Freda Hebert and Michael Hebert v. Professional Outsource Services,llc and Lafayette City-Parish Consolidated Gov.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-347

FREDA HEBERT AND MICHAEL HEBERT

VERSUS

PROFESSIONAL OUTSOURCE SERVICES, LLC
AND LAFAYETTE CITY-PARISH CONSOLIDATED
GOVERNMENT

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NUMBER C-20214820
HONORABLE JOHN E. CONERY, AD HOC

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SHARON DARVILLE WILSON
JUDGE

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Court composed of Jonathan W. Perry, Sharon Darville Wilson and Guy E.
Bradberry, Judges.

AFFIRMED.

Darrell J. Loup
Jonathan D. Mayeux
Law Office of Darrell J. Loup, LLC
9270 Siegen Lane, Suite 601
Baton Rouge, Louisiana 70810
(225) 615-7887
Counsel for Plaintiffs/Appellants:
Freda Hebert and Michael Hebert

Brad O. Price
The Price Law Firm
1930 Florida Avenue, South West
Denham Springs, Louisiana 70726
(225) 228-0025
Counsel for Plaintiffs/Appellants:
Freda Hebert and Michael Hebert

Michael J. Remondet, Jr.
Sarah E. Lemoine
Jeansonne & Remondet
Post Office Box 91530
Lafayette, Louisiana 70509
(337) 237-4370
Counsel for Defendant/Appellee:
Lafayette City-Parish Consolidated Government

Gregory Engelsman
301 North Main Street, Suite 2200
Baton Rouge, LA 70825
(225) 224-6865
Counsel for Defendants/Appellees:
Professional Outsource Services, LLC and GuideOne National
Insurance Company

WILSON, Judge.

In this slip and fall case, Freda Hebert (Mrs. Hebert) and her husband, Michael

Hebert, appeal the grant of summary judgment in favor of Lafayette City-Parish

Consolidated Government (LCG) based on immunity under La.R.S. 29:735.

I.

ISSUE

Plaintiffs contend that the trial court committed legal error in granting LCG’s

motion for summary judgment based on the holding that La.R.S. 29:735 provides

tort immunity to LCG as to Plaintiffs’ claims in this case when: (1) LCG’s alleged

negligent act, i.e., the faulty placement of the hand sanitizer dispenser at issue with

no drip tray or rug to catch spillage, was not done in haste, but was done slowly and

deliberately; and (2) LCG did nothing for over four months, from the time of its

alleged negligence act until the time of Plaintiff’s fall, to correct its alleged negligent

act and waited until after the accident at issue to install drip trays and catch rugs.

II.

FACTS AND PROCEDURAL HISTORY

Mrs. Hebert is employed as a bailiff at the Fifteenth Judicial District Court in

Lafayette, Louisiana. On October 13, 2020, she was assigned to Judge Michelle

Breaux, who was presiding over a juvenile matter. While Mrs. Hebert was escorting

a family from one courtroom to another, she slipped and fell allegedly as a result of

hand sanitizer that had spilled on the terrazzo floor. A nearby podium was knocked

down as she fell, and it landed on top of her.

Mrs. Hebert and her husband filed suit against Professional Outsource Service

(POS), the company that sold the sanitizer dispenser; GuideOne National Insurance

Company, as the insurer of POS; and LCG. The Lafayette Parish Sheriff’s Office

(LPSO), as Mrs. Hebert’s employer, intervened in the suit.

Claiming absolute immunity under the Louisiana Homeland Security and

Emergency Assistance and Disaster Act, La.R.S. 29:721 et seq., LCG filed a motion

for summary judgment. On March 3, 2023, Judge John E. Conery signed a judgment

that granted LCG’s motion and dismissed the Heberts’ claims against LCG in their

entirety. The judgment also dismissed the claims of the intervenor in their entirety.

Further, the judgment sustained the Heberts’ objections to POS’ response to the

motion for summary judgment, wherein POS indicated that they intended to argue

the comparative fault of LCG if it were dismissed on summary judgment. This

appeal followed. Finding that the Heberts did not show any genuine issue of material

fact or that there was any exception to the tort immunity afforded by La.R.S. 29:735,

we affirm the trial court’s grant of summary judgment in favor of LCG and the

dismissal of all claims against LCG with prejudice.

III.

STANDARD OF REVIEW

“Appellate courts review summary judgments de novo under the same criteria

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

appropriate.” Schroeder v. Bd. of Sup’rs of Louisiana State Univ., 591 So.2d 342,

345 (La.1991).

IV.

LAW AND DISCUSSION

Louisiana Revised Statutes 29:735(A)(1) provides:

Neither the state nor any political subdivision thereof, nor other
state agencies, nor, except in case of willful misconduct, the employees
or representatives of any of them engaged in any homeland security and

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emergency preparedness and recovery activities, while complying with
or attempting to comply with this Chapter or any rule or regulation
promulgated pursuant to the provisions of this Chapter shall be liable
for the death of or any injury to persons or damage to property as a
result of such activity.

“Emergency Preparedness” is defined as “the mitigation of, preparation for, response

to, and the recovery from emergencies or disasters.” La.R.S. 29:723(6). It has been

recognized that the legislative intent was “to immunize anyone performing

emergency activity who is acting in good faith.” La. Att’y Gen. Op. No. 08-0093

(7/24/08). “Thus, the State, its agencies, and political subdivisions are afforded

complete immunity or injury . . . resulting from emergency preparedness activities.”

Koonce v. St. Paul Fire & Marine Ins. Co., 15-31, p. 3 (La.App. 3 Cir. 8/5/15), 172

So.3d 1101, 1104, writ denied, 15-1950 (La. 11/30/15), 184 So.3d 36. The

Louisiana Health Emergency Powers Act, La.R.S. 29:760 et seq., explicitly makes

La.R.S. 29:735 applicable to public health emergencies such as the COVID-19

pandemic.

LCG claims that it is entitled to immunity pursuant to La.R.S. 29:735 because

its installation of the hand sanitizer dispenser was in direct response to the declared

state of emergency caused by the COVID-19 crisis. Once LCG showed that

immunity applied, the burden shifted to the Heberts to show that genuine issues of

material fact existed regarding any exception to immunity. La.Code Civ.P. art. 966.

In this case, the Heberts concede that there was no willful misconduct by LCG and

argue instead that LCG is not entitled to immunity because it acted so slowly in

installing the dispensers that its actions cannot be said to be an emergency response.

The Heberts acknowledge that a statewide public health emergency was

declared through Proclamation No. 25 JBE 2020 on March 11, 2020. But they

contend that the hand sanitizer dispensers were not ordered until April 28, 2020, and

not installed until June 30, 2020, even though they had been delivered on May 26,

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2020. Brian Vincent (Vincent), the Facilities Manager for LCG, testified that LCG

began talking about installing the dispensers but that he was not given any deadline

within which to install the dispensers. Vincent also testified that they considered

getting dispensers and sanitizers from Staples in March, but there were no touchless

dispensers1 in stock and an availability date could not be determined. Vincent stated

that the purchasing department did obtain bottles of hand sanitizer and handed them

out to the various departments but that dispensers were on backorder everywhere.

And, although the Heberts attempt to make much of the delay between the arrival of

the dispensers and the date they were installed, Vincent testified that they started

installing the dispensers when they were received but the delay in installation of the

ones at the courthouse was probably caused by the fact that they were being installed

everywhere by minimal staff.

Mrs. Hebert testified that she would place paper towels on the floor and a

garbage can underneath the dispensers to catch the leaking hand sanitizer and that

the hand sanitizer had been leaking for so long that it had scarred the floor and taken

the paint off the wall. She was attempting to show that LCG knew of the leakage

and did nothing to correct the problem. But Mrs. Hebert also testified that she had

never seen the dispenser in question leak and had not made any complaints about

that particular dispenser. Mrs. Hebert was unable to say that the liquid on the floor

was definitely sanitizer and could not say how liquid got on the floor. None of this

testimony is relevant to whether LCG’s is entitled to immunity.

We find that none of the arguments advanced by the Heberts present a genuine

issue of material fact regarding LCG’s entitlement to immunity pursuant to La.R.S.

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LCG ultimately purchased dispensers that were not touchless because Vincent was told
that the touchless dispensers leaked too much and the refills were more expensive.

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29:735.2 The Heberts have presented no evidence to show that the actions of LCG

were not “emergency preparedness activities” taken in response to a public health

emergency. Furthermore, it is undisputed that at the time of Mrs. Hebert’s accident,

the State was still under an emergency declaration. Therefore, we find no error in

the trial court’s grant of summary judgment in this case.

V.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s grant of summary

judgment in favor of Lafayette City-Parish Consolidated Government, dismissing

the Heberts’ claims in their entirety with prejudice. All costs of this appeal are

assessed to Appellants, Freda Hebert and Michael Hebert.

AFFIRMED.

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We also note LCG’s arguments that the Heberts’ opposition to the motion for summary
was deficient and should be stricken and that some of the exhibits relied upon by the Heberts
should not be considered because they are inadmissible hearsay, not based on personal knowledge,
are non-expert opinion, or are a mischaracterization of testimony, such that they cannot create a
genuine issue of material fact. These objections were made in the trial court, and when asked for
a ruling on the objections, the trial court stated: “they’re immaterial. The immunity statute applies
so it doesn’t really matter what the exhibits say. I didn’t even read them. Once the immunity
statute applies[,] then there’s no factual issue[] that come[s] into play from the exhibits.” We agree
with the trial court.

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