Karen Potier v. Lafayette General Medical Center

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-200

KAREN POTIER

VERSUS

LAFAYETTE GENERAL MEDICAL CENTER, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2013-5771-A
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Jimmie C. Peters, James T. Genovese, and John E. Conery,
Judges.

AFFIRMED.

Harold D. Register, Jr.
A Professional Law Corporation
Post Office Box 80214
Lafayette, Louisiana 70598-0214
(337) 981-6644
COUNSEL FOR PLAINTIFF/APPELLANT:
Karen Potier

Nicholas Gachassin, Jr.
Nicholas Gachassin, III
Gary J. Delahoussaye
Gachassin Law Firm
Post Office Box 80369
Lafayette, Louisiana 70598
(337) 235-4576
COUNSEL FOR DEFENDANT/APPELLEE:
Lafayette General Medical Center

CONERY, Judge.

Plaintiff, Karen Potier, appeals the trial court’s ruling granting summary

judgment in favor of Lafayette General Medical Center (LGMC). The trial court

dismissed Ms. Potier’s claim for damages that she allegedly suffered when she

became entangled in the straps of a gurney which had been used to transport her

friend to the emergency room of LGMC. It is undisputed that the gurney was the

property of the recently added codefendant, Acadian Ambulance Service, Inc.

(Acadian). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 26, 2015, the trial court heard LGMC’s motion for summary

judgment seeking to dismiss the premises liability claim of Ms. Potier. Pursuant to

La.Dist.Ct.R. 9.10(b)(2), LGMC submitted a list of material facts that were not

genuinely in dispute. In her memorandum in opposition to LGMC’s motion, Ms.

Potier stated, “The facts as stated in Defendants’ Memorandum are not contested.”

Therefore, the uncontested facts of this case are as follows:

1. Plaintiff, Karen Potier, was a visitor in the Emergency Department
at LGMC, having accompanied a friend during the Acadian
Ambulance transport of the friend from her home to the
Emergency Department at LGMC.

2. The gurney in dispute was placed in its position immediately prior
to Plaintiff’s fall by Acadian Ambulance personnel, not LGMC
personnel.

3. Plaintiff fell when her left foot got caught in the straps of the
Acadian Ambulance gurney, after the Plaintiff’s friend (i.e. the
patient) had already been transferred from the gurney to a hospital
bed.

4. According to Plaintiff’s own deposition testimony, LGMC did
nothing “wrong” to cause her fall or alleged subsequent injuries.

After hearing argument of counsel, the trial court granted LGMC’s motion

for summary judgment and stated:

Okay. I’m going to grant the motion. There isn’t any evidence
in the record that the employees of the hospital were guilty of
anything. In fact, the plaintiff said in her deposition that there wasn’t
anything that they did wrong, the plaintiff just feels like she - - like
the hospital is responsible because it occurred on their premises,
which is not the law. And there hadn’t been any showing that she can
meet her burden of proof at trial, so the motion is granted.

On June 12, 2015, the trial court signed the judgment granting LGMC’s

motion for summary judgment dismissing Ms. Potier’s claims with full prejudice

and at Ms. Potier’s cost. The judgment was mailed to all parties on June 16, 2015.

On August 4, 2015, Ms. Potier filed her intent to file a writ with the trial court

seeking a return date. The trial court signed an order granting Ms. Potier until

August 17, 2015, to file her writ with this court. However, the order was not

mailed to Ms. Potier until August 17, 2015.

On August 31, 2015, Ms. Potier sought and was granted an extension until

September 17, 2015, to file a writ. On September 16, 2015, Ms. Potier sought and

was granted an additional extension until October 9, 2015, to file her writ. The

writ was filed in accordance with the extensions granted by the trial court.

On January 28, 2016, this court denied the writ, finding, “The judgment at

issue in the instant writ application is an appealable judgment. La.Code Civ.P. art.

1915(A)(1).” Therefore, this court declined to “exercise their supervisory

jurisdiction when an adequate remedy exists by appeal. Douglass v. Alton Ochsner

Medical Found., 96-2825 (La. 6/13/97), 695 So.2d 953.” This court further found

that any appeal of the trial court’s June 12, 2015 judgment would now be untimely.

Although this court held that any appeal of the trial court’s June 12, 2015 judgment

would be untimely, it found:

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[T]hat Relator’s notice of intent to seek supervisory writs would have
been timely filed as a motion seeking an appeal from this judgment.
Therefore, in keeping with the intent of Armstrong v. Stein, 94-97 (La.
3/18/94), 634 So.2d 845, we hereby consider Relator’s notice of intent
to seek supervisory writs as a timely filed motion for appeal.

The Relator was then required to “comply with the other rules governing an

appeal.” The case was remanded on January 28, 2016, to the trial court for:

Relator to comply with the other mandates of the Louisiana Code of
Civil Procedure and the Louisiana Revised Statutes governing appeals.
Thus, although Relator is deemed to have timely obtained an order
granting the appeal, Relator must obtain a return date, complying with
any other statutory provisions regarding appeals from rulings of this
nature.

Subsequently, Ms. Potier filed a motion for appeal on February 8, 2016, and

the appeal has been lodged for decision by this court.

ASSIGNMENTS OF ERROR

Ms. Potier asserts three assignments of error on appeal:

I. The trial court erred when it determined that there were no
genuine issues of material fact regarding Lafayette General
Medical Center’s failure to ensure that the walkway within a
patient’s room was free from unreasonable and hazardous
objects.

II. The trial court erred when it failed to determine that the
comparative fault doctrine as elicited in Louisiana Civil Code
Article 2323 precludes Summary Judgment in favor of
Lafayette General Medical Center.

III. The trial court erred when it granted Defendant’s motion for
summary judgment because of plaintiff’s alleged inability to
meet her burden of proof at trial.

LAW AND DISCUSSION

Standard of Review

It is well settled that “[a]ppellate review of the granting of a motion for

summary judgment is de novo, using the identical criteria that govern the trial

court’s consideration of whether summary judgment is appropriate.” Smitko v.

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Gulf S. Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755. Summary

judgment proceedings are “designed to secure the just, speedy, and inexpensive

determination of every action, except those disallowed by Article 969. The

procedure is favored and shall be construed to accomplish these ends.” La.Code

Civ.P. art. 966(A)(2). 1 Additionally, “After adequate discovery or after a case is

set for trial, a motion which shows that there is no genuine issue as to material fact

and that the mover is entitled to judgment as a matter of law shall be granted.”

La.Code Civ.P. art. 966(C)(1). Further, pursuant to La.Code Civ.P. art. 966(C)(2):

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 parry’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.

Louisiana Civil Code Article 2317.1 - Premises Liability

In their briefing to the trial court, both parties argued the applicability of

La.Civ.Code art. 2317.1, which provides, in part:

The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he
knew or, in the exercise of reasonable care, should have known of the
ruin, vice, or defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care.

Louisiana Civil Code Article 2317.1 was revised in 1996, with the addition

of the wording: “only upon a showing that he knew or, in the exercise of

1
A revision to La.Code Civ.P. art. 966 became effective on January 1, 2016. However,
the hearing on the motion for summary judgment was held on May 26, 2015, and judgment was
rendered on June 12, 2015. Therefore, the prior version of La.Code Civ.P. art. 966 is applicable
to this appeal.

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reasonable care, should have known of the ruin, vice, or defect which caused the

damage.” This addition to the article “has effectively turned it from a claim based

upon strict liability to a claim grounded in negligence.” Riggs v. Opelousas Gen.

Hosp. Trust Auth., 08-591, p. 3 (La.App. 3 Cir. 11/5/08), 997 So.2d 814, 817.

Therefore, in order to prevail under La.Civ.Code art. 2317.1, Ms. Potier

must prove:

(1) that the thing which caused the damage was in the defendant’s
custody or control, (2) that it had a vice or defect that presented an
unreasonable risk of harm, (3) that the defendant knew or should
have known of the vice or defect, (4) that the damage could have
been prevented by the exercise of reasonable care, and (5) that the
defendant failed to exercise such reasonable care. If the plaintiff
fails to provide proof [of] any one of these elements, his/her claim
fails.
Riggs, 997 So.2d at 817.

Louisiana Civil Code Article 2320 – Respondeat Superior

In her petition, Ms. Potier also claimed that an LGMC employee witnessed

“the entire negligent event where KAREN POTIER’S right leg became entangled

with the gurney upon exiting the hospital room and subsequent fall to the ground.”

Therefore, she alleged that pursuant to La.Civ.Code art. 2320, LGMC was

“directly and vicariously liable” for her damages. Louisiana Civil Code Article

2320 states in pertinent part, “Masters and employers are answerable for the

damage occasioned by their servants and overseers, in the exercise of the functions

in which they are employed.”

LGMC’s Submissions in Support of Summary Judgment

In support of its motion for summary judgment, LGMC submitted the

following documentation, which provided support for the above-stated undisputed

facts and the trial court’s determination that LGMC’s employees were not

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negligent. Further, although the incident occurred on the LGMC premises, under

the present version of La.Civ.Code art. 2317.1, Ms. Potier would be unable to meet

her burden of proof at trial. The submitted documentation included:

Exhibit 1 - Plaintiff’s Petition For Damages - November 14, 2013

Exhibit 2 - Deposition of Karen Potier - December 5, 2014

Exhibit 3 - Defendant’s Interrogatories and Request for Production of
Documents/Plaintiff’s Responses

Ms. Potier submitted a memorandum in opposition, but no documentation in

opposition to LGMC’s motion for summary judgment.

After a de novo review of the record, we affirm the trial court’s judgment

granting summary judgment in favor of LGMC and dismissing with prejudice the

claims of Ms. Potier on the basis that she will be unable to carry her burden of

proof at trial and that there are no genuine material facts to preclude summary

judgment pursuant to La.Code Civ.P. art. 966.

The deposition of Ms. Potier confirms that the gurney was the property of

Acadian and was used by Acadian’s paramedics to transport Ms. Potier’s friend

from the ambulance into the emergency room. Although the incident took place on

the premises of LGMC, the gurney that caused the alleged damage to Ms. Potier

was not in LGMC’s custody or control. After the arrival of Acadian’s ambulance

at LGMC, Ms. Potier testified the gurney was positioned in the treatment room by

the Acadian paramedics to facilitate the transfer of Ms. Potier’s friend to the

treatment room bed. Ms. Potier further testified that while one of the paramedics

was still speaking with the patient, Ms. Potier began to exit the treatment room.

Monique Cohen, the head nurse, was at the door and had not yet entered the

treatment room. As Ms. Potier was edging out of the treatment room, her foot

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became entangled in the Acadian gurney straps, and she fell to her knees. Ms.

Potier was assisted to her feet by Nurse Cohen and taken to another treatment room

to sit down. Her husband was called and arrived approximately forty minutes later

to take her back to Parks, Louisiana.

In her deposition testimony, Ms. Potier testified that none of the employees

of LGMC had done anything to cause her entanglement in the gurney straps or

subsequent fall. Therefore, she would be unable to carry her burden of proof

pursuant to La.Civ.Code art. 2320, for any alleged negligence of an employee of

LGMC. Further, since it is undisputed that LGMC did not have ownership or

control of the gurney and no notice of any vice or defect, there likewise is no

liability under La.Civ.Code art. 2317.1.

CONCLUSION

For the foregoing reasons, we affirm the June 12, 2015 judgment of the trial

court. After a de novo review, there are no material facts that preclude the trial

court’s judgment granting summary judgment in favor of Lafayette General

Medical Center and dismissing Karen Potier’s claims with full prejudice and at her

cost. All costs of this appeal are assessed to Karen Potier.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts
of Appeal, Rule 2–16.3

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