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Tate v. Touro Infirmary

Court of Appeals of Louisiana, Fourth Circuit

February 21, 2018

LOIS J. TATE
v.
TOURO INFIRMARY, ET AL

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-02308, DIVISION "0" Honorable Robin M. Giarrusso, Judge

          WILEY G. LASTRAPES, JR. LAW OFFICES POF WILEY G. LASTRAPES, JR. COUNSEL FOR PLAINTIFF/APPELLANT

          PETER E. SPERLING NAIRDA T. COLÓN JAMES P. WALDRON FRILOT L.L.C. 3700 Energy Centre, COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Tiffany G. Chase

          JAMES F. MCKAY III CHIEF JUDGE

         In this 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.

         FACTS AND PROCEDURAL HISTORY

         Lois J. 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.

         On 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)[1], 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.[2] 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.

         The 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.

         DISCUSSION

         A 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.

         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 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.

         Pursuant 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 ...


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