United States District Court, M.D. Louisiana
RULING AND ORDER
W. deGRAVELLES JUDGE
matter comes before the Court on the Motion for Summary
Judgment (Doc. 12) filed by Defendants Phillip V.
Seifert, Linda K. Seifert, and Allstate Insurance Company.
Plaintiff Angela Covey opposes the motion. (Doc. 14.)
Defendants have filed a reply. (Doc. 15.) Oral argument is
not necessary. The Court has carefully considered the law,
the facts in the record, and the arguments and submissions of
the parties and is prepared to rule. For the following
reasons, Defendants' motion is denied.
Relevant Factual Background
The Parties, the Flood, and the Remediation
a personal injury action arising out of the Great Flood of
2016. Most of the facts are not disputed.
in 2016, Defendants Linda and Phillip Seifert were owners of
a residence located at 23439 Blood River Road, Springfield,
Louisiana. (Defendant's Statement of Undisputed
Facts (“DSUF”) ¶ 1, Doc. 12-3;
Plaintiff's Response to Statement of Undisputed
Fact (“PRSUF”) ¶ 1, Doc.
14-1.) That property was insured by Defendant Allstate.
(DSUF ¶ 1, Doc. 12-3; PRSUF ¶ 1,
Seiferts' property suffered severe flooding during
August, 2016. (DSUF ¶ 2, Doc. 12-3;
PRSUF ¶ 2, Doc. 14-1.) The parties agree that, at
this time, “Phillip Seifert was eighty-two years old
and in bad health[, ]” and “Linda Seifert was a
frail older lady[.]” (DSUF ¶ 3, Doc.
12-3; PRSUF ¶ 3, Doc. 14-1.)
result of the flood, the Seiferts' dwelling was
uninhabitable, and its contents suffered severe damage.
(DSUF ¶ 4, Doc. 12-3; PRSUF ¶ 4,
Doc. 14-1.) After their evaluation, the Seiferts resided in
Osyka, Mississippi near family members for about six months
until they moved into a FEMA trailer on their property.
(DSUF ¶ 5, Doc. 12-3; PRSUF ¶ 5,
Seifert hired her son Michael Weeks to help clean out the
flooded house and barn, and it was agreed that his wife,
Plaintiff Angela Covey, could assist him. (DSUF
¶ 6, Doc. 12-3; PRSUF ¶ 6, Doc. 14-1.) The
Seiferts agreed that Mr. Weeks and his wife Angela Covey
would each receive $100 per day. (DSUF ¶ 6,
Doc. 12-3; PRSUF ¶ 6, Doc. 14-1.) Plaintiff
emphasizes that Weeks earns well over $100 per day in his
regular job. (Weeks Dep. 35: 5-15, Doc. 12-4.)
was asked at his deposition if Linda Seifert was “there
at any time when [he was] doing [the cleanup]?”, and he
Very, very rarely; they were there to deliver supplies and so
forth and to bark at me a little bit and then - you know,
because that's what moms do best, and she would sometimes
deliver supplies, pay me back, reimburse me for supplies that
I got, and she would go out and play with the - not play, but
work in the garden and recover plants, trying to get her
plants back, and she wouldn't not so much go in and work
because she's, kind of, frail.
(Weeks Dep. 36: 14-24, Doc. 12-4.)
present suit arises out of an accident that Plaintiff alleges
occurred while she was cleaning out a large shed (also called
a barn or a shop) on Seiferts' “house.”
(DSUF ¶ 7, Doc. 12-3; PRSUF ¶ 7,
Doc. 14-1; L. Seifert Dep. 10:21-23, Doc. 12-6.) Plaintiff
reported that she slipped in the shed while pulling out tools
and other contents of that building. (DSUF ¶ 8,
Doc. 12-3; PRSUF ¶ 8, Doc. 14-1.)
Covey allegedly slipped and fell when she stepped into a pile
of adult diapers in the shed that were saturated and broken
from the flood. (DSUF ¶ 9, Doc. 12-3;
PRSUF ¶ 9, Doc. 14-1.) When some of the diapers
broke, silicone beads spread all over the shed.
(DSUF ¶ 10, Doc. 12-3; PRSUF ¶
10, Doc. 14-1.)
Covey testified that, when she stepped on the pile of wet
diapers, her left foot slipped into a fake bomb that was a
movie prop and her left foot suffered abrasions that later
became infected. (DSUF ¶ 13, Doc. 12-3;
PRSUF ¶ 16, Doc. 14-1.) Plaintiff did not seek
treatment until about three or four days later when her left
foot had become swollen from an infection. (DSUF
¶ 17, Doc. 12-3; PRSUF ¶ 17, Doc. 14-1.)
Issues Surrounding the Accident
central issue here is whether the condition was open and
obvious and, related, whether the Seiferts were negligent.
The Court will now break down the evidence upon which both
point to Plaintiff's own testimony; she reported that the
pile of damaged diapers was “big, ” measuring
five feet by five feet and about eighteen inches tall.
(DSUF ¶ 11, Doc. 12-3; PRSUF ¶
11, Doc. 14-1.) Additionally, when she was asked if the pile
was “hidden in any way, ” she responded,
“It was right out in the open. I didn't see it. I
didn't see it. . . . I didn't have my glasses
on.” (Pl. Dep. 52:24-53:3, Doc. 12-5.)
further highlight that Plaintiff had fallen twice before her
main fall in the barn, one of which was “on a pile of
Depends outside the barn to the right of a tree” in a
hole full of garbage and debris. (Pl. Dep. 59:4-62:6., Doc.
12-5.) On this first occasion, which occurred three or four
days before her fall in the barn, she had previously been in
the shed removing debris during the daytime. (Pl. Dep.
61:25-62:14, Doc. 12-5.)
also rely on Weeks' testimony. Weeks stated that the
“stuff [(silicone)] was everywhere, I mean, it was
actually up - it's as high as - everything that you could
grab all the way up above your head, this stuff stuck to, you
know, so . . . if she would been climbing the walls, she
would have slid off of it[.]” (Weeks Dep. 45:23-46:3,
Doc. 12-4.) “[I]t was like a jelly everywhere. . . .
[a] gelatinous substance” that was “coating
everything[.] . . . [T]his is a layer . . . about a
quarter-inch thick over everything in sight, and then it was
as about . . . a big pile of it.” (Weeks Dep.
47:18-48:5, Doc. 12-4.)
also point to Mrs. Seifert's testimony to support their
motion. Mrs. Seifert said that the debris was “all over
the place, ” and the “silicon stuff was
everywhere.” (L. Seifert Dep. 25:15-25, Doc. 12-6.)
Linda Seifert also stated that the diapers “were in
boxes, sealed, but the floods opened the boxes and . . . they
were everywhere.” (L. Seifert Dep. 11:17-21, Doc.
other hand, Plaintiff highlights different facts which
demonstrate Defendants' negligence. For instance, unlike
Mrs. Seifert, Weeks said the diapers had been opened before
the flood, as opposed to being “closed up like they
would be from the manufacturers, . . . like, to have a seal
around them.” (Weeks Dep. 46:8-46:21, Doc. 12-4.) The
diapers were “stuffed into boxes . . . and improperly
stored . . ., and then they busted . . . and went
everywhere[.]” (Weeks Dep. 46:22-48:5, Doc. 12-4.)
also emphasizes Linda Seifert's own testimony. Seifert
stated that conditions in the shop were “very dangerous
because of the wet on the floor, the water and slush that was
there on the floor. Everything you touched, there was water
coming out of it.” (L. Seifert Dep. 35:18- 21, Doc.
more so, Plaintiff focuses on Mrs. Seifert's own conduct
in allegedly creating the condition. Linda Seifert tried to
do “a little” of the cleanup work herself. (L.
Seifert Dep. 10:3- 12, Doc. 12-6.) Mrs. Seifert stated that
she “took a shovel when [she] was there one day alone,
and [she] took a shovel and shoveled it out as much as [she]
could because [she] was afraid [her] husband would try and go
back there with his walking cane.” (L. Seifert Dep.
11:21-25, Doc. 12-6.) Mrs. Seifert was asked if she
“tried to clean up some of that mess back there prior
to [Plaintiff and Weeks] coming”, and she responded:
“there was so much debris in there . . . I made myself
a walkway through there so I could check on the back items .
. . in the back of the shop, but there was no way to get all
of it.” (L. Seifert Dep. 12:9-24, Doc. 12-6.)
Seifert also testified that she did not tell her son about
the condition of the floor. Specifically, she stated:
Q: Now, did you tell them anything about there being this
diaper, gelatinous, slippery substance on the floor before
they went in?
A: I believe I told my son, but I'm not quite sure. I
mean there is no way for them to notice. I mean I had it - -
some of it shoveled outside the door to the side. . . under
the bushes, and I was very embarrassed that that had
happened. . . . I didn't want my husband - - no, him
anywhere near there, and I didn't want him to see it,
what happened. . . . But - - and I tell you the truth, I - -
(Witness shakes head.) - - I don't - - I don't
remember telling him. I really don't remember telling
him. I remember telling him to be very careful - -
(L. Seifert Dep. 14:1-24, Doc. 14-4.) She later said:
Q: I just want to be clear about this - - this mess with the
diapers. You didn't mention anything at all to Angela
about that particular problem, the silica -- A: I know I
didn't, because that's why I was back there with the
shovel, because I was so embarrassed about that happening . .
. and didn't want anybody to see that or have any
questions about my mother, you know.
(L. Seifert Dep. 35:22-36:6, Doc. 14-4.)
Amount of Light in the Shed
the parties disagree about the amount of light in the shed.
Defendants point to the fact that the front doors of the shed
were open at the time of the fall and that it was “late
afternoon . . . [b]etween 3:30 and four, five, maybe.”
(Weeks Dep. 44:24-45:6, Doc. 12-4.) Defendant also highlights
a photograph of the barn showing two windows on the side:
(Pl. Dep. 47, Ex. AC #1, Doc. 12-5.)
Weeks later said of the Plaintiff's fall: “I mean,
she wasn't right on that pile because you could - - I
suppose, you could have seen the pile, maybe, but there no
lights, so we weren't able to hook up any lights, so - -
and it was dark in the afternoon, and their shop was in the
shade, and the sun sets behind us.” (Weeks Dep.
48:10-15, Doc. 12-4.) According to Weeks, that was also the
first time Weeks and Plaintiff had been in the shed after the
flood. (Weeks Dep. 48:16-18, Doc. 12-4.) Additionally, there
was no electricity at the house during this time. (Pl. Dep.
62:18-21, Doc. 12-5.)