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Covey v. Seifert

United States District Court, M.D. Louisiana

January 23, 2019

ANGELA COVEY
v.
PHILLIP V. SEIFERT, ET AL.

          RULING AND ORDER

          JOHN W. deGRAVELLES JUDGE

         This 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.

         I. Relevant Factual Background

         A. The Parties, the Flood, and the Remediation

         This is a personal injury action arising out of the Great Flood of 2016. Most of the facts are not disputed.

         Specifically, 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, Doc. 14-1.)

         The Seiferts' property suffered severe flooding during August, 2016. (DSUF ¶ 2, Doc. 12-3; PRSUF ¶ 2, Doc. 14-1.)[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.)

         As a 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, Doc. 14-1.)

         Linda 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.)

         Weeks was asked at his deposition if Linda Seifert was “there at any time when [he was] doing [the cleanup]?”, and he responded:

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.)

         B. Plaintiff's Accident

         The 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.)

         Ms. 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.)

         Ms. 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.)

         C. Issues Surrounding the Accident

         The 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 sides rely.

         1. Defendant's Evidence

         Defendants 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.)

         Defendants 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.)

         Defendants 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.)

         Defendants 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. 12-6.)

         2. Plaintiff's Evidence

         On the 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.)

         Plaintiff 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. 14-4.)

         Even 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.)

         Mrs. 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.)

         3. Amount of Light in the Shed

         Lastly, 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:

         (Image Omitted)

(Pl. Dep. 47, Ex. AC #1, Doc. 12-5.)

         But 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.)

         II. ...


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