Judith Henry and Harris Henry VS NOHSC Houma #1, L.L.C. and Colony Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 0738 JUDITH HENRY AND HARRIS HENRY NOHSC HOUMA 1 L AND C COLONY INSURANCE COMPANY I On Appeal from the 32nd Judicial District Court Parish of Terrebonne Louisiana Docket No 156 Division E 585 Honorable Randall L Bethancourt Judge Presiding Michael J Billiot Houma LA Attorney for J McCaleb Bilbro Attorney for The Javier Law Firm L C Defendants Appel lees New Orleans LA NOHSC Houma 1 L and C Colony Insurance Company Plaintiffs Appellants Judith Henry and Harris Henry BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J Judgment rendered a C I a tcw S JUN 2 8 2012 PARRO I Judith and Harris Henry appeal a judgment granting summary judgment in favor of defendants NOHSC Houma 1 L NOHSC and Colony Insurance Company C Colony and dismissing their claim for damages suffered by Ms Henry when she was injured in a fall at NOHSC restaurant s For the following reasons we affirm the judgment FACTUAL AND PROCEDURAL BACKGROUND On March 13 2008 Ms Henry was a patron at NOHSC restaurant in Houma s Louisiana where she and her husband had dined on at least six occasions during the month since it opened Ms Henry was 74 years old and had used either a cane or a walker for support since having two hip replacements some years earlier and to counteract the effects of diabetic neuropathy in her feet On that day she was having lunch with a group of friends who had participated that morning in a YMCA aquatic therapy class for arthritis which was led by Ms Henry When the group arrived at the restaurant they found their table and then went to the counter to place their orders and get soft drinks After Ms Henry placed her order and got her soft drink at the counter she began to walk back across the carpeted floor to the table She was using a cane and one of her friends was walking ahead of her carrying her soft drink The route back to the table was the same general route through the restaurant as they had used when approaching the counter Ms Henry had walked about fifteen or twenty feet toward the table when she fell She said in a deposition that she was stepping with her right foot when her toe got caught in the carpet her foot went backwards and she fell landing on the foot and breaking her right ankle She said she always looked down when she used the cane so she could see where to place it as she walked Ms Henry said she did not notice anything about the carpet to indicate a danger nor was there any food or other substance on the floor where she fell However although the 1 The acronym in the company name represents the New Orleans Hamburger and Seafood Company 2 carpet was not frayed or worn she stated it was uneven because it had little squares that formed its weave As a result of this fall Ms Henry had to undergo four surgeries to stabilize her right ankle and foot and was essentially wheelchair bound On February 17 2009 Mr and Mrs Henry filed suit for the damages they had incurred as a result of her fall naming NOHSC and its insurer Colony as defendants On April 1 2010 NOHSC and Colony filed a motion for summary judgment supported by excerpts from Ms Henry deposition an affidavit from Paul McGoey NOHSC s s managing partner and an affidavit from Donald Maginnis a registered architect with attachments consisting of photographs of the restaurant interior a hand drawn s diagram of the restaurant interior and excerpts from the 2006 Life Safety Code s Handbook The motion was set for hearing on May 7 2010 but was continued at the Henrys request until June 18 2010 On June 16 2010 the Henrys filed an opposition memorandum supported by excerpts from Paul McGoey deposition excerpts from the s deposition of Kevin McKnight NOHSC general manager an affidavit from Trepp s Lombard the owner and operator of TREPCO a construction company an affidavit from Tracy Peltier a physical therapist and a copy of the NOHSC employee handbook At the hearing on the motion the court noted that the Henrys opposition and supporting affidavits had not been filed timely Counsel for the defendants moved to strike the affidavits as untimely pursuant to LSAC art 966 and District Court P C 8 Rule 9 The court granted the motion to strike and did not consider the affidavits b when ruling on the motion but did allow the Henrys lawyer to present oral argument 2 In a supplemental and amending petition they also named as a defendant the company that had installed the carpet in the restaurant Wright Floor Covering Inc Wright This company eventually filed a motion for summary judgment which the Henrys did not oppose and which was granted by the court 3 The party opposing a motion for summary judgment 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 LSA C art 1313 within the time limits set forth in the Uniform Rules of Louisiana P District Courts Rule 9 LSAC art 966 District Court Rule 9 provides in pertinent part A P C 6 b party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing The time limitation established by Article 966 for the serving of affidavits in opposition to a motion for summary 6 judgment is mandatory Affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court Buaaage v Volks Constructors 060175 La 5 928 So 536 536 per curiam 06 2d isclair G v Bonn val 042474 La App 1st Cir 12 928 So 39 42 05 22 2d 01 After hearing arguments and considering the evidence presented by the parties the court ruled in favor of the defendants granting the motion for summary judgment and dismissing the Henrys claims with prejudice The judgment was signed on June 30 2010 The Henrys filed a motion for new trial which was denied by the court after a hearing This judgment was signed on September 22 2010 The Henrys then appealed the June 30 2010 judgment APPLICABLE LAW Motionforr Judgment Summary A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant Duncan v 11 Ins Co 06363 La 11 950 So 544 546 see LSA A S 06 29 2d P C art 966 Appellate courts review summary judgment de novo using the same criteria that govern the trial court consideration of whether summary judgment is s appropriate namely whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law 04 21 1 864 So 129 137 2d Costello v Hardy 03 1146 La The summary judgment procedure is favored and is designed to secure the just speedy and inexpensive determination of every action LSAC art 966 P C 2 A A motion for summary judgment shall be granted if the pleadings depositions answers to interrogatories and admissions on file together with any affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law LSA C art 966 Giscl it v Bonnev I 042474 La P 6 App 1st Cir 12 928 So 39 41 The burden of proof on summary judgment 05 22 2d remains with the mover However if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the s mover burden on the motion does not require him to negate all essential elements of the adverse party claim action or defense but rather to point out to the court that s E there is an absence of factual support for one or more elements essential to the adverse party claim action or defense s Thereafter if the adverse parry 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 LSA P C art 966 Once the motion for summary judgment has been properly 2 C supported by the moving party the failure of the non moving party to produce evidence of a material factual dispute mandates the granting of the motion Pugh v St Tammanv Parish Sch Bd 07 1856 La App 1st Cir 8 994 So 95 97 writ 08 21 2d enied d 082316 La 11 996 So 1113 see also LSAC art 967 08 21 2d P C 6 A genuine issue is a triable issue or one on which reasonable persons could disagree Champagne y Ward 033211 La 1 893 So 773 777 05 19 2d A material fact is a fact the existence or non existence of which may be essential to the plaintiffs cause of action under the applicable theory of recovery Kennedy v Sheriff of East Baton Rouge 051418 La 7 935 So 669 687 06 10 2d Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case Boudreaux v Mid Continent Cas Co 052453 La App 1st Cir 11 950 06 3 2d So 839 843 writ denied 062775 La 1 948 So 171 07 26 2d UaWillft of Owner CustodianJMerchant The general rule is that the owner or custodian of property has a duty to keep the property in a reasonably safe condition The owner or custodian must discover any unreasonably dangerous condition on the premises and either correct the condition or warn potential victims of its existence Smith v The Runnels Sch Inc 041329 La App 1st Cir 3 907 So 109 112 This duty is the same under theories of 05 24 2d negligence or strict liability Under either theory the plaintiff has the burden of proving that 1 the property that caused the damage was in the custody of the defendant 2 the property had a condition that created an unreasonable risk of harm to persons on the premises 3 the unreasonably dangerous condition was a cause in fact of the 5 resulting injury and 4 defendant had actual or constructive knowledge of the risk Id see also LSA C arts 2315 2317 and 2317 1 Concerning the burden of proof in claims against merchants LSA R 9 S 2800 6 provides in pertinent part 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 premises for damages as a result of an injury death or s loss sustained because of a fall due to a condition existing in or on a s merchant 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 that 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 ANALYSIS The Henrys contend on appeal that the court erred in granting the defendants motion for summary judgment because a genuine issue of material fact exists as to whether the carpet on which Ms Henry fell contains fibers of varying lengths constituting a condition presenting an unreasonable risk of harm They also assign as error the court finding that NOHSC did not have notice of the condition that resulted s in Ms Henry fall when NOHSC chose the carpet that was installed at its restaurant s and therefore is presumed to know of its condition In support of the motion for summary judgment NOHSC and Colony included an affidavit from Paul McGoey which stated that as the managing partner of NOHSC he had personal knowledge of information and documents regarding the restaurant He said that NOHSC decided to use carpets on the floors in the dining area because uncarpeted floors tend to become slippery when food and other substances fall on 1 them NOHSC hired Wright to provide and install the carpet which was a commercial grade carpet and was installed on February 8 2008 Since the restaurant sopening on February 14 2008 the carpet had not been altered in any way In the month before Ms Henry fall NOHSC did not receive any complaints from patrons employees or s anyone else about the restaurant sfloor or carpet nor did any accidents occur which were attributed in any way to either the floor or carpet NOHSC did not observe any problems or defects in either the floor or carpet In Ms Henry deposition excerpts of which were also attached in support of the s defendants motion she said that she and Mr Henry went often to the restaurant especially on weekends She estimated they had been there six times since it opened They always ate inside and she had no difficulty walking across the floor of the restaurant She had never tripped slipped or fallen on the carpeted floor nor had she seen anyone else slip and fall in the restaurant On the day she fell she and her group found their reserved table and then went to the counter to order As she walked toward the counter she had no trouble walking on the carpet and did not notice anything on the floor that looked like it presented a hazard or a danger On the way back to her table her toe got caught but she did not know how that occurred She stated All I know is the toe was caught and I couldn move and I lost my balance and t fell on my foot Her foot was bent backwards underneath her when she landed on it Right before her fall she was looking down and ahead in order to see where she could put her cane She saw nothing about the carpet that indicated there was a danger that her toe might get caught The area where she fell was in the same general pathway that she had traversed to get to the counter She said it appeared to her that the carpet on the floor was an indooroutdoor carpet and it had little squares on it The surface was not a smooth smooth top but she saw no unevenness in the carpet or floor where she fell The carpet was not slippery was not torn up or worn in any way and was not a shag type carpet She saw no food or foreign objects on the floor that might have caused her to fall At that time Ms Henry had been using a cane for about VA five or six years She carried her cane in her left hand because she had always been told that you carry the cane in the opposite of the side that ailing Ms Henry said s the only thing she knew that might have caused her fall was that the carpet wasn tan even surface It looked like it had little squares in it She said the squares were in the weave of the carpet and she could not feel the weave of the carpet under her feet as she walked Donald Maginnis a licensed architect who was NOHSC liability expert inspected s the restaurant premises and provided an affidavit concerning the condition of the floor and carpet His inspection of the premises and review of applicable building and safety codes did not reveal any defects or coda violations restaurant was level throughout He said the carpeted area of the He described the carpet as a standard commercial grade wall to wall carpet commonly used in restaurants which was properly affixed to the floor with an adhesive It featured squares in its design However the squares merely represented changes in the color pattern of the carpet as opposed to changes in the height or weave of the carpet Maginnis said the carpet was not defective or dangerous and was an approved walking surface He attached sketches of the restaurant layout photographs and copies of relevant provisions of the Life Safety Code The photographs show that each square has a pattern of lines going across it in one direction The squares are laid out in such a way that the direction of the lines alternates from square to square In other words looking at the floor one square has the lines running north and south and the squares on either side of it have the lines running east and west This pattern is alternated with each row of squares to give the overall effect of a muted checkerboard The Henrys have the burden of proof at trial that NOHSC had custody of the property that caused the damage that the property had a condition that created an unreasonable risk of harm to persons on the premises that the unreasonably dangerous condition was a cause in fact of Ms Henry resulting injury and that s NOHSC had actual or constructive knowledge of the risk On the motion for summary 3 E judgment NOHSC had to point out that there was an absence of factual support for one or more elements essential to the Henrys claim The evidence submitted in support of the motion points out an absence of factual support for the essential element that the carpet or floor where Ms Henry fell had a condition that created an unreasonable risk of harm to her Whether the carpet fibers were all one length or were of uneven lengths to create a pattern the evidence shows that this was new commercial grade carpet commonly used in restaurants that it had been professionally installed just one month earlier and that it had no frayed edges worn spots or loose threads that could have presented a hazard The Henrys contend that Ms Henry s statement that the carpet was uneven and had a pattern created by the weave as contrasted to Maginnis statement that the carpet pile had no changes in height or s weave creates a genuine issue of material fact While these conflicting statements may present a factual issue that factual issue does not rise to the level of a genuine issue of material fact unless there is some evidence that the carpet surface created an unreasonable risk of harm patterns Many carpets have variations in pile height to create This in itself does not make a carpet defective or dangerous Therefore this factual issue is not material The Henrys opposition to the motion did not establish that they would be able to satisfy their evidentiary burden of proof at trial that the carpet surface presented an unreasonable risk of harm to Ms Henry Therefore there is no genuine issue of material fact and the motion was properly granted CONCLUSION For the above stated reasons we affirm the judgment of the district court granting NOHSC and Colony motion for summary judgment and dismissing the s s Henrys claims All costs of this appeal are assessed to the Henrys AFFIRMED 4 Having so concluded we pretermit consideration of the Henrys other assignment of error 9
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