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Bowen v. State, ex rel. Secretary of Health and Hospitals

Court of Appeals of Louisiana, First Circuit

March 21, 2018

PATRICIA ASHLEY BOWEN
v.
STATE OF LOUISIANA, EX REL. SECRETARY OF HEALTH AND HOSPITALS, EARL K. LONG MEDICAL CENTER; LOUISIANA STATE UNIVERSITY AGRICULTURAL AND MECHANICAL COLLEGE, THROUGH LSU HEALTH CARE SERVICES DIVISION, MANAGER OF EARL K. LONG AND STRATOS ELEVATOR COMPANY AND STARNET INSURANCE COMPANY; AND YORK RISK SERVICES GROUP, AND FARA, A YORK RISK SERVICE COMPANY

          On Appeal from the 19th Judicial District Court ' In and for the Parish of East Baton Rouge State of Louisiana Trial Court Docket Number 625, 220, Sec. 22 Honorable Timothy E. Kelley, Judge Presiding

          Louis R. Koerner, Jr. New Orleans, Louisiana Counsel for Plaintiff/Appellant, Patricia Ashley Bowen

          Matthew D. Fontenot Lafayette, Louisiana Counsel for Intervenor/Appellant, Sentry Insurance Company, A Mutual Company

          Jeff Landry Attorney General Andrew Blanchfield C. Reynolds LeBlanc Special Assistant Attorney Generals Baton Rouge, Louisiana Counsel for Defendant/Appellee, State of Louisiana, The Board of Supervisors, Louisiana State University Agricultural and Mechanical College and Earl K. Long Medical Center

          Andre C. Gaudin Scott O. Gaspard Metairie, Louisiana Counsel for Defendants/Appellees, Stratos Elevator Company and Starnet Insurance Company

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

          PENZATO, J.

         This is an appeal from a trial court judgment granting a motion for summary judgment in favor of the defendants/appellees. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Patricia Bowen filed this lawsuit on October 9, 2013, against the State of Louisiana, and the Board of Supervisors, Louisiana State University Agricultural and Mechanical College, and Earl K. Long Medical Center (collectively, "EKL") for injuries she sustained exiting an elevator located at Earl K. Long Medical Center. Also named as defendants were Stratos Elevator, Inc., which had a contract to provide maintenance services for the elevators at Earl K. Long Medical Center, and its insurer, StarNet Insurance Company (collectively, "Stratos"). According to Ms. Bowen, on October 10, 2012, the elevator dropped and then abruptly went up as she exited, causing her to be violently flung into the adjacent wall, causing serious injury. Ms. Bowen alleged that the defendants were negligent by not performing proper maintenance and/or maintaining preventative maintenance on the elevators at Earl K. Long Medical Center, and by not providing her with a safe environment. Ms. Bowen further alleged that at the time of the incident, she was performing her work duties for Amerigroup Corporation. In its capacity as the workers' compensation insurer that paid Ms. Bowen benefits as a result of the accident, Sentry Insurance, A Mutual Company ("Sentry"), filed *a petition for intervention on November 20, 2013.

         On June 3, 2015, EKL filed a motion for summary judgment, alleging that Ms. Bowen could not prove that EKL had prior notice of an alleged elevator defect, that the alleged defect presented an unreasonable risk of harm, and that EKL acted unreasonably. Stratos also filed a motion for summary judgment, alleging that Ms. Bowen had no evidence of an alleged elevator defect causing injury and no evidence that Stratos knew, or should have known, 6f any alleged defect.[1]

         Following a number of continuances to allow plaintiff to conduct discovery, the motions came for hearing on February 21, 2017. The trial court granted both motions for summary judgment. With regard to Stratos, the trial court found that there was no evidence of custody or control of the elevator, and no evidence of prior notice/of a defect. With regard to EKL, the trial court found that "while there might be a genuine issue of material fact regarding whether or not there is a defect, " there was no evidence of prior notice. The trial court signed a judgment in accordance with that ruling on March 8, 2017, granting both motions for summary judgment and dismissing plaintiff's claims with prejudice. Ms. Bowen and Sentry now appeal.

         ASSIGNMENTS OF ERROR

         Sentry alleged that the trial court erred in finding that there was no notice of a hazardous condition to EKL or Stratos, and in finding that there was no "garde" by Stratos. Ms. Bowen alleged that the trial court erred in: (1) granting EKL's motion for summary judgment despite its failure to comply with pending discovery; (2) granting EKL's motion for summary judgment despite its failure to preserve evidence; (3) granting summary judgment despite two expert affidavits and other ...


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