Opinion
NO. 18-CA-239
12-12-2018
ANGELA MENZER KILIAN RASBERRY v. CASEY KILIAN AND ABC INSURANCE COMPANY
COUNSEL FOR PLAINTIFF/APPELLANT, ANGELA MENZER KILIAN RASBERRY Perry R. Staub, Jr. Matthew S. Foster COUNSEL FOR DEFENDANT/APPELLEE, CASEY KILIAN Christopher P. Lawler COUNSEL FOR DEFENDANT/APPELLEE, ALLSTATE INSURANCE COMPANY C. Shannon Hardy John W. Penny
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 741-914, DIVISION "H"
HONORABLE GLENN B. ANSARDI, JUDGE PRESIDING Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst AFFIRMED
JGG
RAC
SJW COUNSEL FOR PLAINTIFF/APPELLANT,
ANGELA MENZER KILIAN RASBERRY
Perry R. Staub, Jr.
Matthew S. Foster COUNSEL FOR DEFENDANT/APPELLEE,
CASEY KILIAN
Christopher P. Lawler COUNSEL FOR DEFENDANT/APPELLEE,
ALLSTATE INSURANCE COMPANY
C. Shannon Hardy
John W. Penny GRAVOIS, J.
Plaintiff, Angela Menzer Kilian Rasberry, appeals a summary judgment granted in favor of defendant, Casey Kilian ("Casey"), and his homeowner's insurer, Allstate Insurance Company, dismissing her suit with prejudice. Plaintiff filed suit against Casey, her former father-in-law, following the tragic death of her 18-year-old son, Michael Kilian, Jr. ("Michael"), after he was found unresponsive in Casey's swimming pool on September 4, 2013. Plaintiff alleged that Casey was negligent, breaching various duties, including a duty to supervise Michael while he swam because he knew that Michael suffered from a seizure disorder, and also that the pool was defectively constructed and maintained. The trial court found that under the particular facts of this case, Casey had no duty to supervise Michael, a competent adult, when he swam, and that plaintiff failed to put on evidence regarding negligence in the pool's construction, maintenance, or repair. Accordingly, the trial court granted summary judgment in favor of defendants, dismissing plaintiff's suit with prejudice. This timely appeal followed.
FACTS AND PROCEDURAL HISTORY
In August of 2013, Michael was 18 years old and resided in Tennessee with his mother, plaintiff herein. On August 30, 2013, Michael traveled to Louisiana to visit his father, Michael Kilian, Sr. ("Michael, Sr."), and his grandfather Casey, defendant herein. According to his mother's affidavit, submitted in support of her opposition to defendants' motion for summary judgment, Michael had suffered from a seizure disorder from around the time he was five years old. The record indicates that Michael took daily medication to control the seizures. Plaintiff said that Michael was conscientious about taking his medication, and the record indicates that Michael had not suffered a seizure for several months prior to his death.
In Casey's deposition, he states that Michael told him that his mother had kicked him out of the house and that he had nowhere to go, so Casey sent him a bus ticket to New Orleans. However, plaintiff states in her affidavit that Michael left home without her knowledge.
Michael's father, however, testified in deposition that Michael's seizures started in 2010 after he had smoked synthetic marijuana, and that he had not known Michael to suffer from seizures prior to that time. In her deposition, plaintiff said that Michael had experienced two seizures when he was a child, but they greatly increased in frequency around 2010 when he was sixteen, requiring medication to control them.
Casey and Michael, Sr. picked up Michael at the bus station in New Orleans on the morning of August 30, 2013. Because Michael said he needed to see a doctor, Casey and Michael, Sr. took Michael to see Casey's primary care doctor later that same day, in order to establish a doctor/patient relationship. Casey stated in his deposition that he was not present in the exam room with Michael and the doctor, and thus did not hear what they discussed relative to Michael's health or medication. Casey testified in his deposition that he was aware Michael had had seizures in the past, because plaintiff had told him so, but he did not know the specifics about the condition and had never seen Michael have a seizure. At his deposition, Casey did not remember any specific medication that Michael was prescribed for the seizures or if he was taking medication at the time of his death, though the police report reflects that he told paramedics that Michael had taken his medication for seizures that day.
According to the deposition testimony, Michael intended to remain in Louisiana and needed to find a primary care doctor. He also intended to apply for Louisiana Medicaid, according to Michael, Sr.
Casey testified in his deposition that he owned his home in Metairie with the pool since 1988. After Hurricane Katrina, the pool was replastered and the pumps repaired. The pool had underwater lighting and the pool area was illuminated with outdoor lights. Michael had used the pool during his prior visits to the home. Casey testified that Michael had used the pool already several times during this particular visit without incident, and that from his observation, Michael knew how to swim. Casey testified in deposition that he maintained the pool in good repair. Plaintiff did not introduce any evidence that the pool suffered any defects at the times pertinent hereto.
On the night of September 4, 2013, the record reflects that Casey, his wife, Michael, and Michael, Sr. and his wife all went out to dinner to celebrate Casey's birthday. Both Casey and Michael, Sr. testified in depositions that Michael did not consume alcoholic beverages at dinner, nor did they see him consume any that day. Upon returning to Casey's house that evening after dinner, Michael advised the others that he was going to go swimming. His father, who enjoyed swimming with him, said that he would be joining him after working on his résumé. Casey's wife also told Michael that she would come outside with him shortly. Casey testified in deposition that all of the pool lighting was on at this time.
The receipt from dinner was admitted into evidence and showed that no alcohol was purchased at dinner.
At one point, Casey's wife looked through the living room window to the backyard and saw Michael sitting on a ledge at the deep end of the pool, and he waived to her. When she went outside approximately 15 minutes later, she saw Michael at the bottom of the deep end of the pool. After she screamed for help, Michael, Sr. and Casey ran outside and pulled Michael from the pool. They called 9-1-1. While they waited for paramedics to arrive, Casey and Michael, Sr. performed CPR on Michael. Casey testified that a lot of food, but no water, kept coming out of Michael's mouth as they performed CPR. Michael died several days later at the hospital.
On appeal, plaintiff argues that the trial court erred in holding, categorically, that as a matter of law no duty can exist for a host to supervise or monitor a competent adult as he swims in a residential pool. She argues that all hosts owe a duty of reasonable care commensurate with the particular circumstances involved. She argues that Casey's knowledge that Michael suffered from a seizure disorder created the legal duty for Casey to supervise Michael when he swam in the pool, and that Casey's breach of this duty is the proximate cause of Michael's death.
ANALYSIS
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).
Appellate courts review summary judgments de novo using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. A de novo review or an appeal de novo is an appeal in which the appellate court uses the trial court's record, but reviews the evidence and law without deference to the trial court's rulings. Wooley v. Lucksinger, 06-1140 (La. App. 1 Cir. 12/30/08), 14 So.3d 311, 352; Sarasino v. State Through Department of Public Safety and Corrections, 16-408 (La. App. 5 Cir. 3/15/17), 215 So.3d 923, 927. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Muller v. Carrier Corp., 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883, 885.
To determine whether liability exists under a negligence theory, the courts apply a duty-risk analysis. Under this analysis, the plaintiff must prove: 1) the conduct in question was the cause-in-fact of the resulting harm; 2) the defendant owed a duty of care to the plaintiff; 3) the requisite duty was breached by the defendant; and 4) the risk of harm was within the scope of protection afforded by the duty breached. Bourgeois v. Boomtown, LLC of Delaware, 10-553 (La. App. 5 Cir. 2/15/11), 62 So.3d 166, 169. A negative answer to any of the elements of the duty/risk analysis requires a no-liability determination. Id.
As the Supreme Court stated in Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La. 3/10/06), 923 So.2d 627, 633:
A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. (Internal citations omitted.)
Plaintiff argues in brief that the trial court erred by confusing the elements of negligence. Plaintiff also argues that to support its grant of summary judgment in favor of defendants, the trial court relied upon abrogated case law involving drownings that used the abolished doctrine of assumption of the risk in order to exonerate defendants. Plaintiff argues instead that the cases of Murray v. Ramada Inn, 521 So.2d 1123 (La. 1988), and St. Hill v. Tabor, 542 So.2d 499 (La. 1989) are instructive and require reversal of summary judgment in this case.
In St. Hill v. Tabor, a sixteen-year-old minor who could not swim, Shawn St. Hill, attended an "Anything Goes Pool Party" at defendant Carolyn Falgout's home celebrating her son, Steven Tabor's, receiving his GED degree. About 150 guests attended this party, which included food, alcohol, and horseplay around the pool. Mrs. Falgout hired a policeman to aid with the crowd, but hired or supplied no lifeguards. Shawn was found late in the evening at the bottom of the pool, but an investigation shed little light as to the cause of his drowning, as no one had seen him immediately before the drowning and the water in the pool had become cloudy over the course of the party. Shawn's parents sued Mrs. Falgout and her insurers, arguing that she was negligent and such negligence was a cause in fact of Shawn's drowning. A jury found no negligence due to no breach of duty. The court of appeal affirmed. The Supreme Court found, however, that Mrs. Falgout "breached her duty to act as a 'reasonable' person and to guard against unreasonable risks of injury to her guests," including acting unreasonably in hosting a swimming party with a large number of people, serving alcoholic beverages to minors, allowing swimmers to engage in horseplay, allowing swimming to continue after the water in the pool became too cloudy to see through, and by not hiring a non-party-participant lifeguard, in addition to "the inherent dangers accompanying a swimming pool under the best of circumstances and the young ages of most of the guests."
The Supreme Court found that "[u]nder the circumstances, we find that Mrs. Falgout's conduct in allowing these conditions to exist constituted a contributing cause of Shawn's drowning." The Supreme Court said "the particular risk, that one of the guests at the party would drown, was clearly within the scope of the duty. The whole purpose of prohibiting horseplay and minors drinking alcoholic beverages around the pool, of maintaining clear water and providing a life guard is to insure that there are no accidents in the pool, specifically drownings."
In St. Hill, Mrs. Falgout's duty to her guests was not created singularly by the inherent risks of a swimming pool, but rather was created in combination with the young ages of the guests (mostly minors) and the conditions of the party (horseplay, minors drinking alcohol, and poor water quality) that were apparent. The Supreme Court also found that Shawn, the victim, acted unreasonably and that such conduct contributed to his own death, in getting in a pool when he could not swim, where the water quality was cloudy and poor, remaining in the pool after horseplay began, and by drinking alcoholic beverages as a minor. The Supreme Court apportioned liability at seventy-five per cent to defendant Mrs. Falgout and twenty-five per cent to Shawn.
Though St. Hill also involved a drowning in a residential pool, it is inherently distinguishable on the facts from the present case. None of the factual circumstances that gave rise to Mrs. Falgout's duty to her guests were present in this case, other than the inherent risks present in all pools. By all accounts, Michael was an 18-year-old adult of normal intelligence with no mental disabilities; plaintiff described him in her deposition as being "very smart." At the time of his death, Michael was a high school graduate who intended to pursue a college education. Michael knew how to swim well, according to plaintiff, and had even been part of a neighborhood swim team while he was living with her. Importantly, Michael was legally an adult, unlike Shawn St. Hill.
In her deposition, plaintiff testified that no doctor ever told her that Michael should not go swimming. She explained that when he was on the swim team, he was never in the pool alone. She also testified that while she had told Casey that Michael had had seizures, she had never told Casey that Michael should not swim unsupervised, though she had told this to Michael himself. Casey confirmed, in his deposition, that neither plaintiff nor anyone else ever told him that Michael should be supervised while swimming in a pool. Casey also said that he and Michael, Sr. never discussed Michael's medical condition, nor did he discuss it with Michael himself. No evidence was presented that Michael had ever suffered a seizure while swimming. While Casey had knowledge of Michael's prior seizures, he had never seen Michael have a seizure and did not have specific medical knowledge of his condition.
The doctor who treated Michael at the hospital in the days leading to his death, Dr. Clement C. Eisworth, Jr., testified in his deposition that he could not determine, more probably than not, whether Michael had suffered a seizure in the pool, or a heart arrhythmia, or some other medical event.
This case presented the narrow issue of whether Casey had a duty under the facts of this case to supervise Michael as he swam. The evidence submitted by the parties is clear that plaintiff, who had personally told Casey that Michael had a seizure disorder and who told Michael that he should never swim alone, never advised Casey, whom she knew owned a pool, that Michael should be supervised while he swam. Plaintiff argues in brief that issues of material fact remain outstanding, particularly that Casey's "level of knowledge regarding Michael's risk of seizure is critical to understanding the nature of the duty owed under the circumstances." We disagree, however, that Casey's "level of knowledge" of Michael's seizure risk constitutes a genuine issue of material fact precluding summary judgment in favor of defendants. Casey was clear at his deposition that he did not have much knowledge about Michael's seizures, though he did know that he took medication for the condition. Plaintiff also failed to show that swimming enhanced Michael's risk of experiencing a seizure (and the record fails to reflect that the seizures Michael suffered in the past occurred while swimming). Casey did not know that Michael "had a high risk of drowning," as claimed by plaintiff in her brief, especially given that plaintiff never advised Casey that Michael should be supervised while swimming, nor was the existence of this alleged "high" risk established by the evidence. Thus, no genuine issue of material fact remains outstanding in this regard.
Reading plaintiff's deposition excerpts, it appears that her advice to Michael never to swim alone was also based upon the general risk to all swimmers of "getting a cramp" while swimming. --------
Plaintiff also argues that this Court should look to Murray v. Ramada Inns, Inc., supra, which she argues was decided under similar facts and in which the court disapproved of the same "no duty" argument currently being made by defendants. However, plaintiff's reliance on Murray is misplaced. The factual circumstances therein concerned an innkeeper's duty to its patrons regarding use of a motel swimming pool with no lifeguards present, and which lacked signs warning against diving into the shallow end of the pool. Therein, the plaintiffs' decedent became paralyzed and later died after he sustained injuries after diving into the shallow end of the pool. The defendants urged application of assumption of the risk as a bar to the plaintiffs' recovery; the trial court refused to issue such an instruction to the jury, who returned a verdict finding the plaintiffs' decedent 50 per cent at fault in his own injury. The Louisiana Supreme Court, answering a certified question, upheld the jury's allocation of fault, holding that assumption of the risk had been subsumed into Louisiana's newly adopted comparative fault scheme and no longer operated to bar a plaintiff's recovery. Id., 521 So.2d at 1132-33. Murray does not, however, hold that there can never be factual scenarios where a pool owner owes no particularized duty to an adult swimmer, such as the duty to supervise Michael while he swam, as claimed here. Nor does a finding of no duty on the part of Casey under the facts of this case constitute a revival of the assumption of the risk doctrine. Plaintiff's arguments in this regard are without merit.
After a thorough review of the record and the trial court's reasons for judgment, we find no merit to plaintiff's argument the trial court was confused or misapplied the relevant law on negligence and duty/risk. Rather, we find that the trial court properly considered the unique facts and circumstances presented in this case to find that Casey owed no duty to supervise Michael when he swam.
Upon de novo review, we find that plaintiff, the adverse party to the motion for summary judgment, failed to produce factual support sufficient to establish the existence of a genuine issue of material fact or that defendants, as movers on the motion for summary judgment, are not entitled to judgment as a matter of law.
CONCLUSION
For the foregoing reasons, we affirm the trial court's judgment granting summary judgment in favor of defendants.
AFFIRMED