Ronnaesa Reider v. Christus Health Southwestern Louisiana, Etc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-959

RONNAESA REIDER

VERSUS

CHRISTUS HEALTH SOUTHWESTERN LOUISIANA, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2013-5129
HONORABLE ROBERT L. WYATT, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and Shannon J. Gremillion,
Judges.

REVERSED AND REMANDED.

Jerald L. Album
Suzanne M. Ganucheau
Reich, Album & Plunkett, L.L.C.
3850 N. Causeway Boulevard, Suite 1000
Metairie, LA 70002
(504) 830-3999
COUNSEL FOR DEFENDANT/APPELLANT:
Hospital Housekeeping Systems, LLC

Mark A. Delphin
Arthur J. O’Keefe
Delphin Law Offices
626 Broad Street
Lake Charles, LA 70601
(337) 439-3939
COUNSEL FOR PLAINTIFF/APPELLEE:
Ronnaesa Reider

Marne Jones
Beirne, Maynard & Parsons, LLP
601 Poydras Street, Suite 2200
New Orleans, LA 70130-6097
(504) 586-1241
COUNSEL FOR DEFENDANT/APPELLEE:
Christus Health Southwestern Louisiana

AMY, Judge.

The plaintiff filed suit against the defendant hospital and the defendant

maintenance company due to injury allegedly sustained in a fall at the hospital.

She filed a motion for summary judgment against the maintenance company,

submitting a video of the incident as well as witness statements indicating that

liquid was on the floor. Following a hearing, the trial court entered summary

judgment in favor of the plaintiff. The resulting judgment indicated both that the

maintenance company was fully at fault in causing the plaintiff’s fall and that the

plaintiff was free of fault. The maintenance company appeals. For the following

reasons, we reverse and remand.

Factual and Procedural Background

The plaintiff, Ronnaesa Reider, filed this matter after falling in the hallway

of Christus Health Southwestern Louisiana d/b/a Christus St. Patrick Hospital. By

her petition, the plaintiff alleged that, on August 21, 2013, she and a friend, Brandi

Jones, were visiting the hospital and that they were “walking down a hallway

when, suddenly and without warning, she slipped and fell due to water and/or

liquid on the floor surface.” She alleged that the “fall caused her to sustain serious

and grievous personal injuries and other damages.” Specifically, the plaintiff

alleged injury to her knee. She initially named Christus St. Patrick Hospital as the

defendant, contending that the hospital was negligent and/or strictly liable for,

among other things, allowing liquid to remain on the floor surface. It also

advanced liability based upon a failure to warn. She sought both general and

special damages related to the alleged injury.

By amended petition, the plaintiff added Hospital Housekeeping Systems,

Ltd. d/b/a Hospital Housekeeping Systems, LLC (HHS), as a defendant. 1 The

plaintiff again alleged negligence and/or strict liability against the defendants

asserting liability due to, among other things, the presence of a liquid on the floor,

failure to warn of the danger of slipping and/or falling, and failure to post visible

warning signs. By its answer to the petition, HHS denied the plaintiff’s allegations

and asserted that “the sole and proximate cause of the accident sued upon herein

were the acts, commissions, omissions and negligence of others for whom this

defendant is not answerable or responsible.”

Thereafter, the plaintiff filed a motion for summary judgment and asserted

that she was entitled to judgment indicating that HHS was “one hundred (100%) at

fault in causing the fall made the basis of the above claim for damages.” She

further sought a determination that she was “free of fault[.]” In support of her

motion, the plaintiff included an excerpt from her deposition, as well as one from

Brandi Jones, in which both women addressed her fall. Both women identified a

wet streak on the floor at the time of the incident.

The plaintiff also introduced surveillance footage from the hallway in the

minutes before, during, and after the plaintiff’s fall. In her memorandum in

support of the motion for summary judgment, the plaintiff included still images

captured from the video, and asserted that they captured HHS employee Jamon

Thomas using a scrubber machine on the floor “[m]oments before [her] fall[.]”

The plaintiff noted the machine’s movement in the hallway prior to the fall and

1
This matter appears before the court on a designated record with limited background
information available for reference. See Uniform Rules—Courts of Appeal, Rule 2-1.17. See
also La.Code Civ.P. art. 2128. However, HHS’s brief to this court indicates that it “provided
cleaning services at the hospital pursuant to a contract entered into between Christus St. Patrick
Hospital and HHS.”

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suggested that “[i]nstead of cleaning and drying the floor as the machine makes its

“S” maneuver, it left a streak of transparent water and cleaning fluid on the floor.”

Again referencing photographic images from the video, the plaintiff asserted that

after Mr. Thomas left the scene, she and Ms. Jones entered the hallway, and that,

after she stepped “forward in the area where the machine made its “S” turn,” her

left foot slid and she fell “hard on her right knee.” Referencing her deposition

testimony, the plaintiff explained that she then identified a streak of liquid on the

floor and that her pant leg was wet. The plaintiff then noted that she thereafter

stopped hospital personnel, showing the person that there was water on the floor

and that the video images reveal Mr. Thomas returning to the area with the

scrubber machine. The plaintiff also introduced the affidavit of Mr. Thomas,

noting that he explained therein that he returned to the hallway and that, upon

cleaning the area, he identified a narrow streak of liquid on the floor, appearing to

him that the wiper of the machine failed to remove the subject liquid.

In opposition, HHS suggested that its own evidence demonstrated genuine

issues of material fact regarding whether a foreign substance was on the floor,

whether it had actual or constructive knowledge of that condition, or whether it

created such a condition. In particular, HHS noted that in her deposition, the

plaintiff explained that the streak of water ran the length of the hall. This

description, HHS asserted, differed from her affidavit and from Ms. Jones’s

deposition, wherein she only identified drops in a line, but explained that the streak

was only three to five feet long.

Turning to the video footage, HHS suggested that the video identified “a

clean, clear hallway” and that it did not appear different before or after Mr.

Thomas is shown passing with the scrubber machine. It further asserted that an

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unidentified male shown on the video prior to the plaintiff’s arrival is shown to

“place[] his left foot in the exact spot in which Ms. Reider claims to have slipped

on water, which occurs exactly 0:05 seconds before Ms. Reider slips.” It suggests

that the fall therefore could have “been caused by the shoe of the unidentified male

that steps on the exact spot 0:05 seconds prior” to the fall.

Additionally, HHS argued that the videotape rendered Mr. Thomas’s

affidavit unreliable, insofar as he had explained therein that he discovered liquid

upon his return to the scene, but the video revealed that he did not stop and inspect

the area. Rather, HHS asserted that Mr. Thomas re-entered the hallway with the

scrubber machine, but that the video did not evidence that the squeegee function of

the machine was engaged at that time. In this regard, HHS further offered the

affidavit of Sutton Francis, who explained that in his role as “PM Assistant

Director at HHS” at Christus St. Patrick Hospital, he had personal knowledge of

the scrubber machine operated in the surveillance video. He stated in the affidavit

that, having viewed the video, it appeared “that both the front scrubber pad and the

back squeegee were raised and therefore, the machine is not being used to scrub

the floor” and that “[w]hen the scrubber head is up, the machine is not placing any

liquid on the ground.” He concluded the affidavit by opining that: “Because both

the front scrubber pad and back squeegee are up when the HHS employee passes

down the hall prior to Ms. Reider’s incident, if there is any liquid on the floor, it

neither came from nor was affected (smeared) by the Tennet T3 Floor Scrubber

machine.”

Finally, HHS introduced an excerpt of Mr. Thomas’s deposition and asserted

that it rendered his affidavit unreliable. It argued that his testimony, coupled with

the surveillance video, countered the plaintiff’s “insistence that she fell on a

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foreign substance.” HHS suggested instead that the video and derivative

photographs revealed “no obvious substance on the floor” and that it “appears to be

in the exact same condition before and after Mr. Thomas passes with the scrubber

machine before the plaintiff’s fall.” It further referenced passages from Mr.

Thomas’s deposition in which he denied seeing any liquid on the floor either

before or after the accident. Rather, he explained that the operator could feel the

machine leaving water and that he “didn’t feel it at all.”

In reply,2 the plaintiff offered a more expansive excerpt from Mr. Thomas’s

deposition, and suggested that his testimony and Mr. Francis’s affidavit were

speculative with regard to whether liquid was present on the floor. She contends

that the speculation offered by HHS was inadequate to overcome her own

affirmative statements regarding the presence of liquid as well as that of Ms. Jones.

Following a hearing on the motion for summary judgment, the trial court

rendered judgment in favor of the plaintiff. The resulting judgment determined

that HHS was “one hundred (100%) percent at fault in causing the fall made the

basis of the above claim for damages[.]” The judgment further indicated that the

plaintiff was “free of fault.” It reserved the issues of injuries and damages for

future consideration.

By subsequent judgment, the trial court denied HHS’s motion for a new trial

and determined that the underlying judgment constituted a final judgment “for

purposes of an immediate appeal because there is no just reason for delay.” See

La.Code Civ.P. art. 1915(B)(1).

2
Although the plaintiff’s “Reply to Opposition of HHS, L.L.C.” was not included in the
designated record, the parties supplemented the record with the filing by Joint Stipulation. See
La.Code Civ.P. art. 2128 (providing, in part, that: “a party or the trial court may cause to be filed
thereafter any omitted portion of the record as a supplemental record.”).

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HHS appeals, assigning the following as error:

1) The trial court erred as a matter of law in finding that
Reider met her burden of proof on the issue of HHS’s liability as she
did not prove that all the elements for non-merchant liability were
met.
2) The trial court erred as a matter of law in granting
Reider’s Motion for Partial Summary Judgment, declaring that HHS is
100% liable for Reider’s injuries as there are questions of fact as to
HHS’s knowledge of the risk.
3) The trial court erred as a matter of law in denying HHS’s
Motion for New Trial.
Discussion

Louisiana Code of Civil Procedure Article 966

Louisiana Code of Civil Procedure Article 966(A)(2)3 indicates that “[t]he

summary judgment procedure is 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.” The

Article further instructs that summary judgment “shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and admissions, together with

the affidavits, if any, admitted for purposes of the motion for summary judgment,

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)(2).

In Suire v. Lafayette City-Parish Consol. Government, 04-1459, p. 11 (La.

4/12/05), 907 So.2d 37, 48 (citation omitted), the supreme court explained that “[a]

genuine issue exists where reasonable persons, after considering the evidence,

3
While La.Code Civ.P. art. 966 was amended by 2015 La. Acts No. 422, § 1, its
provisions became effective on January 1, 2016, a date after the plaintiff filed the motion for
summary judgment under review. Accordingly, we consider this matter under the earlier version
of Article 966. See 2015 La. Acts No. 422, § 2 (providing that “[t]he provisions of this Act shall
not apply to any motion for summary judgment pending adjudication or appeal on the effective
date of this Act.”).

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could disagree. In considering “whether an issue is genuine, a court should not

consider the merits, make credibility determinations, evaluate testimony or weigh

evidence.” Id. The supreme court noted that a fact is material in nature if it is one

that will matter at the trial on the merits. “Any doubt as to a dispute regarding a

material issue of fact must be resolved against granting the motion and in favor of

trial on the merits.” Id.

Notably, the burden of proof in seeking summary judgment “remains with

the movant.” La.Code Civ.P. art. 966(C)(2). 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[.]” Id.

Instead, the moving party is required “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.” Id. “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.” Id.

On appeal, a trial court’s determination to grant a motion for summary

judgment is reviewed de novo. Billeaudeau v. Opelousas Gen. Hosp. Auth., 16-

0846 (La. 10/19/16), _ So.3d _. The appellate court uses the identical criteria that

governed the trial court’s consideration of whether summary judgment should be

entered. Id.

Motion for Summary Judgment

Recognizing the de novo standard of review applicable here, HHS suggests

that the plaintiff failed to carry her burden of proving “that there was no genuine

issue of fact as to whether HHS knew or should have known of a liquid on the

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floor when Thomas cleaned the area.” HHS references the evidence presented in

support of the plaintiff’s motion for summary judgment and argues there was no

such evidence indicating either that Mr. Thomas knew there was liquid on the

floor, or that he failed to remedy such a condition. Pointedly, HHS asserts that the

plaintiff presented “no evidence to show that the substance was on the floor for

such a period of time that the HHS employee, by the exercise of ordinary care and

diligence, must have known of its existence in general and could have guarded the

public from injury.”

We first point out that the parties differ on the elements that the plaintiff was

required to demonstrate. Central to their dispute is whether the plaintiff was

required to demonstrate actual or constructive knowledge of the existence of liquid

on the floor. The plaintiff answers that question in the negative, asserting that the

standard elements of the duty/risk analysis are applicable to this case, which she

styles in her brief as involving “simple negligence[.]” See La.Civ.Code art. 2315;4

La.Civ.Code art. 2316.5 Thus, citing Roberts v. Benoit, 605 So.2d 1031 (La.1992)

(on rehearing), the plaintiff suggests that her ultimate burden of proof would have

required her to demonstrate that: 1) the defendant had a duty to conduct itself to a

specific standard; 2) the defendant failed to do so and, therefore, breached its duty;

3) the substandard conduct was a cause-in-fact of the claimed injuries; 4) the

substandard conduct was a legal cause of those injuries; and that 5) actual damages

resulted. The plaintiff also asserts that, since HHS’s presence at the hospital was

4
Louisiana Civil Code Article 2315(A) provides that: “Every act whatever of man that
causes damage to another obliges him by whose fault it happened to repair it.”
5
Louisiana Civil Code Article 2316 provides that: “Every person is responsible for the
damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of
skill.”

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in its role as a contractor, it is “deemed to have constructive knowledge of the

negligent act he/she commits.”

Contrarily, HHS cites Foster v. Henshaw, 06-414 (La.App. 3 Cir. 9/27/06),

939 So.2d 625, suggesting that, as a non-merchant defendant, the plaintiff was

required to show that: 1) it had custody of the property causing the purported

damage; 2) the property had a condition presenting an unreasonable risk of harm;

3) the unreasonable risk of harm presented was a cause-in-fact of the purported

injury; and that 4) the defendant had actual or constructive knowledge of the risk

of harm.

However, and notwithstanding the plaintiff’s observation that HHS appears

in this case as a contractor, it is notable that the subject accident occurred in a

hospital. Certainly, jurisprudence indicates that slip-and-fall claims against a

hospital are not controlled by La.R.S. 9:2800.6,6 as applicable to merchants. See

6
Entitled “Burden of proof in claims against merchants[,]” La.R.S. 9:2800.6 provides
that:

A. A merchant owes a duty to persons who use his premises to exercise reasonable
care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty
includes a reasonable effort to keep the premises free of any hazardous conditions which
reasonably might give rise to damage.

B. In a negligence claim brought against a merchant by a person lawfully on the
merchant’s premises for damages as a result of an injury, death, or loss sustained because
of a fall due to a condition existing in or on a merchant’s premises, the claimant shall
have the burden of proving, in addition to all other elements of his cause of action, all of
the following:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk
of harm was reasonably foreseeable.

(2) The merchant either created or had actual or constructive notice of the condition
which caused the damage, prior to the occurrence.

(3) The merchant failed to exercise reasonable care. In determining reasonable care,
the absence of a written or verbal uniform cleanup or safety procedure is insufficient,
alone, to prove failure to exercise reasonable care.

C. Definitions:

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Bell v. Carencro Nursing Home, Inc., 16-0190 (La.App. 3 Cir. 9/28/16), 202 So.3d

499, writ denied, 16-1918 (La. 12/16/16), _ So.3d _; Smith v. Northshore Reg.

Med. Ctr., Inc., 16-0628 (La.App. 1 Cir. 1/26/15), 170 So.3d 173. Rather, a panel

of this circuit has recently explained that a plaintiff pursuing a slip-and-fall case

against a hospital or nursing home must demonstrate that he or she sustained injury

as a result of a foreign substance on the hospital premises. Bell, 202 So.3d 499

(relying on Neyrey v. Touro Infirmary, 94-78 (La.App. 4 Cir. 6/30/94), 639 So.2d

1214). Thereafter, the burden shifts to the hospital to establish that it exercised

reasonable care commensurate with the circumstances involved. Id. See also

Smith, 170 So.3d 173.

Yet, and despite HHS’s argument regarding whether it had knowledge of

any such condition, the plaintiff was required, in the least, to demonstrate that no

genuine issues of material fact existed with regard to whether her injuries were

caused as a result of a foreign substance on the hospital premises. Upon review of

the parties’ submissions, we conclude that she failed to do so. Undoubtedly, the

plaintiff presents compelling video surveillance footage that included the events

now at issue. Namely, it reveals the floor cleaning activities by Mr. Thomas and

the plaintiff’s subsequent fall in the hallway. Both parties note the short period of

(1) “Constructive notice” means the claimant has proven that the condition existed for
such a period of time that it would have been discovered if the merchant had exercised
reasonable care. The presence of an employee of the merchant in the vicinity in which
the condition exists does not, alone, constitute constructive notice, unless it is shown that
the employee knew, or in the exercise of reasonable care should have known, of the
condition.

(2) “Merchant” means one whose business is to sell goods, foods, wares, or
merchandise at a fixed place of business. For purposes of this Section, a merchant
includes an innkeeper with respect to those areas or aspects of the premises which are
similar to those of a merchant, including but not limited to shops, restaurants, and lobby
areas of or within the hotel, motel, or inn.

D. Nothing herein shall affect any liability which a merchant may have under Civil
Code Arts. 660, 667, 669, 2317, 2322, or 2695.

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time between the two occurrences in support of their respective positions. 7

Additionally, the plaintiff notes that both she and Ms. Jones provided witness

testimony, via deposition and affidavit, that liquid was located on the hallway

floor. Mr. Thomas also explained by affidavit that he too found liquid in the area

when he returned after being informed of the fall.

Yet, in opposition, HHS provided the trial court with Mr. Thomas’s

deposition wherein he explained that, to the extent the scrubber machine left a

“streak” of liquid on the floor, it was dry by the time he travelled two or three feet.

He further denied having seen the machine’s squeegee make streaks or leave

wetness before the plaintiff’s fall. Mr. Thomas further explained that, as the

operator, he could “feel” when liquid was leaving the machine and stated that he

“didn’t feel it at all” at that time. Additionally, Mr. Francis stated by affidavit that,

upon review of the video, it appeared that the scrubber pad and the squeegee were

raised at the time it travelled through the hallway and that when the scrubber is

raised, the machine does not leave liquid on the floor.

In short, and although the surveillance video could allow a trier of fact to

reach certain factual findings, the video alone establishes only that Mr. Thomas

maneuvered the scrubber machine through the hallway and that the plaintiff fell

afterwards in the same area. It does not, alone, demonstrate that liquid was

present, nor that HHS was responsible for the foreign substance’s presence. Of

course, the plaintiff would be required to demonstrate both of these in her claim

against HHS, as the contractor. Instead, the parties attempt to interpret the video

footage through the affidavits and deposition testimony offered in their respective

7
The plaintiff’s brief indicates that the fall occurred approximately 40 seconds after Mr.
Thomas is seen passing with the scrubber machine, whereas HHS indicates that 33 seconds
elapsed during that time.

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submissions. But, that testimony differed, at times, as to the presence, or potential

presence, of the alleged foreign substance. As such, the necessary factual

conclusions are dependent upon credibility determinations, evaluations of

testimony, and weighing of evidence. However, the supreme court has explained

that, in determination of whether “an issue is genuine, a court should not consider

the merits, make credibility determinations, evaluate testimony or weigh

evidence.” Suire, 907 So.2d at 48. Furthermore, “[a]ny doubt as to a dispute

regarding a material issue of fact must be resolved against granting the motion and

in favor of trial on the merits.” Id. at 48.

Accordingly, based on the factual conclusions apparent from the parties’

submissions, we find that the trial court erred in entering summary judgment in

favor of the plaintiff. We reverse that judgment below and remand for further

proceedings.

DECREE

For the foregoing reasons, the summary judgment entered in favor of the

plaintiff/appellee, Ronnaesa Reider, and against the defendant/appellant, Hospital

Housekeeping Systems, LLC, is reversed and this matter is remanded. Costs of

this proceeding are assessed to the plaintiff/appellee.

REVERSED AND REMANDED.

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