2 (La.App. 3 Cir. 12/12/01), 801 So.2d 648, 650,

writ denied, 02-103 (La. 3/22/02), 811 So.2d 939 (quoting Mercury Cellular Tel. Co.

v. Calcasieu Parish of La., 00-318, p. 4 (La.App. 3 Cir. 12/13/00), 773 So.2d 914,

917, writ denied, 01-126 (La. 3/16/01), 787 So.2d 314).

DISCUSSION

Timeliness of Opposition

In their first two assignments of error, Plaintiffs argue that the trial court erred

in striking their memorandum in opposition and opposing exhibits to Rapides’s

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motion for summary judgment. We disagree. Rapides filed its motion for summary

judgment on September 8, 2006. The trial court originally set this matter for hearing

on October 23, 2006. Pursuant to Plaintiffs’ request on October 17, 2006, the trial

court granted a continuance and reset the hearing for Monday, December 18, 2006.

Not until Friday, December 15, 2006, did Plaintiffs serve Rapides with a copy of their

memorandum in opposition and opposing exhibits. At the December 18, 2006

hearing, Rapides objected to and moved to strike Plaintiffs’ opposition and opposing

exhibits on the basis that it was filed only three days prior to the hearing on the

summary judgment, not the eight days required by La.Code Civ.P. art. 966(B).

Plaintiffs requested another continuance. The trial court granted Rapides’s motion

to strike Plaintiffs’ opposition and denied Plaintiffs’ motion for continuance.

Louisiana Code of Civil Procedure Article 966(B) (emphasis added) provides,

in pertinent part:

The motion for summary judgment and supporting affidavits shall
be served at least fifteen days before the time specified for the hearing.
For good cause, the court shall give the adverse party additional time to
file a response, including opposing affidavits or depositions. The
adverse party may serve opposing affidavits, and if such opposing
affidavits are served, the opposing affidavits and any memorandum in
support thereof shall be served pursuant to Article 1313 at least eight
days prior to the date of the hearing unless the Rules for Louisiana
District Courts provide to the contrary.

Uniform Rules of the District Courts Rule 9.9 (emphasis added) further

provides, in pertinent part:

(b) A party who opposes an exception or motion must
concurrently furnish the trial judge and serve on all other parties an
opposition memorandum at least eight calendar days before the
scheduled hearing. The opposition memorandum must be served on all
other parties so that it is received by the other parties at least eight
calendar days before the hearing, unless the court sets a shorter time.

....

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(d) Parties who fail to comply with paragraphs (a) and (b) of this
rule may forfeit the privilege of oral argument. If a party fails to timely
serve a memorandum, thus necessitating a continuance to give the
opposing side a fair chance to respond, the court may order the
late-filing party to pay the opposing side’s costs incurred on account of
untimeliness.

Finally, the Louisiana Supreme Court has declared:

The time limitation established by [La.Code Civ.P. art.] 966(B)
for the serving of affidavits in opposition to a motion for summary
judgment is mandatory; affidavits not timely filed can be ruled
inadmissible and properly excluded by the trial court. See American
Bank & Trust Company v. International Development Corporation, Inc.,
506 So.2d 1234, 1235-36 (La.App. 1 Cir.1987).

Buggage v. Volks Constructors, 06-175, p. 1 (La. 5/5/06), 928 So.2d 536, 536.

It is clear in this case that Plaintiffs filed their opposition to Rapides’s motion

for summary judgment three days prior to a hearing on the matter and that the hearing

had already been continued once at the request of Plaintiffs. Thus, the filing was

clearly not timely under either La.Code Civ.P. art. 966(B) or Uniform Rules of the

District Courts Rule 9.9. Given the facts, the law, and Plaintiffs’ lack of due

diligence, we find no abuse of discretion by the trial court in excluding Plaintiffs’

opposition.

Duty

The trial court ruled that Rapides did not owe a duty to the Plaintiffs. In its

written reasons for judgment, the trial court declared:

The [c]ourt was not presented with any evidence suggesting that it was
foreseeable that such an incident would occur in the time, place, and
manner in which this incident occurred. The [c]ourt finds that Rapides
owed no legal duty to protect Ms. Higginbotham from the unforeseeable,
intentional act of a third person. “A business’s duty to take reasonable
care for the safety of its patrons does not extend to unforeseeable or
unanticipated criminal acts of independent third persons.” Vail v.
Masker, 01-1443, p. 3 (La.App. 4 Cir. 3/6/02)[,] 812 So.2d 807, 809.

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Plaintiffs assert that the trial court erred in finding that Rapides owed no duty

to protect Ms. Higginbotham and her grandson from this mugging. The supreme

court in Davis v. Witt, 02-3102, pp. 10-11 (La. 7/2/03), 851 So.2d 1119, 1127,

discussed the method by which a court must determine whether liability exists:

The standard negligence analysis we employ in determining
whether to impose liability under [La.Civ.Code] art. 2315 is the
duty/risk analysis, which consists of the following four-prong inquiry:
(1) Was the conduct in question a substantial factor in bringing about
the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which
occurred? (2) Did the defendant(s) owe a duty to the plaintiff? (3) Was
the duty breached? (4) Was the risk, and harm caused, 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, 321-22.

Under a duty/risk analysis, all four inquiries must be affirmatively
answered for plaintiff to recover. As such, in order for liability to attach
under a duty/risk analysis, a plaintiff must prove five separate elements:
(1) the defendant had a duty to conform his or her conduct to a specific
standard of care (the duty element); (2) the defendant failed to conform
his or her conduct to the appropriate standard (the breach of duty
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 liability or scope of protection element); and, (5) actual
damages (the damages element). See Roberts v. Benoit, 605 So.2d 1032
(La.1991), on rehearing, 605 So.2d 1050, 1051 (La.1991).

The question of whether a duty exists is a question of law. Bonds v. Abbeville

Gen. Hosp., 00-1462 (La.App. 3 Cir. 4/4/01), 782 So.2d 1188. Similarly, the question

of whether a particular risk is included within the scope of a particular duty is a legal

issue to be resolved by the court. Id.

Using the same criteria that govern the trial court’s consideration of whether

summary judgment is appropriate, we must determine whether Rapides owed a duty

to protect Ms. Higgibotham from a criminal attack by third parties under the facts of

this case.

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Business owners have a duty to implement reasonable measures to protect their

patrons from criminal acts when those acts are foreseeable. Id., (citing Posecai v.

Wal-Mart Stores, Inc., 99-1222 (La. 11/30/99), 752 So.2d 762). The supreme court

has established a balancing test to determine foreseeability, stating:

The foreseeability of the crime risk on the defendant’s property and the
gravity of the risk determine the existence and the extent of the
defendant’s duty. The greater the foreseeability and gravity of the harm,
the greater the duty of care that will be imposed on the business. A very
high degree of foreseeability is required to give rise to a duty to post
security guards, but a lower degree of foreseeability may support a duty
to implement lesser security measures such as using surveillance
cameras, installing improved lighting or fencing, or trimming shrubbery.
The plaintiff has the burden of establishing the duty the defendant owed
under the circumstances.

Id., 782 So.2d at 1192 (quoting Posecai, 752 So.2d at 768).

The deposition testimony of Ms. Higginbotham indicates that the incident

occurred in the city street, on the corner of Fifth Street and Scott Street. Although

Plaintiffs contend that Rapides’s owed a duty to protect Ms. Higginbotham due to

foreseeable criminal activity, Ms. Higginbotham testified that she was unaware of any

other attacks on or near Rapides’s property. It is noteworthy that Ms. Higginbotham

had been employed at a gift shop within the hospital from March 2001 until April

2001, just four months prior to her August 19, 2001 mugging and was, therefore,

familiar with the hospital and its environs.

In his deposition, Brian Jones, a hospital security advisor, swore that he was

unaware of any criminal incidents or offenses against persons such as robbery, theft,

assault, battery, or rape, occurring on the hospital property for one year prior to Ms.

Higginbotham’s mugging. He also testified that he patrolled near the general area of

Ms. Higginbotham’s mugging approximately fifteen to twenty minutes before the

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incident, and he did not see any suspicious criminal activity on his routine security

patrol.

In his affidavit, Kevin Johnson, Director of Engineering and Construction

Services, swore that Rapides did not own, maintain, secure, or patrol the public or

city streets known as Fifth Street and Scott Street in Alexandria. Likewise, George

Sanders, a hospital security officer, testified in his deposition that Rapides did not

patrol or secure the city streets.

Considering the evidence properly presented before this court, we find no legal

basis on which to conclude that Rapides could have reasonably foreseen the attack

on Ms. Higginbotham. The record does not support a finding that Rapides owed a

duty to Ms. Higginbotham to protect her from this sort of attack under the factual

circumstances of this case. Therefore, we find no legal error in the trial court’s ruling

that in this scenario, Rapides had no legal duty to provide protection to Ms.

Higginbotham from random and unforeseen criminal activity by an unknown third

party occurring on a public street.

Finally, we also find no legal error in the trial court’s decision to grant Health

Care’s motion for summary judgment. Health Care’s motion for summary judgment

was solely related to its liability as the insurer of the hospital. Said summary

judgment was not directed to the rehashing of the issue of liability which had been

previously addressed in the prior motion for summary judgment. Plaintiffs’

introduction of affidavits, depositions, and inadmissible police reports are impertinent

and immaterial to the issue of the insurer’s liability when the insured has been

relieved of liability. As accurately articulated by the trial court, “a liability insurer

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cannot be liable for claims against its insured when the insured itself is relieved of

liability. Foster v. Hampton, 352 So.2d 197[] (La.1977).”

DECREE

For the foregoing reasons, the summary judgments of the trial court are

affirmed. Costs of these appeals are assessed against Plaintiffs/Appellants, Elizabeth

Higginbotham and Cynthia Marie Kuhlmann, individually and on behalf of her minor

son, Dustin Alexander Kuhlmann.

AFFIRMED.

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