Connelly v. Veterans Administration Hospital
Connelly v. Veterans Administration Hospital
Opinion of the Court
ORDER AND REASONS
This litigation concerns a slip-and-fall at the VA Hospital in New Orleans, Louisiana. Before the Court is Defendant the United States’ “Motion for Summary Judgment.”
Also before the Court is Plaintiffs “Motion to Continue Trial.”
I. Background
On February 3, 2011, Plaintiff Mary Alicia Connelly was visiting her brother, who was a patient at the Southeast Louisiana Veterans Health Care Center in New Orleans, Louisiana.
On January. 3, 2012, Plaintiff submitted an administrative claim for negligence to the Department of Veterans Affairs.
On November 2, 2012, Plaintiff filed suit in this matter,
On April 2, 2014, Defendant filed the pending “Motion for Summary Judgment.”
On May 7, 2014, Plaintiff filed the pending “Motion to Continue Trial.”
II. Parties’Arguments
A. Defendant’s Motion for Summary Judgment
1. Defendant’s Arguments in Support
In its “Motion for Summary Judgment,” Defendant argues that summary judgment is appropriate because: “Defendant submits, and the record evidence supports, that at the time and place of Plaintiffs alleged fall, there was no foreign substance on the floor. Moreover, Plaintiff cannot prove her fall occurred and alleged injury results from a foreign substance on the premises, as would be required. Furthermore, Plaintiff is unable to prove actual or constructive knowledge by the Defendant of any alleged foreign substance of the floor.”
First, “Defendant submits, and the record evidence supports, that at the time and place of Plaintiffs alleged fall, there was no foreign substance on the floor.”
Second, according to Defendant, when a plaintiff brings a claim pursuant to the FTCA, the court applies the substantive law of the state where the alleged tortious action occurred, which in this case would be Louisiana.
2. Plaintiffs Arguments in Opposition
In opposition, Plaintiff “asserts that there are material issues of fact, and further asserts that based upon the defendant’s failure to comply with discovery and cooperate in discovery, that plaintiff has been hindered in their (sic.) ability to obtain evidence to establish negligence.”
Ms. Connelly states that at the time of the incident, she fell on a foreign substance which was present. Hospitals in Louisiana, as well as throughout the United States have a heighten duty of care to their patients and visitors. The area in question is clearly [a] high traffic area, and should have been inspected on a regular basis. It is for this reason, and furthermore, based on security needs, that video tapes exist. However, the defendant has failed to produce any evidence whatsoever to establish that normal cleaning procedures occurred, that maintenance was not called or did not appear at the scene, and that the video tape which clearly existed, fails to show any foreign substance.32
Plaintiff also contends that maintenance logs should be available, indicating any maintenance to the area where Plaintiff fell:
It is important to note that plaintiff, through discovery, requested copies of all logs from defendant showing times that maintenance was performed on the floor in question. Defendant has stated that no such logs exist. Plaintiffs position in this matter is that defense counsel has failed to produce documents which clearly do exist based upon standard procedure and protocol in government operated facilities.33
Further, Plaintiff asserts that Defendant’s failure to disclose the identity of a nurse who assisted Plaintiff after her fall is grounds for denying summary judgment:
*652 Ms. Hughs, Mr. Bell, Mr. Connelly, and Ms. Connelly all agree that there was another nurse present at the time of the accident. Defense (sic.) counsel has requested the names of this nurse and all persons who were stationed that the desk. This information has not been supplied. Defense counsel argues that they do not have records of who was working and cannot provide this information. Ms. Hughs confirms that records should exist which would make it easy to determine who this individual was. However, defense counsel has taken no steps whatsoever to provide this information, and has failed to provide a list of any and all nurses who were assigned to the floor at the time of the incident. Of course, the video tapes would clearly show who this person was, however, no such video tapes exist. Furthermore, if another person were present, why was her testimony not taken, and why did she not prepare an incident report. All of these questions raise curious issues which create grounds to deny defendant’s Motion for Summary Judgment.34
In support of her position that there was a substance on the floor, Plaintiff avers that Mr. Connelly testified that “sometime after the accident a maintenance crew appeared at the site and began cleaning the site and placed cones to mark the area.”
Plaintiff concludes arguing:
Based upon the very law cited by the defendant, genuine issues of material fact do exist, and these issues and their existence, or nonexistence, would affect the outcome of the lawsuit. It is for this reason that plaintiff filed their (sic.) Motion for Summary Judgment/Motion for Sanctions/Request for Negative Presumption. Without the information in question, it is almost impossible for the plaintiff to carry her burden of proof.39
3. Defendant’s Arguments in Further Support
In reply to Plaintiff, Defendant reiterates that Plaintiff is unable to meet her burden of showing that a foreign substance was on the floor. Defendant asserts that Mr. Connelly “testified that he was with Plaintiff at the time of her fall, but did not observe a foreign substance on the floor.”
Additionally, Defendant maintains that it has complied with all discovery obligations.
4. Plaintiffs Arguments in Further Opposition
In her sur-reply, Plaintiff clarifies that “[wjhile Mr. Connelly, whose deposition has never been received from the Court Report (sic.) by plaintiffs counsel, may not have said that he did not see a cleaning crew, he commented that he clearly saw that the area was market with a cone indicating that a cleaning crew had appeared sometime between the time of the fall and the time that Mr. Connelly returned from placing the walker in his vehicle.”
Plaintiff also reiterates her argument that Defendant has failed to comply with its discovery obligations.
B. Plaintiffs Motion to Continue Trial
1. Plaintiffs Arguments in Support
Plaintiff seeks a continuance of the trial currently set for June 2, 2014. In support of her motion, Plaintiff avers that “additional discovery has recently been produced by the defendant, and additional depositions are needed.”
2. Defendant’s Arguments in Opposition
In opposition, Defendant asserts that “[additional discovery has not recently been produced by defendant as incorrectly asserted by Plaintiff.”
III. Law and Analysis
A. Standard on Motion for Summary Judgment
. Summary judgment is appropriate when the pleadings, the discovery, and any affidavits show that “there is no genuine dispute as to any material fact and the mov-ant is entitled to judgment as a matter of law.”
The party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record, which it believes demonstrate the absence of a genuine issue of material fact.
B. Federal Tort Claims Act
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”
C. Liability for Slip-and-Falls in Hospitals Under Louisiana Law
Generally, slip-and-fall cases in Louisiana are governed by Louisiana Revised Statute § 9:2800.6, which provides:
In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.64
However, as numerous Louisiana courts have explained, hospitals are not considered “merchants” for the purposes of § 9:2800.6, and thus § 9:2800.6’s negligence standard does not apply.
While Louisiana courts agree that § 9:2800.6 does not apply, they disagree on the proper standard for evaluating slip- and-falls at hospitals. The majority approach — first articulated by the Fourth Circuit Court of Appeal of Louisiana in Neyrey v. Touro Infirmary, 639 So.2d 1214, 1217 (La.App. 4 Cir. 1994), and later adopted by the First, Third, Fourth, and
A plaintiff in a slip and fall case against a hospital must show the fall occurred and injury resulted from a foreign substance on the premises. The burden then shifts to the hospital to exculpate itself from the presumption of negligence. A hospital owes a duty to its visitors to exercise reasonable care commensurate with the particular circumstances. The hospital must show that it acted reasonably to discover and correct the dangerous condition reasonably anticipated in its business activity.66
Once a plaintiff has met her initial burden, a hospital may defeat the presumption of negligence by showing, for example, that it conducted regular inspections of its floors and had swift cleanup procedures in place.
In Holden v. Louisiana, State University Medical Center in Shreveport, 29,268 (La.App. 2 Cir. 2/28/97), 690 So.2d 958, 963, the Second Circuit Court of Appeal of Louisiana rejected the burden-shifting approach, and held that a hospital “is not required to exculpate itself from a presumption of negligence raised simply by the plaintiffs showing of a fall from a foreign substance whose source is unknown.”
In response to this line of jurisprudence placing the burden of proof on the defendant, the legislature enacted in 1988, and later amended in 1990, a special slip and fall statute, LSA-R. S. 9:2800.6, which is specifically applicable only to merchants. The Supreme Court addressed the new statute for the first time after its amendment in 1990, in Welch v. Winn-Dixie, Louisiana, Inc., 655 So.2d 309, 314 (La. 1995). It observed: “In 1900, the Legislature changed direction completely and enacted the current version of the statute which, according to one commentator, copies the ‘traditional’ rule of liability requiring actual or constructive knowledge and places the burden of proof' squarely on the plaintiff.”72
Observing that “we have not found that the Louisiana Supreme Court applied the ever-increasing post-Kavlich burdens upon non-merchant defendants such as [hospitals] between 1975 and 1990,” the Second Circuit ruled in Holden that “a non-merchant such as [defendant hospital] LSUMC is not required to exculpate itself from a presumption of negligence raised simply by the plaintiffs showing of a fall from a foreign substance.”
While the burden-shifting approach is the majority approach, that fact alone does not determine which standard the Court must apply. Rather, the Court must take into account unique considerations surrounding liability in the context of the FTCA. As explained above, the FTCA provides a remedy “for injury or loss of property caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.”
Where federal district courts have allowed premises liability claims under a negligence framework, they have required that the plaintiff show that the defendant had actual or constructive knowledge of the condition. As the court in Wiggins explained, “[t]o ignore the constructive knowledge element of [plaintiffs] negligence claim would be to impose strict lia
To summarize, Louisiana’s Courts of Appeal are split on whether a plaintiff has the burden of proving that a defendant-hospital had actual or constructive notice of a condition, and the Louisiana Supreme Court has not addressed the issue. While the majority approach involves a burden-shifting scheme that only requires plaintiff to initially prove that her fall occurred and injury resulted from a foreign substance on the premises, the minority has retained the traditional rule requiring the plaintiff to prove that the hospital had actual or constructive knowledge. Given the unique considerations posed by the FTCA, the Court will adopt the minority approach and require that Plaintiff prove that Defendant had actual or constructive knowledge. Eliminating the actual or constructive knowledge requirement “would be to impose strict liability on the defendant,”
D. Analysis
In her complaint, Plaintiff asserts that Defendant “had actual notice of-the hazardous floor condition.”
With respect to constructive knowledge, Plaintiff has offered no indication of how large the alleged spill was, how long it had been on the floor, or whether the liquid was colored and easily visible, or transparent and difficult to see. In her opposition, Plaintiff notes that “[o]f course, she is unable to identify whether this was coffee, water, juice, or whatever,”
Plaintiff acknowledges that she “is in a quandary as to how to carry her burden of proof,”
Further, Plaintiff has failed to show that additional discovery is warranted. On May 7, 2014, Plaintiff filed a “Motion to Continue Trial,” asserting that “additional discovery has recently been produced by the defendant, and additional depositions are needed. Plaintiff wishes to depose all individuals who were recently identified by the defendant as being on the premises and/or working at the time of the accident. Furthermore, defendant provided Affidavits from security personnel, as well as other employees of the VA Hospital, in support of their Motion for Summary Judgment. Plaintiff wishes to depose these individuals.”
IV. Conclusion
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits show that “there is no genuine dispute as to any material fact and the mov-ant is entitled to judgment as a matter of law.”
IT IS HEREBY ORDERED that Defendant’s “Motion for Summary Judgment”
IT IS FURTHER ORDERED that Plaintiffs “Motion to Continue Trial” is DENIED.
. Rec. Doc. 30.
. Rec. Doc. 45.
. Rec. Doc. 9 at ¶ 9.
. Id. at ¶11.
. Id. at ¶ 13.
. Id. at ¶ 14.
. Id. at ¶ 4.
. Id.
. Rec. Doc. 1.
. Rec. Doc. 8; Rec. Doc. 9; Rec. Doc. 11.
. Rec. Doc. 9 at ¶¶ 15-17.
. Id. at ¶ 13.
. Id. at ¶ 17.
. Rec. Doc. 30.
. Rec. Doc. 32.
. Rec. Doc. 36.
. Rec. Doc. 40.
. Rec. Doc. 45.
. Rec. Doc. 46.
. Rec. Doc. 30-1 at pp. 1-2.
. Id. atp.-4.
. Id.
. Id.
. Id. at p. 6.
. Id.
. Id. at p. 7 (citing Millet v. Evangeline Health Care, Inc., 02-1020 (La.App. 5 Cir. 1/28/03), 839 So.2d 357, 360-61).
. Id. (quoting Millet, 839 So.2d at 361).
. Id. (citing Tindall v. United States, 901 F.2d 53, 55 n. 3 (5th Cir. 1990); Lathers v. Penguin Indus., Inc., 687 F.2d 69, 72 (5th Cir. 1982)).
. Id. (quoting 28 U.S.C. § 1346(b)(1)).
. Id.
. Rec. Doc. 32 at p. 1.
. Id. at pp. 2-3.
. Id. atp. 2.
. Id. at pp. 4-5.
. Id. at pp. 1-2.
. Id. at pp. 3-4.
. Id. at p. 5.
. Id.
. Id.
. Rec. Doc. 36 at p. 2.
.Id.
. Id.
. See id. at pp. 3-7. The Court’s order addressing Plaintiff's "Motion for Negative Presumption Based on Spoliation of Evidence” extensively discusses the parties’ positions regarding whether Defendant has fulfilled its discovery obligations. Those arguments are not restated here.
. Rec. Doc. 40 at p. 2.
. See id. at pp. 3-6. The Court’s order addressing Plaintiff’s "Motion for Negative Presumption Based on Spoilation of Evidence” .extensively discusses the parties' positions regarding whether Defendant has fulfilled its discovery obligations. Those arguments are not restated here.
. Rec. Doc. 45-1 at p. 1.
. Id.
. Id. at p. 2.
. Rec. Doc. 46 at p. 1.
. Id. at pp. 1-2.
. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
. Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
. Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991).
. Id. at 1265.
. See, e.g., Celotex, 477 U.S. at 325, 106 S.Ct. 2548; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994).
. Id.
. Aretz v. United States, 604 F.2d 417, 426 (5th Cir. 1979) (quoting 28 U.S.C. § 1346(b)).
. Williamson v. U.S. Dep’t of Agric., 815 F.2d 368, 374 (5th Cir. 1987) (citing United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed,2d 390 (1976)); see also Thomas v. Calavar Corp., 679 F.2d 416, 418 (5th Cir. 1982) (“The FTCA permits recovery in tort against the United States only 'under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’ ”) (quoting 28 U.S.C. § 1346(b)).
. 28 U.S.C. § 1346(b)(1); see also Thomas, 679 F.2d at 418.
.La.Rev.Stat. 9:2800.6(b).
. See, e.g., Grinnell v. St. Francis Med. Ctr., Inc., 48,249 (La.App. 2 Cir. 8/21/13), - So.3d -, -, 2013 WL 4451069, at *6 ("This court has., previously held that a hospital is not a ‘merchant’ under La. R.S. 9:2800.6”); Millet v. Evangeline Health Care, Inc., 02-1010 (La.App. 5 Cir. 1/28/03), 839 So.2d 357, 360 ("The burden of proof that LSA-R.S. 9:2800.6 establishes should not have been used in this case where the accident occurred on a hospital’s premises, instead of a merchant’s premises.”); Neyrey v. Touro Infirmary, 639 So.2d 1214, 1217 (La.App. 4 Cir. 1994) ("R.S. 9:2800.6 expressly applies to ‘merchants' as defined therein, and hospitals are not covered by that statute.”).
.Neyrey, 639 So.2d at 1216 (internal citations omitted); see also Terrance v. Baton Rouge Gen. Med. Ctr., 2010-0011 (La.App. 1 Cir. 6/11/10), 39 So.3d 842, 844 (discussing Neyrey); Millet, 839 So.2d at 361 ("The proper burden of proof in a claim for injuries caused by a condition in a hospital is set forth in Neyrey v. Touro Infirmary.”); Harkins v. Natchitoches Parish Hosp., 97-83 (La.App. 3 Cir. 5/7/97), 696 So.2d 19, 21 (citing Neyrey for the proposition that "Ms. Harkins is required to prove that she tripped and fell and was injured because of some defect at the hospital’s premises, creating a presumption of negligence on the hospital’s part. If she meets this burden of proof, the hospital must exculpate itself from that presumption.”).
The Court notes that although Louisiana courts have adopted burden-shifting framework described in Neyrey, Neyrey’s holding did not rely on this framework and the ac-cpmpanying presumption of the negligence. Rather, the Neyrey court found that hospital employees had actual notice that a hazardous substance was on the floor. Neyrey, 639 So.2d at 1217 (describing the burden-shifting standard but remarking "[njevertheless, we need not consider whether a hospital’s burden of proof should be lessened to the burden now placed on a merchant because, as detailed below, the record supports a finding that Touro failed to exercise reasonable care commensurate with the circumstances.).
. See Terrance, 39 So.3d at 846 (holding that the hospital had exculpated itself from the presumption of liability where witnesses testified to "the personal and attentive floor inspection that occurred every ten-to-fifteen minutes throughout each and every day by the hospital cafeteria supervisor and the swift cleanup procedures followed by the cafeteria employees if a spill was discovered”).
. Holden, 690 So.2d at 963.
. Id. at 962.
. Id. (citing Welch v. Winn-Dixie, Louisiana, Inc., 655 So.2d 309, 314 (La. 1995)).
. Id. at 963.
. Id.
. Id.
. 28U.S.C. § 1346(b)(1).
. Aretz v. United States, 604 F.2d 417, 426-27 (5th Cir. 1979) (“The liability of the United States under the Act is limited by section 1346(b) to the ‘negligent or wrongful’ acts of its employees; this language has been interpreted to preclude liability of the United States based on strict liability in tort.”).
.Perkins v. United States, No. 98-2636, 1999 WL 148442, at *2 (E.D.La. Oct. 24, 2008) (Sear, J.) (quoting Berkman v. United States, 957 F.2d 108, 113 (4th Cir. 1992)); see also Charles v. United States Postal Serv., No. 06-277, 2007 WL 925899, at *2 (E.D.La. Mar. 13, 2007) (Africk, J.) (holding that “plaintiff's complaint fails to allege negligence on the part of any specific federal employees for any specific acts of negligence, her claim is one for premises liability and, therefore, she cannot sustain her FTCA action”); Graubarth v. United States ex rel Dept. of Interior, No. 05-892, 2005 WL 3543763, at *4 (E.D.La. Oct. 4, 2005) (Africk, J.) (holding that, where plaintiff’s complaint failed to name any specific
. Perkins, 1999 WL 148442, at *2.
. Graubarth, 2005 WL 3543763, at *4.
. Jolliff v. United States, No. 11-1150, 2012 WL 2449952, at *5 (E.D.La. June 27, 2012) (Fallon, J.) (evaluating plaintiff's claim for damages resulting from falling debris at an IRS building under a negligence framework); Wiggins v. United States, No. 08-0008, 2009 WL 2176043, at *2 (E.D.La. July 22, 2009) (Feldman, J.) ("To the extent the plaintiff asserts that the defendant acted unreasonably in failing to dry the wet floor or otherwise prevent the rainwater from creating a slick condition, her claim sounds in negligence, not strict liability.”); Gourgeot v. United States Postal Service, No. 07-1621, 2008 WL 4724382, at *3 (E.D.La. Oct. 24, 2008) (Berrigan, J.) (allegations attributing plaintiff's fall to the condition of the stairs outside the post office stated a claim under the FTCA); Janice v. United States, No. 06-922, 2008 WL 269530, at *6 (W.D.La. Jan. 29, 2008) (allowing FTCA premises liability claim to proceed so long as the claim was not a strict liability claim such that it did not concern an unknown, inherent defect); Jamison v. United States, 491 F.Supp.2d 608, 617 (W.D.La. 2007) (FTCA did not bar action against United States for general premises liability under Louisiana negligence theory).
.Wiggins, 2009 WL 2176043, at *3. The court ultimately granted summary judgment to the defendant, finding that the plaintiff could not establish the elements of a negligence claim. Id. at *6.
. Id. at *6.
. Jolliff, 2012 WL 2449952, at *6.
. Wiggins, 2009 WL 2176043, at *6.
. Aretz, 604 F.2d at 426-27 ("The liability of the United States under the Act is limited by section 1346(b) to the “negligent or wrongful” acts of its employees; this language has been interpreted to preclude liability of the United States based on strict liability in tort.”).
. Rec. Doc. 9 at ¶ 13.
. See, e.g., Celotex, 477 U.S. at 325, 106 S.Ct. 2548; Ragas, 136 F.3d at 458.
. Rec. Doc. 30-6, Deposition of Mary Alicia Connelly, dated Jan. 9, 2014, atp. 3.
. Rec. Doc. 32 at p. 5.
. Id.
. See Rec. Doc. 24-6, Declaration of Robert W. Kenyon, dated Feb. 10, 2014.
. See Rec. Doc. 24-7, Declaration of Gary N. Speyrer, dated Feb. 5, 2014.
. See Rec. Doc. 24-8.
. See Rec. Doc. 24-4, Letter from Sunni J. LeBeouf, Assistant United States Attorney to J. Michael Daly, Jr., Walker Willard LLP, dated Jan. 22, 2014.
. Rec. Doc. 45-1 atp. 1.
. See Rec. Doc. 24 and attached exhibits.
. Rec. Doc. 46.
. Fed.R.Civ.P. 56(a); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Little, 37 F.3d at 1075.
. See, e.g., Celotex, 477 U.S. at 325, 106 S.Ct. 2548; Ragas, 136 F.3d at 458.
. Rec. Doc. 30.
. Rec. Doc. 46.
Reference
- Full Case Name
- Mary Alicia CONNELLY v. VETERANS ADMINISTRATION HOSPITAL
- Cited By
- 2 cases
- Status
- Published