LOIS J. TATE
TOURO INFIRMARY, ET AL
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-02308,
DIVISION "0" Honorable Robin M. Giarrusso, Judge
G. LASTRAPES, JR. LAW OFFICES POF WILEY G. LASTRAPES, JR.
COUNSEL FOR PLAINTIFF/APPELLANT
E. SPERLING NAIRDA T. COLÓN JAMES P. WALDRON FRILOT
L.L.C. 3700 Energy Centre, COUNSEL FOR DEFENDANTS/APPELLEES
composed of Chief Judge James F. McKay III, Judge Daniel L.
Dysart, Judge Tiffany G. Chase
F. MCKAY III CHIEF JUDGE
personal injury action, sounding in negligence and strict
liability, the plaintiff, Lois J. Tate, appeals the trial
court's granting of summary judgment in favor of
defendants, Touro Infirmary and Louisiana Children's
Medical Center. We affirm.
AND PROCEDURAL HISTORY
Tate alleges that she tripped over a defective threshold and
fell face first on to a terrazzo floor at the medical office
of Dr. Shelton Barnes on March 11, 2013. The space where Dr.
Barnes's office was located at 3600 Prytania Street,
Suite # 50 in New Orleans, Louisiana and leased from Touro
Infirmary. Ms. Tate alleges that she was injured as a result
of her fall.
March 6, 2014, Ms. Tate filled a petition for damages based
on negligence and strict liability, naming Touro Infirmary
(owner/lessor), Louisiana Children's Medical Center
(owner/lessee), Dr. Shelton Barnes (tenant/lessee) and
XYZ Insurance Company as defendants. After extensive
discovery, Touro Infirmary and Louisiana Children's
Medical Center, on February 21, 2017, filed a motion for
summary judgment on the basis that Ms. Tate could not meet
her burden of proof against them. Specifically, said motion
was based upon the fact that Ms. Tate could not meet an
essential element of her claim; that is that Touro had notice
of an alleged defect which Ms. Tate claims existed on the
date of her fall.
trial court granted Touro's motion for summary judgment
on May 5, 2017 and dismissed Ms. Tate's claims against
Touro and Louisiana Children's Medical Center. It is from
this judgment that Ms. Tate now appeals.
summary judgment is reviewed de novo, with the
appellate court "using the same criteria that govern the
trial court's consideration of whether summary judgment
is appropriate, i.e., whether there is a genuine issue of
material fact and whether the mover is entitled to judgment
as a matter of law." Simon v. Hillensbeck,
2012-0087, p. 6 (La.App. 4 Cir. 9/19/12), 100 So.3d 946, 950.
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 the litigant. See La.
C.C.P. art. 966(A)(1). La. C.C.P. Art. 966(A)(1) also
provides that a plaintiff or a defendant may move for summary
judgment in his/her favor for all or part of the relief for
which he/she has prayed. La. C.C.P. art. 966(A)(3) further
provides summary judgment shall be rendered if the motion,
memorandum, and supporting documents show there is no genuine
issue as to material fact and that the mover is entitled to
judgment as a matter of law.
to La. C.C.P. art. 966(D)(1), the mover has the initial
burden of proof to present that there are no genuine issues
of material fact. However, if the mover does not bear the
burden of proof at trial, the mover's motion must only
point out the absence of factual supportive ...