Opinion
2022 CA 1118
08-01-2023
SANDRA CAMPBELL v. HOSPITAL SERVICE DISTRICT NO. 3 FOR THE PARISH OF LAFOURCHE, D/B/A THIBODAUX REGIONAL MEDICAL CENTER AND THIBODAUX REGIONAL MEDICAL CENTER
Lawrence Blake Jones David C. Whitmore New Orleans, Louisiana Attorneys for Plaintiff -Appellant, Sandra Campbell Carl E. Hellmers, III Stephanie D. O' Brien New Orleans, Louisiana Attorneys for Defendant - Appellee, Hospital Service District No. 3 for the Parish of Lafourche.. State of Louisiana d/ b/ a Thibodaux Regional Medical Center
ON APPEAL FROM THE 17TH JUDICIAL DISTRICT COURT, DIVISION B LaFOURCHE PARISH, LOUISIANA DOCKET NUMBER 135617 HONORABLE STEVEN M. MILLER, JUDGE PRESIDING
Lawrence Blake Jones David C. Whitmore New Orleans, Louisiana Attorneys for Plaintiff -Appellant, Sandra Campbell
Carl E. Hellmers, III Stephanie D. O' Brien New Orleans, Louisiana Attorneys for Defendant - Appellee, Hospital Service District No. 3 for the Parish of Lafourche.. State of Louisiana d/ b/ a Thibodaux Regional Medical Center
BEFORE: McCLENDON, HOLDRIDGE, and GREENE, JJ.
GREENE, J.
A pedestrian who fell in a driveway near a hospital entrance appeals the summary judgment dismissal of her personal injury claims against a hospital service district. After review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of July 12, 2017, Sandra Campbell was walking with the aid of a wheeled walker in a driveway near the entrance of the Thibodaux Regional Medical Center Medical Mall building in Thibodaux, Louisiana. She was on her way from her doctor's office in the Wellness Center to the hospital lab in the Medical Mall to have bloodwork done. Ms. Campbell alleges that, when she paused to rest, her walker tipped over due to cracked or uneven pavement near the main entrance, which caused her to fall and sustain injuries. On May 18, 2018, Ms. Campbell filed this personal injury suit against Hospital Service District No. 3 for the Parish of Lafourche d/b/a Thibodaux Regional Medical Center (TRMC). Over the next three years, the case proceeded with discovery and responsive pleadings. In due course, TRMC filed a motion for summary judgment, seeking dismissal of Ms. Campbell's suit. Ms. Campbell opposed the motion. After a hearing, the trial court signed a judgment, on May 19,2022, granting TRMC's motion and dismissing Ms. Campbell's suit with prejudice.
A hospital service district is a political subdivision of the state. La. R.S. 46:1072(2)(a). Parish police juries have statutory authority to create one or more hospital service districts within their respective parishes, or with agreement among police juries, to combine two or more parishes into a single hospital district. La. R.S. 46:1051 et seq. Among the objectives of this legislation is for these districts to own and operate hospitals. See Bernard v. Sandoz, 260 La. 239, 255 So.2d 754, 756 (1971).
Ms. Campbell appeals the adverse judgment, asserting three assignments of error. She first contends the trial court improperly granted summary judgment on the issue of unreasonable risk of harm when TRMC did not raise that issue in its motion. She then argues that, even if the trial court did properly base its judgment on the unreasonable risk of harm issue, the court still erred in granting summary judgment, because there are genuine issues of material fact as to whether TRMC's cracked driveway pavement created an unreasonable risk of harm. Lastly, she argues there are genuine issues of material fact regarding TRMC's actual or constructive notice of the cracked driveway pavement.
SUMMARY JUDGMENT
An appellate court reviews the grant or denial of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Jefferson v. Nichols State University, 19-1137 (La.App. 1 Cir. 5/11/20), 311 So.3d 1083, 1085, writ denied, 20-00779 (La. 11/4/20), 303 So.3d 623. A court shall grant a motion for summary judgment if the pleadings, memorandum, and admissible supporting documents show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(A)(3) and (4); Jefferson, 311 So.3d at 1085. The summary judgment movant maintains the burden of proof. La. C.C.P. art. 966(D)(1). Nevertheless, if the movant will not bear the burden of proof at trial on the issue before the court on the motion, his burden is satisfied by pointing out an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and, if appropriate, the court shall render summary judgment against him. La. C.C.P. arts. 966(D)(1) and 967(B).
ISSUES SET FORTH IN TRMC'S MOTION FOR SUMMARY JUDGMENT
Ms. Campbell first argues the trial court erred in granting summary judgment based on its finding that she presented no evidence of an unreasonably dangerous defect, when TRMC's motion for summary judgment did not raise that issue. She points out that, under La. C.C.P. art. 966(F), a trial court may grant summary judgment only as to those issues set forth in the motion under consideration by the court at that time.
As discussed below, one of the statutory requirements required to impose liability on TRMC herein is proof that a defect created an unreasonable risk of harm. Courts use a traditional duty/risk analysis to determine whether a defect creates an unreasonable risk of harm. Farrell v. Circle K Stores, Inc., 22-00849 (La. 3/17/23), 359 So.3d 467, 473. The duty/risk analysis includes a breach of duty element which, in turn, includes consideration of whether a condition is open and obvious. Farrell, 359 So.3d at 478; Bertrand v. Jefferson Arms Apartments, LLC, 22-1195 (La.App. 1 Cir. 4/14/23),So.3d __, __, 2023 WL 2947964, *4. Thus, under this applicable legal analysis, TRMC's motion for summary judgment, arguing the open and obvious issue, does raise the issue of whether the cracked driveway pavement created an unreasonable risk of harm. We find the trial court properly considered the unreasonable risk of harm issue in granting summary judgment, and Ms. Campbell's argument to the contrary is without merit.
PUBLIC ENTITY'S LIABILITY FOR DAMAGES CAUSED BY A DEFECTIVE THING
Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Jefferson, 311 So.3d at 1085. The existence of a defect alone is insufficient to establish TRMC's liability in this case. See Davis v. City of Baton Rouge, 17-1473 (La.App. 1 Cir. 4/9/18), 2018 WL 1704095, *3 (unpublished). Rather, as a public entity, TRMC's liability is limited by the provisions of La. R.S. 9:2800. See Carreras v. Jefferson Parish Hospital Service District No. 2, 11-1163 (La.App. 5 Cir. 5/22/12), 96 So.3d 566, 569.
Under La. R.S. 9:2800, to prove a public entity is liable for damages caused by a defective thing, the plaintiff must establish: (1) the public entity had custody or ownership of the defective thing; (2) the defect created an unreasonable risk of harm; (3) the public entity had actual or constructive notice of the defect; (4) the public entity failed to take corrective action within a reasonable time; and (5) causation. See La. C.C. arts. 2317 and 2317.1; La. R.S. 9:2800; Chambers v. Village of Moreauville, 11-898 (La. 1/24/12), 85 So.3d 593, 597. Failure to meet any one of these statutory requirements will defeat a claim against the public entity. Jefferson, 311 So.3d at 1085-86. Here, Ms. Campbell claims there are disputed factual issues regarding the second and third statutory requirements, i.e., the existence of an unreasonable risk of harm and constructive notice.
Under the duty/risk analysis used to determine whether a defect creates an unreasonable risk of harm, the plaintiff must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiffs injuries (the scope of duty element); and, (5) proof of actual damages (the damages element). If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable. Farrell, 359 So.3d at 473; Bertrand, 2023 WL 2947964 at *4.
For TRMC to prevail on summary judgment, it was required to show an absence of factual support for any of the elements of Ms. Campbell's cause of action. See La. C.C.P. art. 966(D)(1); Farrell, 359 So.3d at 473. Here, TRMC's motion focuses on the breach of duty element of the duty/risk analysis. Louisiana courts use a risk/utility balancing test to assess the breach of duty element, with consideration of four factors: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the condition's obvious and apparent nature; (3) the cost of preventing the harm; and, (4) the nature of the plaintiff's activity in terms of social utility or whether the activity was dangerous by nature. Farrell, 359 So.3d at 474. If a court's application of the risk/utility balancing test results in a determination that the complained-of condition is not unreasonably dangerous, a defendant is not liable because he has breached no duty. Farrell, 359 So.3d at 478; Bertrand, 2023 WL 2947964 at *5. A court may grant summary judgment upon a finding that reasonable factfinder could only agree that a condition was not unreasonably dangerous. Farrell, 359 So.3d at 478. We now review the admissible summary judgment evidence de novo in this case to determine whether there are genuine issues of material fact as to that issue.
Summary Judgment Evidence
In support of its motion for summary judgment, TRMC filed excerpts from Ms. Campbell's deposition; excerpts from Leo Naquin's deposition; the incident report Mr. Naquin completed on the day of the accident; and the affidavit of Mr. Jose Ortiz. In support of her opposition to the motion, Ms. Campbell filed excerpts from her deposition; excerpts from Mr. Naquin's deposition; a "Declaration" by James D. Ritchey, with attached copies of photographs of the TRMC driveway; an affidavit by Jason Postier, with attached copies of photographs of the TRMC driveway; and Ms. Campbell's affidavit, in which she attested that the photographs filed with Mr. Ritchey's Declaration and with Mr. Postier's affidavit show the condition of the area where she fell as it existed on the date of the accident.
An incident report is not one of specifically-listed documents that may be filed in support of or in opposition to a motion for summary judgment. See La. C.C.P. art. 966(A)(4). However, Ms. Campbell did not object to the incident report's admissibility. Thus, under La. C.C.P. art. 966(D)(2), this court "shall consider any documents to which no objection is made" to determine, de novo, if we should give any evidentiary value to the document. Velocity Investments, LLC v. Pasqua, 22-0626 (La.App. 1 Cir. 1/10/23), 361 So.3d 23, 27, n.6. The incident report is an unsworn and unverified document and not attached to an affidavit or otherwise authenticated. Id. Thus, we afford it no evidentiary value upon review of this summary judgment. Id.
Although a "declaration" may be used in federal court summary judgment practice, see FRCP Rule 56(c)(4), a declaration is not one of the specifically-listed documents that may be filed in support of or in opposition to a motion for summary judgment in a Louisiana state court. See La. C.C.P. art. 966(A)(4). TRMC did not object to the admissibility of Mr. Ritchey's Declaration. However, for the same reasons stated in footnote 2, we afford no evidentiary value to the Declaration nor to the photographs attached to it.
The accident occurred in July 2017. Mr. Postier took the photographs attached to his affidavit in October 2021, over four years after the accident. In a timely-filed reply memorandum, TRMC objected to the admissibility of the photographs, arguing that photographs taken in 2021 were irrelevant to show the condition of the TRMC driveway in 2017. Based on Mrs. Campbell's attestation that the 2021 photographs did show the 2017 condition of the TRMC driveway, the trial court denied TRMC's objection.
The admissible black and white copied photographs entered into evidence show that the concrete-paved TRMC driveway is intersected at regular intervals by expansion joints. The photographs also show a square drain in the driveway where multiple expansion joints meet at right angles. Near two of the right angles close to the drain, the driveway contains areas adjacent to the expansion joints where pavement is missing and irregular-shaped indentations exist. The copied photographs do not clearly show the depth or width of the indentations. In her deposition, Ms. Campbell estimated that, as best she could remember, the areas of "chipped up" concrete were "medium" in size, measuring approximately 2-3 inches deep and 5-6 inches wide. According to Ms. Campbell, the driveway was dry and the only reason she could see how she fell was that the tire on her walker dropped down into a crack, causing her and the walker to flip over. She stated that she was lying on top of the drain when passersby stopped to assist her and then escorted her into the TRMC emergency room. Ms. Campbell admitted that she could see where she was going as she pushed her walker across the driveway but did not see any "hole" before she fell. She also admitted that she was "trying to hurry up [so] the transportation people could bring [her] home," that nothing obstructed her view of the hole, and had she been paying attention, she would have been able to see the hole.
She also admitted that she walked across the driveway, rather than using the available sidewalk, because she did not want to pick up her walker to put it on the sidewalk.
Leo Naquin, the TRMC security guard on duty the day of the accident, talked to Ms. Campbell shortly afterwards and completed an incident report the same day. According to Mr. Naquin's deposition, Ms. Campbell told him that she was at the TRMC ambulance entrance when "she sat [on her walker] and started to move and hit the hole[.]" Mr. Naquin testified that his duties included making rounds through the TRMC buildings and parking lots to look for hazards, such as broken glass, vehicle accidents, and cement holes that would cause a person a severe injury or break. He admitted a reportable hazard would include broken concrete that could be a "tripping hazard," but stated that, when he walked out to the general area where Ms. Campbell said she fell, he found nothing that he considered a problem or a tripping hazard. Notably, counsel did not show any driveway photographs to Mr. Naquin or question him about any photographs.
In her deposition, Ms. Campbell denied sitting down on the seat of her walker and pushing it backward and also denied that she told Mr. Naquin such, claiming that he lied. Rather, Ms. Campbell asserted that Mr. Naquin told her that "he told them people that hole should have been fixed." These credibility and comparative fault issues are not at issue in this appeal.
Mr. Ritchey took the photographs attached to his Declaration on June 3, 2021. Mr. Naquin's deposition was taken on August 11, 2021. Mr. Postier took the photographs attached to his affidavit on October 5, 2021.
Jose Ortiz was the TRMC Director of Facility Services when the accident occurred in July 2017 and for several years before. In his affidavit, Mr. Ortiz attested that TRMC security personnel made daily inspections of the area at issue. He also stated that he had received no complaints regarding defects in the subject TRMC driveway and no reports of incidents, falls, or injuries there at any time before July 2017.
Duty/Risk Analysis
We now turn to the duty/risk analysis. According to the Louisiana Supreme Court, the utility of a paved parking lot containing expansion joints is clearly apparent, as an unpaved parking lot would present far more hazards, such as potholes, wheel ruts, erosion damage, and infinite variations in elevation. Reed v. Wal-Mart Stores, Inc., 971174 (La. 3/4/98), 708 So.2d 362, 366. As to the specific utility of expansion joints, the Reed court noted that the joints are necessary for the safety and maintenance of larger paved surfaces, because they allow for the concrete to expand and contract as it heats and cools due to weather. Id. Absent the expansion joints, the concrete blocks would contract and later crack and split in the cold. Id. Subjected to heat, the concrete blocks would press against each other, cracking, shifting and buckling, which would produce hazardous deviations in elevation. Id. Further, the cost of maintaining such an area would be prohibitive as it would necessitate frequent replacement of the fragmented concrete blocks. Id. Although decided over 25 years ago, the Reed court's reasoning on the utility of paved parking lots remains valid. See Prince K Rouse's Enterprises, L.L.C., 20-150 (La.App. 5 Cir. 12/2/20), 305 So.3d 1078, 1084; Cole v. Nicholls Plaza, 18-1594 (La.App. 1 Cir. 5/31/19), 2019 WL 2315337, *3 (unpublished); Taylor v. Chipotle Mexican Grill, Inc., 18-238 (La.App. 5 Cir. 12/27/18), 263 So.3d 910, 917, writ denied, 19-0154 (La. 4/8/19), 267 So.3d 606. Therefore, we find the established utility of paved parking lots containing expansion joints weighs in favor of finding that the complained-of condition is not unreasonably dangerous.
We next consider the likelihood and magnitude of harm factor of the duty/risk analysis. In assessing this factor, we consider the obviousness, openness, and apparentness of the complained-of condition. Farrell, 359 So.3d at 474. The more obvious the risk created by a condition, the less likely it is to cause injury because it will be avoided. Id. If a reasonable person would consider a hazard open and obvious, and would hence avoid the hazard, such weighs in favor of finding the complained-of condition not unreasonably dangerous. Id. at 478. Further, the lack of reported complaints regarding a complained-of condition indicates a low risk of harm. Chambers, 85 So.3d at 602; Davis, 2018 WL 1704095 at *4; also see Williams v. Leonard Chabert Medical Center, 98-1029 (La.App. 1 Cir. 9/26/99), 744 So.2d 206, 210, writ denied, 00-0011 (La. 2/18/00), 754 So.2d 974.
In this case, Ms. Campbell's accident occurred on a clear morning when the driveway pavement was dry. The admissible photographs of the TRMC driveway show that the drain, the concrete/expansion joint junctures, and the indentations created by the chipped up concrete were on a flat surface and plainly visible. Ms. Campbell estimated that the areas of chipped up concrete measured approximately 2-3 inches deep and 5-6 inches wide, but she did not specifically identify which of the indentations caused her fall. Notwithstanding, the indentations in the concrete would have been plainly visible to an approaching pedestrian. Ms. Campbell's deposition testimony is also consistent with what the photographs show; that is, Ms. Campbell admitted that she could see where she was going as she crossed the driveway, that nothing obscured her view of the hole that allegedly caused her fall, and that she would have been able to see the hole had she been paying attention. Accord Stevens v. City of Shreveport, 49,437 (La.App. 2 Cir. 11/19/14), 152 So.3d 1071, 1078, writ denied, 15-0197 (La. 4/17/15), 168 So.3d 399 (finding a sidewalk with a missing concrete section was open and obvious based on plaintiff's admission that the accident occurred before noon on a clear, sunny day, and she had no problem seeing); Williams, 744 So.2d at 208, 210-11 (finding a one and one-half inch difference between the height of the concrete on the sides of expansion joint in a hospital parking lot was clearly visible and not unreasonably dangerous to a 76-year old woman entering the hospital for a medical appointment).
An accident alone does not support the imposition of liability, particularly considering the normal hazards pedestrians face while traversing sidewalks, streets, and parking lots in this state. Bertrand, 2023 WL 2947964 at *6; Williams, 744 So.2d at 211. It is common for the surfaces of streets, sidewalks, and parking lots to be irregular. Reed 708 So.2d at 363. It is not the duty of the party having custody of the same, including a hospital, to eliminate all variations in elevations existing along the countless cracks, seams, joints, and curbs. Id. at 363; Williams, 744 So.2d at 209. The surfaces are not required to be smooth and lacking in deviations, and indeed, such a requirement would be impossible to meet. Reed, 708 So.2d at 363; Williams, 744 So.2d at 209. Further, a pedestrian has a duty to see what should be seen and is bound to observe his course to see if his pathway is clear. Bertrand, 2023 WL 2947964 at *6. Thus, considering the photographs, Ms. Campbell's own testimony, the lack of any evidence that Ms. Campbell's vision was obscured, and the lack of prior complaints or accidents, we find that a reasonable person would have found the indentations created by the chipped up concrete in the TRMC driveway open and obvious and would have avoided the area when traversing the driveway. This weighs in favor of finding the complained-of condition not unreasonably dangerous. See Farrell, 359 So.3d at 474; Williams, 744 So.2d at 211.
The third factor of the duty/risk analysis considers the cost associated with preventing the harm. We are unable to consider this factor in applying the duty/risk analysis, because the record contains no evidence pertinent to this inquiry. We note, however, that this lack of evidence does not preclude affirmation of the summary judgment. See Farrell, 359 So.3d at 479.
Lastly, the fourth factor of the duty/risk analysis involves a consideration of the nature of plaintiff's activity in terms of social utility or whether his activity was dangerous in nature. Here, Ms. Campbell's fall occurred as she was walking with her walker from her doctor's office to the TRMC lab to have bloodwork done. There is undoubtedly social value in having a patient visit a hospital lab for blood work ordered by her doctor. This activity is generally not dangerous in nature; notably, Ms. Campbell's choice to cross the driveway area, rather than using the available sidewalk, made her path more dangerous. Overall, this factor weighs in favor of finding the subject TRMC driveway pavement was not unreasonably dangerous.
After applying the duty/risk balancing test, we find that the indentations in the concrete adjacent to the expansion joints in the TRMC driveway do not constitute an unreasonable risk of harm, and hence, TRMC has breached no duty to Ms. Campbell. See Farrell, 359 So.3d at 478; Bertrand, 2023 WL 2947964 at *5. The continuing social utility of paved parking lots, including driveways, and the specific utility of expansion joints in paved surfaces, is clearly apparent. See Reed, 708 So.2d at 366; Prince, 305 So.3d at 1084; Cole, 2019 WL 2315337 at *3; Taylor, 263 So.3d at 917. The social utility of patients visiting hospital labs for bloodwork is also apparent. However, based on the summary judgment evidence in this case, we conclude there is no genuine issue of material fact that a reasonable person traversing the TRMC driveway at a reasonable pace on a clear day, paying proper attention, and encountering no obstructions to her view, would have seen the indentations as open and obvious conditions and would have navigated around them. Summary judgment in this case is warranted because no reasonable juror could have found TRMC breached a duty; reasonable minds could only agree that the TRMC driveway was not unreasonably dangerous. Farrell, 359 So.3d at 478.
Because we conclude Ms. Campbell has failed to produce factual support sufficient to establish that the cracked driveway pavement was unreasonably dangerous, we pretermit discussion of the constructive notice issue. Accord Yates v. Our Lady of the Angels Hospital, Inc., 19-0661 (La.App. 1 Cir. 2/20/20), 2020 WL 862167 *3, n.2 (unpublished); Jefferson, 311 So.3d at 1086.
CONCLUSION
We affirm the trial court's May 19, 2022 judgment granting summary judgment to Hospital Service District No. 3 for the Parish of Lafourche d/b/a Thibodaux Regional Medical Center and dismissing Sandra Campbell's suit against Hospital Service District No. 3 for the Parish of Lafourche d/b/a Thibodaux Regional Medical Center with prejudice. We assess costs of the appeal to Sandra Campbell.
AFFIRMED.
HOLDRIDGE, J. CONCURRING
I respectfully concur in the result. At the outset, I question whether the mover, Hospital Service District No. 3 of the Parish of Lafourche d/b/a Thibodaux Regional Medical Center (TRMC), raised the issue in its motion for summary judgment that the condition of the alleged defect in the driveway was not unreasonably dangerous. See La. C.C.P. art. 966 (F)(a summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time). Furthermore, even if the defendant properly raised that issue in its motion for summary judgment, there are contested issues of material facts that preclude the granting of a motion for summary judgment on the unreasonably dangerous element of Ms. Campbell's cause of action. See Farrell v. Circle K Stores, Inc., 202200849, (La. 3/17/23), 359 So.3d467.
However, TRMC did raise the issue of the plaintiffs fault being the cause of the accident in its motion. The cause-in-fact element of the duty/risk analysis is usually a "but for" inquiry that tests whether the accident would have happened but for the defendant's substandard conduct. Malta v. Herbert S. Hiller Corporation, 2021-00209 (La. 12/10/21), 333 So.3d 384, 398. While the cause-in-fact question is a factual one, in this case, the material facts are not in dispute. As the facts recited by the majority reveal, Ms. Campbell, on a clear morning when the driveway pavement was dry, decided to go from her doctor's office in the Wellness Center to the hospital lab by going across the driveway instead of using the sidewalk that was provided. She was using a walker. She admitted that she was trying to "hurry up." While crossing the parking lot, her walker flipped over causing her to fall. She stated that she fell because her walker hit some type of hole or indentation and she would have been able to see the hole if she "would have been paying attention." It is clear that this accident would not have happened if Ms. Campbell used the sidewalk that was provided, had not been in a hurry, and watched where she was going. On these facts, no reasonable juror or trier of fact could find that Ms. Campbell's fall would not have occurred "but for" the defendant's conduct. I find that TRMC properly produced evidence that there were no genuine issues of fact that Ms. Campbell's conduct was the sole cause-in-fact of her damages and Ms. Campbell failed to produce any factual support to create the existence of any disputed facts. Therefore, summary judgment was appropriate.