Vicky Edler VS South Baton Rouge Hotel, L.L.C. d/b/a Hampton Inn & Suites
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA r COURT OF APPEAL lQ 1 A 0 J FIRST CIRCUIT NUMBER 2012 CA 1164 01 2C0 464 I VICKY ELDER VERSUS HILTON HOTELS CORPORATION Judgment Rendered February 15 2013 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Docket Number 580 743 Honorable Todd Hernandez Judge Presiding x Scotty Counsel for Plaintiff E Chabert Henri M Saunders Vicky Elder Baton Rouge LA David P Peyton New Salley C Lambert Orleans LA D Scott Rainwater Baton Rouge LA Counsel for Defendants Party Third Appellants Plaintiffs South Baton Rouge Hotel and Hotel South Management Counsel for Defendant Third Defendant Party Appellee Roy Hendrick David M Cohn Counsel for Defendant Baton BIC Group LLC Rouge John W LA Ellinghausen Michael L Dashazo New Orleans LA Counsel for Intervenor Louisiana Employer Mutual Insurance s Company r BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM JJ J J C5 JC r mc SS l IS isG WHIPPLE C J This is an appeal from a summary judgment rendered in favor of Roy Hendrick dismissing plaintiff and third plaintiff claims against Mr s party s Hendrick For the reasons that follow we affirm FACTUAL AND PROCEDURAL BACKGROUND On October 28 2008 at approximately 11 a plaintiff Vicky Elder was 00 m leaving the Hampton Inn on Constitution Ave in Baton Rouge after attending a seminar While walking on the walkway outside the entrance of the Hampton Inn she stepped on an uneven drop offinto the parking lot causing her to fall On July 24 2009 plaintiff filed a suit for damages for injuries sustained in the fall aileging that the drop from the walkway into the parking lot was not off detectible because the two levels were made of the same material and were the same color Plaintiff subsequently filed six supplemental and amending petitions each adding differenT defendants Pertinent to this appeal one of the named defendants was South Baton Rouge Hotel LLC d Hampton Inn and Suites a b referred to hereinafter as Hampton Inn On November 24 2009 Hampton Inn filed a third demand against party Roy Hendrick Architect and LA Pavers LLC The third demand alleged party that Roy Hendrick was the architect for the construction of the Hampton Inn who designed the walkway where plaintiff fell and LA Pavers LLC laid the brick pavement concrete pavers where plaintiff fell The third demand party contended that the dangerous condition was caused by the fault and hazardous negligence of Roy Hendrick and LA Pavers LLC in improper design improper or laying of the walkway or a combination of both On February 2 2010 plaintiff filed a third supplemental and amending petition naming Roy Hendrick and LA Pavers LLC as additional defendants 2 On May 13 2011 defendant defendant Roy Hendrick filed a party third motion for summary judgment Hendrick averred that the evidence shows 1 splans were changed during the construction phase of the hotel without Hendrick his knowledge or approval and plaintiff fall and subsequent injuries were a direct s resuit of Yhat change and 2 Hendrick did not have a duty either in law or in contract to conduct continuous inspections during the construction of the hotel Following a hearing the trial court granted Hendrick motion for summary s judgment and dismissed all of plainriff and third plaintiff claims against s party s Hendrick t Hampton Inn then filed the instant appeal averring the summary judgment rendered in favor of Hendrick should be reversed On appeal Hampton Inn contends 1 the trial court erred in granting summary judgment where genuine issues of fact remain 2 the trial court erred in granting summary judgment where Hendrick was not entitled to summary judgment as a matter of law and 3 the trial court erred in failing to grant third plaintiff motion to amend the pleadings party s to conform to the evidence LA Pavers LLC was also dismissed on summary judgment and the trial court issued a partial summary judgment as to Hampton Inn and HotelSouth Management sactual knowledge of the vice ox defect Those judgments are not the subject of the instant appeal z Plaintiff did not appeal the gxant of the summary judgment and dismissal of her claims against Hendrick 3 This appeal was also brought on behalf of HotelSouth Management LLC HotelSouth was named as an additional defendant in plaintiffs fourth and supplemental amended petition as the entity chazged with the duties of general maintenance and oversight of the hotel premises R 123 122 South Baton Rouge Hotel d Hampton Inn and HotelSouth Management are both a b owned and operated by Frank Benoit 3 DISCUSSION Application for Supervisorv Writs We first address the denial of the motion to amend the pleadings to conform to the evidence as our ruling on the application for supervisory writs filed by Hampton Inn and referred to the appeal panel could affect the scope of our review on appeal Hampton Inn initially sought review of the trial court denial of the s motion to amend the pleadings by filing a writ application with this Court On July 2 2012 this Court issued an interim order referring the writ to the same panel assigned to the yet lodged appeal be to Vicky Elder vs South Baton Rou e Hotel L d Ham Inn and Suites 2012 CW 0464 La App 1 Cir C b ton a 12 2 7 Hampton Inn argues that the pleadings should be expanded to include the issue of whether or not Hendrick had a duty to inspect the premises the hotel for vices or defects and to report his findings to a representative of the owner Hampton Inn concedes that the third demand against Hendrick alleges that party Hendrick was liable because of improper design or improper laying of the walkway However Hendrick smotion for summary judgment filed in response to the third demand raised the issue of whether he had a duty to inspect the party premises Furthermore in opposition to the motion for summary judgment Hampton Inn offered an affidavit from an architect expert which addresses s Hendrick duty to inspect Accordingly Hampton Inn argues the pleadings should be expanded to include the issue ofHendrick duty to inspect s Louisiana Code of Civil Procedure article 1154 governing amendment of pleadings provides When issues not raised by the pleadings are tried by express ar implied consent of the parties they shall be treated in all respects as if they had been raised by the pleading Such amendment of the pleadings as may be necessary to cause them to conform to the 4 evidence and to raise these issues may be made upon motion of any party at any time even after judgment but failure to so amend does not affect the result of the trial of these issues If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits The court may grant a continuance to enable the objecting party to meet such evidence The standard of review for the denial of a motion to amend the pleadings is an abuse of discretion Denton v Vidrine 06 La App lst Cir 12 0141 06 28 951 So 2d 274 285 writ denied 07 La 5 957 Sa 2d 152 On 0172 07 18 review we find no abuse of discretion by the trial court in denying the formal motion to amend the pleadings which on the recard before us was unnecessary and superfluous As the record demonstrates there was no objection to the evidence pertaining to Hendrick duty to inspect Rather both parties submitted evidence as s to this issue Generally under the provision of LSA art 1154 evidence not P C pertinent to any other issue raised in the pleadings that is admitted at trial without objection from the adverse party serves to enlarge the pleadings erald Fitz v Tucker 98 La 6 737 So 2d 706 715 Gulfstream Services Inc v 2313 99 29 Hot Ener Services Inc 04 La App lst Cir 3 907 So 2d 96 101 y 1223 OS 24 writ denied 1064 OS La 2005 904 So 2d 706 Accordingly a formal amendment ofthe pleadings was not necessary For the above reasons we deny Hampton Inn application for writs in 2012 s CW 0464 Appeal of Summarv Judganent We next address Hampton Inn appeal ofthe granting of Hendrick s smotion for summary judgment and the dismissal of Hampton Inn third s party plaintiff claims against Hendrick 5 Hampton Inn first contends that summary judgment was inappropriate because issues of fact remain as to what Hendrick agreed to do by way of inspection particularly inspection of the work by LA Pavers LLC in installing pavers We disagree Hendrick testified that he warked on projects for Mr Benoit the builder owner of Hampton Inn in the past and that he did not have a written contract regarding the building of this particular hotel Hendrick stated that his involvement with the hotel was merely to produce a set of drawings to meet the requirements of the fire marshal state city and franchisee Hendrick specifically stated that his agreement did not include his being responsible for safety inspections and stated that he did not supervise the work of LA Pavers LLC further explaining that if inspections were required he would ha charged e significantly more for his work on the project The day before his deposition Hendrick took pictures of the area where plaintiff fell Hendrick stated this was his first inspection of the area since LA Pavers LLC completed their wark and noted that there was an obvious tripping hazard in the area where plaintiff fell Importantly he noted that the pavers in this area extended past the point he had indicated in his drawings for the construction of the hotel Rod Trahan the principal representative of LA Pavers LLC testified that after completing the job he discussed the height differential with HotelSouth Management In September of 2009 Trahan submitted a quote to fix the area and a contract was signed However he then received a call saying the owners did not want to spend the money at this time Similarly Benoit the owner of the Hampton Inn acknowledged in his deposition that it was his decision as owner to continue the pavers beyond the point specified in Hendrick sdrawings and that he did not discuss this decision 6 with Hendrick Benoit stated that it was his understanding that Hendrick was to develop the plans for approval for the fire marshall city and the franchisee parish Additionally while he acknowledged that Hendrick was to approve all of the AIA withdrawals needed for Benoit to receive draws from the bank Benoit did not testify that Hendrick had or agreed to any duty to do a final inspection of the project In opposition to the motion for summary judgment Hampton Inn submitted the affidavit of Neal Johnson a forensic architect In pertinent part Johnson s affidavit states The Architect had a contractual and professional obligation to represent the owner in good faith and to require his consultants to do so as well In Roy Hendrick own deposition he stated that in the s presence of the owner he observed a potential tripping hazard involving the slope of the concrete Other than a comment to Randy Lissard Roy Hendrick did nothing At a minimum a letter to the owner should have been sent documenting this observation This failed to meet the standard of care and degree of skiil ardinarily exercised architects by currently practicing under similar circumstances On page 31 lines 5 of his deposition Roy Hendrick referred to 21 photographs of the area where Ms Elder claims she fell as depicting a that tripping hazard should never have been built As architect for the project Roy Hendrick should have noted any potential tripping hazard in his inspection of the premises and forcefully called that to the attention of the owner preferably Frank Benoit with whom he had an ongoing relationship and whom he knew to be the man in charge A written notification to Mr Benoit should have been made This failed to meet the standard of care and degree of skill ordinarily exercised by architects currently practicing under similar circumstances Moreover on de novo review we are unable to find that any duty owed by Hendrick to perform a final safety inspection was shown to exist Although s Johnson affidavit mentioned that Hendrick did not perform inspections there is no factual support in the record demonstrating he ever agreed to do such nor is there any showing that there was a duty to perform inspections far defects in the final construction Specifically no evidence was introduced to rebut Hendrick s 7 testimony that his oral agreement with the owner did not require safety or compliance inspections Expert opinion admitted on summary judgment is subject to the Daubert standards and as such it must be both reliable and relevant Independent Fire Ins Co v Sunbeam 99 99 La 2 755 So 2d 226 The factual 2181 2257 00 29 basis for an expert opinion determines the reliability of the testimony Thus an s unsupported opinion can offer no assistance to the fact finder and should not be admitted as expert testimony Roberston v Dou Bldg Materials Inc v 1552 2010 La App 1 Cir 10 77 So 3d 339 354 citin Miramon v 11 4 Bradlev 96 La App 1 Cir 9 701 So 2d 475 478 1872 97 23 Moreover in reviewing Johnson affidavit we s find that he either misinterpreted or misunderstood the context of Hendrick statement in his s deposition that he observed a hazard should never have been buiit tripping that Hendrick made this statement in reference to what he observed at the hotel the day before his deposition Accordingly Hendrick made this observation after s plaintiff fa1L No evidence was introduced to show that Hendrick was aware of this tripping hazard prior to plaintiff fall and failed to notify Benoit s Furthermore Johnson affidavit does not state that Hendrick had a duty to do a s final inspection after LA Pavers LLC completed their work Thus on the record before us we find no support for Hampton Inn s argument that genuine issues of fact remain as to any alleged failure by Hendrick to adequately conduct or respond to inspections Furthermare we find no support for Hampton Inn assertion that Hendrick s was not entitled to summary judgment as a matter of law based on an alleged breach of a duty owed herein The architect duty is not to provide perfect plans s but to exercise the degree of professional care and skill customarily employed by 8 other architects in the same general area M J Womack Inc v House of Representatives of State 509 Sa2d 62 64 La App lst Cir 1987 Hampton Inn argues that Hendrick was not entitled to summary judgment as a matter of law because Johnson affidavit establishes or creates issues of fact as to whether s Hendrick exercised the degree of care and skill employed by other architects On the record before us we likewise find no merit to these arguments As stated above Johnsods affidavit does state that Hendrick failed to meet the standard of care However in explaining why Hendrick failed to meet the standard of care it appears that Johnson was confused or misinterpreted s Hendrick deposition testimony Again Johnson affidavit criticized Hendrick s for doing nothing when he observed a tripping hazard but a full review of s Hendrick deposition shows that the tripping hazard was observed the day before the deposition after plaintiffls fall Accordingly there is no factual support presented for Johnson statement that Hendrick failed to meet the standard of care s exercised by architects currently practicing under similar circumstances by not notifying the owner of this tripping hazard prior to plaintiff fall s s Johnson affidavit further states It appears that Roy Hendrick signed the Certificate of Completion as required for occupancy by the State of Louisiana Fire Marshal and the City of Baton Rouge Permit office before final inspections with the work incomplete This action falls below the standard of care and degree of skill ordinarily exercised by architects currently practicing under similar circumstances We also find an absence of factual support far this statement The certificate of completion is not included in the recard and there is no testimony in the record that Hendrick signed the certificate of completion 9 CONCLUSION For the above reasons Hampton Inn application for supervisory writs of s review in 2012 CW 0464 is hereby denied Furthermore the September 21 2011 judgment of the trial court granting Roy Hendrick motion for summary s judgment and dismissing third plaintiff claims against Hendrick is hereby party s affirmed Costs of this appeal are assessed to South Baton Rouge Hotel d a b Hampton Inn and Suites and HotelSouth Management WRTT DENIED AFFIRMED 10 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1164 VICKY ELDER VERSUS HILTON HOTELS CORPORATION j 5 McCLENDON 7 concurs and assigns reasons I disagree with the majority conclusion that Neal ohnson affidavit s s failed to establish a duty on the part of Roy Hendrick to conduct inspections during the construction of the hotel Nevertheless I concur with the result reached by the majority Louisiana courts have adopted a duty analysis in determining risk whether to impose liability under the general negligence principles of Louisiana Civil Code article 2315 For liability to attach a plaintiff must prove five separate elements 1 the defendant had a duty to conform his conduct to a specific standard of care 2 the defendant failed to conform his conduct to the appropriate standard of care 3 the defendant substandard conduct was a s fact in cause of plaintiff injuries 4 the defendant substandard conduct was s s a legal cause of the plaintiff injuries and 5 actual damages s Bridgefield Cas Ins Co v 7 Inc 09 09 La 1 Cir 10 29 5 E 0725 0726 App 09 23 3d So 570 573 A negative answer to any of the inquiries of the duty risk analysis results in a determination of no liabiliry Bellanger v Webre 10 0720 App La 1 Cir 5 65 So 3d 201 207 writ denied 11 La 9 il 6 1171 11 16 69 So 1149 3d In this matter even if Mr Hendrick had inspected the property his actions were not the cause of Ms Elder injuries Frank Benoit admitted fact in s in his deposition that it was his decision as owner to continue the paving beyond the point depicted in the original design submitted by Mr Hendrick and that he did not discuss his decision with Mr Hendrick Furthermore Rod Trahan the principal of LA Pavers L testified by deposition that in July of 2008 C after the paving in question was completed and before Ms Elder fall he met s with Randy Lissard the representative of the owner to discuss the height differential and ways to fix the transition Mr Trahan testified that he gave Mr Lissard his recommendations on how to remedy the problems at that time In his affidavit Mr Trahan also stated that the owner was made aware of any concerns raised by the height differential long before Ms Elder fall Mr Trahan s further attested 11 He personally went to the Hampton Inn Suites several months prior to the accident on October 28 2008 to provide a proposal to tear out the pavers and address the height differential plaintiff alleges as a defect in this case 12 He on behalf of LA Pavers proposed that LA Pavers be allowed to address this height differential during July of 2008 13 This work proposal by LA Pavers during July of 2008 was rejected 14 He was advised during July of 2008 by Randy Lissard that the owner did not authorize LA Pavers to do this work Clearly the depositions and affidavits submitted show that the owner was aware of the problem prior to Ms Elder fall and chose not to correct it Thus s the third plaintiffs South Baton Rouge Hotel and Hotel South Management party failed to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial regarding the cause of Ms Elder s injury Therefore I respectfully concur 2
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