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Jackson v. The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

Court of Appeals of Louisiana, First Circuit

January 9, 2020

JACQUELYN B. JACKSON
v.
THE BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, EMR SERVICES, LLC, KONE, INC., AND ANY UNIDENTIFIED LSU STUDENT UNION AGENTS AND/OR EMPLOYEES PAULETTE FENDERSON HEBERT AND FARRAH GAINIE WALLIS
v.
THE BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, EMR SERVICES, LLC, KONE, INC., AND ANY UNIDENTIFIED LSU STUDENT UNION AGENTS AND/OR EMPLOYEES

          Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana The Honorable R. Michael Caldwell, Judge Presiding

          Dominic N. Varrecchio New Orleans, Louisiana Counsel for Plaintiffs/Appellants Jacquelyn B. Jackson, Paulette Fenderson Hebert, and Farrah Gainie Willis

          Christopher J. Aubert David M. Gold Covington, Louisiana Counsel for Defendant/Appellee EMR Services, LLC

          BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

          THERIOT, J.

         In this case involving personal injuries allegedly sustained by elevator passengers when the elevator malfunctioned, the plaintiffs appeal a summary judgment granted in favor of the elevator maintenance provider, dismissing plaintiffs' claims against it with prejudice. For the reasons set forth herein, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On June 9, 2014, Jacquelyn B. Jackson, Paulette Fenderson Hebert, and Farrah Gainie Wallis (collectively referred to herein as "Plaintiffs"), were among approximately eight or nine passengers on an elevator in the LSU Student Union Building. According to the Plaintiffs' allegations, the elevator "fell" or "dropped" several feet very swiftly and then stopped abruptly, causing injuries to the Plaintiffs. Plaintiffs reported the incident to the LSU Student Union employees on duty, and accident reports were prepared. Plaintiffs alleged that immediately after the incident, they heard the LSU employees who assisted passengers from the elevator state that there had been similar problems or malfunctions with the same elevator the day before. Further, Jackson alleged that the LSU employees mentioned that they would need to report the elevator problems again.

         Plaintiffs sued the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College ("LSU"), as the owner/operator of the LSU Student Union Building; EMR Services, L.L.C. ("EMR"), as an elevator installer or elevator maintenance provider for the LSU Student Union Building; KONE, Inc. ("KONE"), as an elevator manufacturer, installer, or maintenance provider for the LSU Student Union Building; and certain unidentified LSU employees.[1]

         EMR filed a motion for summary judgment on the Plaintiffs' claims on May 22, 2017.[2] In support of its motion, EMR filed the affidavit of its elevator mechanic, Robert Pearce, and excerpts from Jackson and Hebert's depositions. Pearce stated that as an EMR elevator mechanic, he was responsible for repairing and maintaining the LSU Student Union elevator at issue and that the elevator was maintained in accordance with industry standards at and around the time of the incident involving Plaintiffs. Pierce attested that EMR's records showed that LSU called EMR to report the incident involving Plaintiffs, but that the records contained no reports of the LSU Student Union elevator "falling" at any time before or after the incident involving Plaintiffs. Pearce inspected the elevator following the call from LSU and found that the elevator had suffered a power failure and needed adjustments to the first floor interlock and to a roller guide. Pearce explained that the power delivery failure that occurred would account for the elevator stopping unexpectedly (described as a "fall" or "drop" by Plaintiffs); however, according to Pearce's affidavit, power delivery to the elevator was not provided by EMR and was beyond the scope of EMR's maintenance services. Pearce further explained that although he did have to make some adjustments to the elevator following the incident involving Plaintiffs, neither adjustment was the result of a problem which could have caused the "fall" or "drop" described by Plaintiffs. Rather, he believed that the adjustments may have been needed as a result of the incident. In her deposition, Jackson testified that she had no idea what caused the elevator to drop and then stop abruptly, nor did she know who maintained the elevator or what was done to maintain the elevator. However, she testified that an unidentified "LSU maintenance guy" who pried the doors open and helped them out of the elevator said, "That happened yesterday. I thought we fixed that." Hebert likewise testified that she did not know what EMR did or did not do to maintain the elevator.

         Plaintiffs filed a single opposition, addressing both EMR and LSU's motions for summary judgment. With regard to EMR's liability, Plaintiffs simply argued that there remained a genuine issue of material fact because Plaintiffs could not determine whether EMR was negligent in its performance or nonperformance of maintenance services on the LSU Student Union elevator at issue "until LSU provides the names and contact information of those witnesses working at the LSU Student Union immediately before, after[, ] and during the alleged problems with the subject elevator, as well as the records of when and how EMR was placed on notice of the malfunctioning subject elevator." In support of its opposition, Plaintiffs filed LSU's responses to discovery, Jackson's affidavit, an unauthenticated copy of Jackson's accident report, Hebert's affidavit, excerpts from Jackson's deposition, and excerpts from Hebert's deposition.[3] LSU's answers to interrogatories filed by Plaintiffs in opposition to summary judgment simply state that EMR provided routine maintenance of the elevator at issue pursuant to its service contract with LSU, that LSU's former Facilities Manager, John Bryan Lacy, notified EMR following the incident involving Plaintiffs and requested maintenance, and that EMR came out to inspect the elevator shortly thereafter. Neither the affidavits nor the deposition excerpts filed by Plaintiffs in opposition to the motions for summary judgment contain any mention of EMR.

         The trial court took the matter under advisement after a hearing on the motions for summary judgment in order to conduct an in camera inspection of LSU's privilege logs and certain evidence. Following the trial court's in camera inspection, LSU was ordered to supplement certain discovery responses and Plaintiffs were given an additional sixty-day period to conduct additional discovery. The motions for summary judgment were reset for hearing on May 21, 2018.

         On May 8, 2018, Plaintiffs filed a supplemental memorandum in opposition to the motions for summary judgment and attached supplemental affidavits of Jackson and Hebert, as well as the affidavit of another elevator passenger, Diane Whipple, and LSU's supplemental discovery responses.[4] Jackson and Hebert's supplemental affidavits still did not contain any mention of EMR; however, both noted (in response to Pearce's statement that a power delivery failure had occurred) that the elevator lights never blinked or went out. Whipple's affidavit was essentially the same as Plaintiffs' affidavits and did not mention EMR except to state that the lights on the elevator did not blink or go out. LSU's discovery responses filed with Plaintiffs' supplemental opposition state that LSU did not contact EMR regarding any problems or necessary repairs for the subject elevator before or after the incident, other than the call to report the incident involving Plaintiffs and request maintenance. EMR's repair order for its maintenance call following the incident involving Plaintiffs was attached to LSU's discovery responses. This repair order described the work performed as:

Customer said that car dropped below floor. Checked controller and found an ac power supply fault, power failed. 170. A door closing fault, door failed to close too many times. 44. A load weighing fault, it saw the wrong voltage in the start. 107. Reset unit and trouble shot, found 1st floor hatch door interlock was out of adjustment. Readjusted interlock and pickup ...

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