author: KEATY, Judge.

text:
    PROFESSIONAL FLUID SERVICES, LLC v. NORSK BRONNSERVICE AS, et al.
    17-920
    Court of Appeal of Louisiana, Third Circuit.
    April 25, 2018
    Michael J. Remondet, Jr., Jeansonne & Remondet, Post Office Box 91530, Lafayette, Louisiana 70509, (337) 237-4370, Counsel for Plaintiff/Appellee: Professional Fluid Services, LLC
    David J. Schexnaydre, Schexnaydre Law Firm, LLC, 2895 Highway 90, Suite 212, Mandeville, Louisiana 70471, (985) 235-1089, Counsel for Defendants/Appellants: Norsk Bronnservice AS NBS Solutions AS
    Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.
   KEATY, Judge.

This is a breach of contract case. The parties filed opposing motions for summary judgment concerning a liquidated damages clause in a contract between them. The trial court denied the defendants' motion for summary judgment, granted partial summary judgment in favor of the plaintiff, struck the liquidated damage clause from the contract, and dismissed the defendants' counterclaim. The defendants took an appeal from the judgment granting the plaintiff's motion. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Professional Fluid Services, LLC (PFS), is a Louisiana corporation that develops and manufactures products used in the oil industry. In November 2011, PFS entered into an Exclusive Marketing Agreement (2011 EMA) with Norsk Bronnservice AS (NBS), a Norwegian corporation, to market PFS's products in the Russian Federation. On February 10, 2012, PFS signed a second EMA (2012 EMA) with NBS, which unlike the 2011 EMA, included a liquidated damages clause.

By email dated June 3, 2015, PFS terminated the EMAs with NBS citing "unresolvable business disputes." In response, NBS sent PFS an invoice seeking $663,267.97 in liquidated damages that it calculated under Section 7(d) of the 2012 EMA. Several weeks later, PFS filed suit against NBS, seeking a declaratory judgment plus damages based upon NBS's breach of the 2011 EMA. More specifically, PFS asserted that NBS breached the 2011 EMA by failing to pre-pay orders, maintain inventory, and sell any PFS products in 2015. PFS sought injunctive relief to prevent NBS from carrying out its written threat to defame PFS to its worldwide business partners. Finally, PFS requested that a declaratory judgment be issued declaring the 2012 EMAs it purportedly signed with NBS invalid.

NBS filed an answer and counterclaim against PFS, seeking an award of damages from PFS for its failure to perform under the contracts. In March 2017, NBS filed a motion for summary judgment, asserting that because it had not "materially breached" the 2012 EMAs, PFS's cancellation of the agreements was improper, thereby triggering Section 7(d) of those agreements and entitling NBS to the liquidated damages provided for therein. As such, NBS sought summary judgment on its counterclaim, along with dismissal of all PFS's claims against it. Thereafter, PFS filed a motion for partial summary judgment, seeking to have the trial court declare the liquidated damages clause incalculable as written, and, thus, unenforceable. In its brief to the trial court and to this court on appeal, PFS stated that "for the sake of argument only," it will assume that "the February 2012 Agreements are valid."

After a hearing, the trial court found as a matter of law that "Paragraph 7(d) of the 2012 [EMAs] is ambiguous." By judgment dated August 1, 2017, the trial court granted PFS's motion for partial summary judgment, severed and struck Paragraph 7(d) from the 2012 EMAs, and dismissed NBS's counterclaim that was based on the liquidated damages clause; the judgment was designated as final for purposes of appeal. By separate judgment, the trial court denied NBS's motion for summary judgment after finding that genuine issues of material fact remained.

NBS appealed and is now before this court asserting the following assignments of error:

1. The trial court was legally incorrect in finding clause 7(d) of the 2012 Agreements ambiguous as a matter of law simply because common business terms in the clause were not specifically defined, and further erred in failing to address the available extrinsic evidence to determine the intent of the parties so as to overcome any alleged ambiguity.
2. The trial court erred in striking the entirety of 7(d) from the 2012 Agreements. Striking a clause deemed ambiguous was not the proper remedy because a clause deemed ambiguous as a matter of law requires the trier of fact to address extrinsic evidence to determine the intent of the parties, or to instruct the trier of fact to simply construe the ambiguity against the drafter, not strike it altogether.
3. In the alternative, the trial court erred in striking the entirety of clause 7(d) from the 2012 Agreements because, at best, only the multiplier portion of the clause could be legally deemed ambiguous (an issue that Norsk/NBS conceded for purposes of the Motion for Summary Judgment.)
4. The trial court erred in deeming the calculations in support of Invoice No. 0113.2015 improper and denying Norsk/NBS recovery of the liquidated damages set forth therein.

LAW

"Appellate review of the granting of a motion for summary judgment is de novo , using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate." Smitko v. Gulf S. Shrimp, Inc. , 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755. "The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends." La.Code Civ.P. art. 966(A)(2). On de novo review, "there is no deference to the trial judge's legal findings, and we make an independent review of the evidence in determining whether there is no genuine issue of material fact and whether the mover is entitled to judgment as a matter of law under La.Code Civ.P. art. 966." Bridges v. Cepolk Corp. , 13-1051, p. 10 (La.App. 3 Cir. 2/12/14), 153 So.3d 1137, 1145, writ denied , 14-901 (La. 8/25/14), 147 So.3d 1117. "A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate." Smitko , 94 So.3d at 755.

According to La.Code Civ.P. art. 966(D)(1) :

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Recently, in Van Mol v. Beasley , 15-869, p. 4 (La.App. 3 Cir. 2/3/16), 184 So.3d 280, 284 (alteration in original), this court discussed the law regarding the interpretation of contracts, writing:

The Louisiana Supreme Court has stated:
"[W]hen a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law." Sims v. Mulhearn Funeral Home, Inc., 07-0054, p. 10 (La. 5/22/07), 956 So.2d 583, 590. "Interpretation of a contract is the determination of the common intent of the parties." La.Civ.Code art. 2045. The reasonable intention of the parties to a contract is to be sought by examining the words of the contract itself, and not assumed. Sims, 07-0054 at p. 7, 956 So.2d at 589 ; McConnell v. City of New Orleans, 35 La. Ann. 273 (1883). "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." La.Civ.Code art. 2046. Common intent is determined, therefore, in accordance with the general, ordinary, plain and popular meaning of the words used in the contract. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co., 93-0911, p. 5 (La. 1/14/94), 630 So.2d 759, 763.
Prejean v. Guillory, 10-740, pp. 6-7 (La. 7/2/10), 38 So.3d 274, 279.
To determine the meaning of words used in a contract, a court should give them their generally prevailing meaning.[ ] If a word is susceptible to different meanings, it must be interpreted as having the meaning that best conforms to the object of the contract.[ ] A provision susceptible of different meanings must be interpreted with a meaning that renders the provision effective, and not with one that renders it ineffective.[ ] Furthermore, each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.[ ]
St. Mary Operating Co. v. Guidry, 06-1495, p. 6 (La.App. 3 Cir. 4/4/07), 954 So.2d 397, 402, writ denied, 07-962 (La. 6/29/07), 959 So.2d 520, quoting Claitor v. Delahoussaye, 02-1632 (La.App. 1 Cir. 5/28/03), 858 So.2d 469, writ denied, 03-1820 (La. 10/17/03), 855 So.2d 764 (internal citations omitted).

"Interpretation of a contract and, specifically the issue of whether a contract is ambiguous, is a question of law properly determined at the summary judgment stage." Semco, LLC v. Grand Ltd. , 16-342, p. 43 (La.App. 5 Cir. 5/31/17), 221 So.3d 1004, 1035, writ denied, 17-1291 (La. 11/6/17), 229 So.3d 475. "In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party." La.Civ.Code art. 2056.

True liquidated damages represent an amount, arrived at in a good faith effort by the parties at the time of contracting, to reasonably estimate the monetary loss which will probably be sustained in the event of a breach.... No matter how clearly such penalty clauses are written, courts as a matter of public policy should decline to enforce an agreement which clearly is not one for true liquidated damages.

John Jay Esthetic Salon, Inc. v. Woods , 377 So.2d 1363, 1367 (La.App. 4 Cir. 1979), writ denied, 380 So.2d 78 (La.1980).

DISCUSSION

Based on the appellate standard of review, rather than discussing NBS's assignments of error individually, we will simply review the evidence submitted in favor of and in opposition to PFS's motion for partial summary judgment to determine whether it proved that it was entitled to judgment in its favor as a matter of law.

The purpose of the 2011 and 2012 EMAs was to aid PFS in marketing its products in the Russian Federation oil industry, as NBS had maintained an established presence in that market for approximately thirty years. The 2012 EMAs gave NBS "the exclusive right to distribute and sell" certain named PFS products to NBS's customers in the Russian Federation during the term of the agreement. The 2012 EMAs had an initial term of twenty-four months and was to automatically renew for successive five years terms. Paragraph 7(b) of the 2012 EMAs provided that "[e]ither party shall have the right to terminate this Agreement for breach of any material provision thereof by giving thirty (90) [sic][ ] days advance written notice to the breaching party, specifying the act or omission on which such termination is based." That provision further provided that "[i]f, under the circumstances present, it would appear that any breach is final, the complaining party may terminate this Agreement by giving notice to that effect." Paragraph 7(c) specified that if the EMAs were to be terminated for any "material breach," all confidential information acquired from either party "shall survive such termination and continue to be protected."

Thereafter, Paragraph 7(d), the "liquidated damages clause" at the heart of this appeal stated:

PFS shall pay compensation to NBS for the period of 3 years from the date of cancellation in case of cancellation of this Agreement by PFS without any form of material breach directly caused by NBS as specifically stated within this Agreement. The compensation shall be calculated as follows: the gross margin of NBS between the purchase and the sales price for all PFS Products at the date of cancellation of the Agreement minus sales cost (including transport cost) of NBS multiplied by the future realistic sales volume of all PFS Products being sold on regular basis in the Territory for a projected period of 3 years from the date of cancellation of the Agreement by PFS without NBS having caused any material breach.

The 2012 EMAs did not contain a reciprocal provision obligating NBS to pay liquidated damages to PFS should it cancel the agreement as specified above.

The 2012 EMAs contained a Severability Clause which provides that "[i]f any provision of this Agreement is held invalid under any law, that provision shall be deemed severable and its invalidity shall not affect the remainder of this Agreement, which shall continue in full force and effect."

PFS's Motion for Partial Summary Judgment

PFS's motion for partial summary judgment asserted that NBS's counterclaim should be dismissed because the liquidated damages clause upon which it was based was incalculable as written, and thus unenforceable. Exhibit D to PFS's motion for partial summary judgment was the June 12, 2017 affidavit of A. Anderson Hartiens, a Certified Public Accountant (CPA) and Certified Valuation Analyst who had previously been accepted as an expert in accounting and business valuations in Louisiana state and federal courts. According to his affidavit, CPA Hartiens reviewed the following documents: both 2012 EMAs; the invoice from NBS to PFS dated June 18, 2015; Mrs. Hoeydal's September 22, 2016 deposition; the June 12, 2017 affidavit of Boyce Donald Burts, III; the "Ukraine and Russia Sanctions." U.S. Department of State. U.S. Department of State, n.d. Web. 07 June 2017 (https://www.state.gov/e/eb/tfs/spi/ukrainerussia/ ); and the "Announcement of Expanded Treasury Sanctions within the Russian Financial Services, Energy and Defense or Related Materiel Sectors." U.S. Department of the Treasury, 12 Sept. 2014. Web. 07 June 2017 (https://www.treasury.gov/press-center/press-releases/Pages/jl2629.aspx ).

Mr. Hartiens' affidavit then provided:

7. Assuming the February 10, 2012 Contracts are valid, I offer my opinion regarding the liquidated damages calculation contained in Paragraph 7(d), which is identical in both Contracts....
8. In my opinion as a Certified Public Accountant, liquidated damages are incalculable using the formula provided in Paragraph 7(d). The terms in the formula are indefinite, undefined, and ambiguous.
9. The term "the purchase and the sales price for all PFS Products at the date of cancellation of the Agreement" does not provide a time period to determine what qualifies as the purchase and sales price at the date of cancellation. It is also unclear whether that term refers to sales with NORSK/NBS or all PFS sales."
10. "Future realistic sales volume" is also an undefined, abstract, ambiguous, and a speculative term that does not provide a clear method, basis, or formula for determining a result. Since no actual sales took place between the companies, it makes the term "future realistic sales volume" a number that cannot be calculated. One cannot multiply a gross margin dollar amount by a "volume" and obtain any reasonable result.
11. "Regular basis" is also an undefined, abstract, and ambiguous term that does not provide enough information for determining that amount.
12. Because of the undefined, abstract, ambiguous, and speculative terms in the formula provided in Paragraph 7(d) of the Contracts, the amount of liquidated damages under the provision cannot be calculated.
13. As to the Invoice 0113.2015 from NORSK/NBS to PFS dated June 18, 2015, which purports to reflect the amount calculated as liquidated damages by NORSK/NBS under Paragraph 7(d) of the Contracts, it is my opinion as a Certified Public Accountant that the calculations are unsupported and incorrect.
14. The Invoice 0113.2015, item one, related to the damage paragraph, provides the amount of $442,179.80 as the "gross margin between the purchase and the sales price for all PFS Products at the date of cancellation of the Agreement minus sales cost (including transport cost )". No documentation or supporting information in connection with their gross margin calculation was provided with the invoice. Subsequently, NORSK/NBS produced documentation supporting their calculation. NORSK/NBS did not deduct the sales cost as required by 7(d). The actual calculation for damages provided by NORSK/NBS incorrectly shows a gross margin amount, that omitted actual sales cost, and that was multiplied by a percentage. Paragraph 7(d) requires that the gross margin amount is multiplied times a "future realistic sales volume", not a percentage. One cannot multiply a gross margin dollar amount by a "future realistic sales volume" and obtain any reasonable result. NORSK/NBS's calculation for damages incorrectly used a percentage (150%) instead of a sales volume as the multiplier as required by the agreement.
15. The Invoice 0113.2015 does not state what time period NORSK/NBS considered in determining the "Gross margin between the purchase and sales price for all PFS Products at the date of cancellation of the Agreement minus sales cost (including transport cost)."
16. The Invoice 0113.2015 provides, under item 2, "future very realistic modestly estimated sales volume of all PFS Products being sold on regular basis in the Territory for a projected period of 3 years from the date of cancellation of the Agreement by PFS" as 150%, but the Invoice provides no information on how NORSK/NBS arrived at that percentage or amount.
17. It is my understanding from the Affidavit of Boyce Donald Burts, III and the deposition of Victoria Hoeydal that all invoices issued by PFS to NORSK/NBS made during the term of the contract were considered as test and well trials[.] There were no actual sales made for actual jobs since February 10, 2012, the date of the contract.
18. Because of the lack of actual sales, there is no "regular basis" from which to calculate "future realistic sales volume."
19. The sanctions imposed by the United States on the Russian Federation and certain industries and companies in the Russian Federation on September 12, 2014 would have a significant deleterious effect on "future realistic sales volume." The last invoice issued by PFS to NORSK/NBS was August 31, 2014.

Based on CPA Hartiens' affidavit and the remaining exhibits attached to its motion for partial summary judgment, PFS submitted that the liquidated damages clause provided an ambiguous formula that was incalculable. Citing John Jay , 377 So.2d 1363, PFS contended that because the "formula presented in Paragraph 7(d) does not provide a method to reasonably estimate the monetary loss which will probably be sustained in the event of a breach," the liquidated damages clause should be invalidated. PFS further submitted that because it was undisputed that Mr. Hoeydal drafted the liquidated damages clause at issue using a standard provision that NBS used in its contracts, any ambiguities in that clause should be interpreted against NBS. Finally, citing Lawrence v. Terral Seed, Inc. , 35,019 (La.App. 2 Cir. 9/26/01), 796 So.2d 115, writ denied , 01-3134 (La. 2/1/02), 808 So.2d 341, PFS contended in its brief to this court that where a contract provides a method to determine a price, such as the liquidated damages provision herein, but that "method is ambiguous" and the parties to the contract "have not agreed on how to implement such a method, the contractual provision is void for uncertainty." Accordingly, PFS sought judgment as a matter of law invalidating the liquidated damages clause in the 2012 EMAs and dismissing NBS's counterclaim at its cost.

NBS opposed PFS's motion for partial summary judgment based upon its contention that Paragraph 7(d) was not ambiguous and that it was "applied properly in calculating the liquidated damages set forth in Invoice No. 0113.2015." It submitted that the terms used in the liquidated damages clause were those customarily used in the business world, and thus, should be easily understood by a businessman such as Mr. Burts. NBS attached as Exhibit E to its opposition a June 26, 2017 affidavit executed by Mrs. Hoeydal wherein she explained:

2. I personally prepared Invoice No. 0113.2015, to PFS dated June 18, 2015, using the formula set forth in paragraph 7D of the February 10, 2012 Exclusive Marketing Agreement between NBS/Norsk Bronnservice and PFS.
3. The "sales cost" set forth in the formula consists solely of "transport cost," which I included in my calculations as evidenced by the invoices attached to my deposition taken September 22, 2016, as part of Exhibit 4, in globo.
4. The figure of 150% I used in the formula as the multiplier to represent "future very realistic modestly estimated sales volume" was derived from the fact that the prior sales of PFS products in the Russian Federation were sales for the purpose of field testing by wholly new prospective clients, all of which were successful. Therefore, all future sales would increase in volume for actual production use, which I modestly estimated to be 50% more than the volume used for testing, thus the figure of 150%.

Making reference to the aforementioned deposition of Mr. Hoeydal, NBS claimed that the liquidated damages clause was not drafted by Mr. Hoeydal alone, but rather, it was the result of negotiations between him and Mr. Burts. NBS asked the trial court to ignore CPA Hartiens' affidavit, suggesting that his opinion was speculative and conclusory and that "while he purport[ed] to have reviewed Mrs. Hoeydal's deposition, he glaringly left out her explanations relative to the calculation[s]" she performed. Citing La.Civ.Code art. 2012, NBS submitted that "Louisiana courts actually have a tradition of deferring to the parties' stipulations on damages where the contract is freely negotiated, regardless of whether they approximate actual damages suffered," such that the trial court should award it $662,839.72 in liquidated damages, as sought in its counterclaim.

At the July 17, 2017 hearing on the competing motions for summary judgment, counsel for NBS stated that his client would voluntarily withdraw its claim to have the liquated damages amount enhanced by the multiplier provision because it conceded that there were factual issues regarding the multiplier which would preclude disposition of the matter by summary judgment. Thus, NBS sought judgment in its favor on its counterclaim in the amount of $441,893.00.

At the conclusion of the hearing, after hearing the argument of counsel, the trial court stated that it found the liquidated damages clause to be "ambiguous" and it struck the clause from the 2012 EMAs. In so doing, it explained that "there are no definitions in regards to any of the words. There's no definition of how exactly to calculate what ... y'all are trying to come up with in the liquidated damages."

After having performed a de novo review of the evidence submitted in support of and in opposition to PFS's motion for partial summary judgment, we conclude that judgment was properly rendered in favor of PFS striking Paragraph 7(d) from the 2012 EMAs and dismissing NBS's counterclaim. We find that PFS properly supported its motion and met its burden of proving that the liquidated damages clause upon which it was based was incalculable as written, and thus unenforceable. Thereafter, the burden shifted to NBS to show that it would be able to prevail on its counterclaim based upon the liquidated damages clause. Rather than refuting the affidavit of CPA Hartiens with objective evidence, NBS relied on Mrs. Hoeydal's interpretation of the liquidated damages clause and her calculations of what damages were owed to it based upon that clause. According to her affidavit, Mrs. Hoeydal "modestly estimated" what "future sales" it would make of PFS's products.

Those subjective explanations are not competent evidence to oppose PFS's properly supported motion for summary judgment. After applying the evidence to the applicable jurisprudence, we conclude that PFS met its burden of proving as a matter of law that the liquidated damages clause was unsusceptible of calculation.

The parties included a severability clause in the 2012 EMAs, thus evidencing their intent that if any provision was "held invalid under any law, that provision shall be deemed severable." (Emphasis added.) Accordingly, we conclude that the liquidated damages clause was properly stricken from the 2012 EMAs. Thus, we find no merit to NBS's appeal, and we affirm the judgment granting PFS's motion for partial summary judgment.

NBS's Motion for Summary Judgment

NBS sought writs from the trial court's denial of its Motion for Summary Judgment. In its motion, NBS sought dismissal of PFS's claims against it along with a judgment on its counterclaim ordering PFS to pay it $662,269.70 in liquidated damages. Because the judgment which we affirm in this appeal dismissed NBS's counterclaim, NBS's writ application is moot and is hereby denied.

DECREE

The judgment rendered in favor of Professional Fluid Services, LLC and against Norsk Bronnservice AS and NBS Solutions AS, granting Professional Fluid Services, LLC's motion for partial summary judgment, striking Paragraph 7(d) from the 2012 Exclusive Marketing Agreements, and dismissing the counterclaim filed by Norsk Bronnservice AS and NBS Solutions AS, is affirmed. NBS's application for supervisory writs is denied. All costs of this appeal and writ are assessed against Norsk Bronnservice AS and NBS Solutions AS.

AFFIRMED . WRIT DENIED.

Conery, J., dissents and assigns reasons.

Conery, J., dissents and assigns reasons.

I respectfully dissent. In my view, this case is not appropriate for summary judgment.

The trial court and the majority found ambiguity in Section 7(d) of the contract based largely on the testimony of plaintiff-respondent's Certified Public Accountant. In doing so, in my view the trial court and the majority improperly weighed the evidence and made factual findings that are in dispute. I would find that there are genuine issues of material fact as to the intent of the parties in the interpretation of Section 7(d).

In considering a motion for summary judgment, the court cannot "consider the merits, make credibility determinations, evaluate testimony[,] or weigh evidence." Prop. Ins. Ass'n of La. v. Theriot , 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014 (quoting Suire v. Lafayette City-Parish Consol. Gov't , 04-1459, p. 11 (La. 4/12/05), 907 So.2d 37, 48 ). Additionally, although "summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor." Willis v. Medders , 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

I would reverse the summary judgment and remand the case to the trial court for a full trial on the merits.

      The defendants also sought writs from the denial of its motion for summary judgment, which were assigned docket number 17-827. Upon motion of the plaintiff, this court consolidated the appeal and the writ.

      The Russian Federation was formerly known as the Soviet Union.

      On that same date, PFS signed a separate EMA with NBS Solutions AS (NSA), another Norwegian corporation, that was virtually identical to the 2012 EMA it signed with NBS except that it named NSA as the distributor. For simplicity, we will collectively refer to both contracts as "the 2012 EMAs." In addition, because the parties generally treat NBS and NSA as one entity, we will do the same and refer to both collectively as "NBS" for purposes of this appeal.

      We will, likewise, assume that the 2012 EMAs are valid; however, we specifically make no finding as to authenticity and/or validity of those agreements.

      In designating the judgment as final and immediately appealable, the trial court noted that if the judgment was reversed, NBS's counterclaim could be tried with the remaining claims.

      NBS sought supervisory writs from the judgment denying its motion for summary judgment. Upon motion by PFS, this court consolidated the appeal and writ.

      See La.Civ.Code art. 2047.

      See La.Civ.Code art. 2048.

      See La.Civ.Code art. 2049.

      See La.Civ.Code art. 2050.

      According to Malvin Hoeydal, who signed the 2012 EMAs as CEO of NBS, the length of the termination clause in the 2011 EMA was shortened from ninety to thirty days. The September 26, 2016 deposition of Mr. Hoeydal was attached as Exhibit E to PFS's motion for summary judgment.

      See Exhibits A and B to PFS's motion for partial summary judgment.

      See Invoice No. 0113.2015 attached as Exhibit F to PFS's motion for partial summary judgment.

      Exhibit H to PFS's motion for partial summary judgment is the September 26, 2016 deposition of Mrs. Hoeydal.

      Exhibit C to PFS's motion for partial summary judgment is the June 12, 2017 affidavit of Boyce Donald Burts, III, who is sometimes referred to by the parties as "Donnie" Burts.

      In his affidavit, Mr. Hartiens stated that he was not offering any opinion on the validity of the "February 10, 2012 Contracts."

      PFS attached to its motion for partial summary judgment Exhibit G which consisted of the invoices NBS produced in support of Invoice 0113.2015.

      Louisiana Civil Code Article 2012 provides that "Stipulated damages may not be modified by the court unless they are so manifestly unreasonable as to be contrary to public policy."


source: Caselaw Access Project

license: Public Domain

text:
    Dorothy PENNINGTON v. OCHSNER CLINIC FOUNDATION, Fadi Hawawini, D.O., Brent Thibodeaux, Andrew Todd, M.D., Jim Aubry Jones, M.D. and Gretchen Ulfers, M.D.
    NO. 2017-CA-0647
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 25, 2018 Rehearing Denied May 8, 2018
    Kevin C. O'Bryon, O'BRYON & SCHNABEL, PLC, 1010 Common Street, Suite 1950, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT
    Harvey J. Godofsky, GODOFSKY & SCHROEDER, One Galleria Boulevard, Suite 700, Metairie, LA 70001, Don S. McKinney, ADAMS AND REESE LLP, 701 Poydras Street, Suite 4500, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Tiffany G. Chase )
    Judge Daniel L. Dysart In this medical malpractice action, plaintiff-appellant, Dorothy Pennington, appeals a judgment granting motions for directed verdicts in favor of defendants, Dr. Andrew Todd ("Dr. Todd"), Ochsner Clinic Foundation ("Ochsner"), Fadi Hawawini, D.O. ("Dr. Hawawini"), Brent Thibodeaux, Jim Aubry Jones, M.D. ("Dr. Jones"), and Gretchen Ulfers, M.D. ("Dr. Ulfers") (collectively, "defendants"), and dismissing all claims with prejudice.
    After viewing the facts in the light most favorable to the plaintiff, as is required for a directed verdict, we do not find that the evidence points so strongly and overwhelmingly in favor of the defendants, with the exception of Dr. Hawawini, or that reasonable minds could not arrive at a contrary verdict. Thus, we find that the trial court erred in granting directed verdict as to the defendants, with the exception of Dr. Hawawini, for whom plaintiff failed to establish both the standard of care and a breach thereof.
    Accordingly, and for the reasons set forth herein, we affirm the trial court's judgment in part, reverse it in part and remand for further proceedings.
    FACTS AND PROCEDURAL BACKGROUND
    According to the Petition for Damages, on February 17, 2011, Richard Smallwood fell at his home and sustained "bilateral patella tendon ruptures," for which he was admitted to the Ochsner-Baptist facility. After undergoing surgery by Dr. Todd to repair the ruptures, Mr. Smallwood "experienced a slightly complicated post-operative course" and was discharged on February 23, 2017 to the Ochsner Skilled Nursing Unit in Jefferson Parish. On February 26, 2017, Mr. Smallwood died at the skilled nursing unit, and an autopsy revealed that he had suffered a pulmonary embolism, secondary to deep vein thrombosis [DVT], which, according to the Petition, was "secondary to [his] bilateral knee surgery."
    The Petition alleges that Mr. Smallwood had been in "generally good health" prior to his injury, but while a patient at Ochsner-Baptist, "he was not administered appropriate prophylactic anti-coagulant medication, in violation of the standard of care." More specifically, it alleges:
    At Ochsner-Baptist, Jim Aubry Jones, M.D. and Gretchen Ulfers, M.D. were consulted for post-surgical medical management purposes, but failed to recognize the lack of, or direct initiation of, appropriate prophylactic anti-coagulant medication. Dr.Todd failed to order appropriate prophylactic anti-coagulant medication at Ochsner-Baptist and in connection with the patient's transfer to and admission at the Ochsner Skilled Nursing Unit facility.
    Named as defendants are Drs. Todd, Jones and Ulfers, as well as Dr. Hawawini, D.O., the director of Ochsner's skilled nursing unit, and nurse Thibodeaux, to whom Mr. Smallwood is alleged to have made complaints which were neglected. The Petition further alleges that, at the skilled nursing unit, Mr. "Smallwood was not assessed by Dr. Hawawini or any other physician."
    A jury trial commenced on April 3, 2017. At the conclusion of the plaintiff's case in chief, the defendants moved for directed verdicts on the ground that the plaintiff failed to meet her burden of proof of medical malpractice. The motions for directed verdicts were verbally granted by the trial court, which found as follows:
    ... based on the testimony that's been adduced as to Dr. Todd that there was a failure to establish the standard of care or a breach thereof. The Court is hereby granting a directed verdict as to Dr. Todd....
    * * * *
    It's [this] Court's finding that there has been a failure to establish the standard of care as to Dr. Jones, Dr. Ulfers, Dr. Hawawini. And certainly we had no testimony as to the standard of care of a nurse practitioner or how that was breached. The Court has to grant the motion for a directed verdict as to each defendant.
    The trial court further explained its finding by stating:
    ... the problem is you can't just do a broad brush against everybody unless you can show that that person breached the standard of care. You can't just say well, everybody messed up. No. You have to show that that person breached the standard of care if you're going to hold them liable.
    A written judgment was rendered, memorializing the trial court's verbal judgment on April 11, 2017. The plaintiff timely filed this appeal.
    Dr. Todd answered the appeal, seeking relief only in the event that this Court reverses the trial court's judgment. In that event, Dr. Todd seeks a finding from this Court that the plaintiff failed to properly qualify her expert physician who, thus, lacked the specific capacity to render opinions in this case. An answer to the appeal was also filed by Ochsner, Dr. Hawawini, Mr. Thibodeaux, Dr. Jones, and Dr. Ulfers, who seek similar relief as that sought by Dr. Todd; namely, a finding that the trial court erred in accepting, as expert testimony, the opinions of a general surgeon in this matter. They contend that the plaintiff's expert was not qualified to offer opinions as to specialists in hospital medicine or as to treatment received in a rehabilitation hospital.
    Motions for Directed Verdict, Generally
    La. C.C.P. art. 1810 authorizes a motion for directed verdict and requires that such a motion be made at the close of the evidence offered by the opposing party. See Price v. Law Firm of Alex O. Lewis, III & Assocs. , 04-0806, p. 2 (La. App. 4 Cir. 3/2/05), 898 So.2d 608, 610 ; Jenkins v. State ex rel. Dep't of Transp. & Dev. , 06-1804, p. 5 (La. App. 1 Cir. 8/19/08), 993 So.2d 749, 756. While this Court, in Duvio v. Specialty Pools Co., LLC , 15-0423, p. 28 (La. App. 4 Cir. 6/16/16), 216 So.3d 999, 1019, reiterated the established general rule that "a trial court "has much discretion in determining whether or not to grant a motion for directed verdict," we recognize that "[a] directed verdict is appropriate only when the evidence overwhelmingly points to one conclusion." Roberson v. Aug. , 01-1055, p. 4 (La. App. 4 Cir. 5/29/02), 820 So.2d 620, 624 (emphasis added). On appeal, "the standard of review for legal sufficiency of the evidence challenges (a question of law), such as those presented by motions for directed verdicts, is de novo ." Provosty , 12-1015, p. 31, 119 So.3d at 32. See also , Hall v. Folger Coffee Co ., 03-1734, p. 10 (La. 4/14/04), 874 So.2d 90, 99 (while "the manifest error standard of review applies to all factual findings, including sufficiency of the evidence challenges, ... legal sufficiency of the evidence challenges, such as those presented by ... motions for directed verdict ... are subject to the de novo standard of review that is used for all legal issues.")(emphasis in the original).
    Our jurisprudence as to the propriety of granting a motion for directed verdict is well-settled. As we explained in Wendel v. Travelers Ins. Co. , 14-0002, pp. 3-4 (La. App. 4 Cir. 10/8/14), 151 So.3d 828, 832-3, writ denied , 14-2346 (La. 2/6/15), 158 So.3d 818, quoting Simon v. American Crescent Elevator Co ., 99-2058, p. 14 (La. App. 4 Cir. 4/26/00), 767 So.2d 64, 73-4, when a trial court considers "the evidence in the light most favorable to the party opposed to the motion, [and] finds that it points so strongly and overwhelmingly in favor of the moving party that reasonable minds could not arrive at a contrary verdict on that issue," the directed verdict should be granted. See also , Provosty v. ARC Const., LLC , 12-1015, p. 31 (La. App. 4 Cir. 3/20/13), 119 So.3d 23, 44 ("[t]he question to be asked by the court is not whether mover proved its case by a preponderance of the evidence, but rather, upon reviewing the evidence submitted, the court could conclude that reasonable persons could not have reached a verdict in favor of the mover's opponent.").
    Conversely, "[i]f there is substantial evidence opposed to the motion, i.e. , evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the case submitted to the jury." Everhardt v. Louisiana Dep't of Transp. & Dev. , 07-0981, p. 13 (La. App. 4 Cir. 2/20/08), 978 So.2d 1036, 1047.
    The Everhardt Court explained the role of an appellate court in reviewing an appeal of a directed verdict:
    The standard of review on appeal of a directed verdict is whether reasonable persons could not reach a contrary verdict under the evidence. The question to be asked by the appellate court is not whether a plaintiff proved his case by a preponderance of the evidence, but rather, whether upon reviewing the evidence submitted, the court could conclude that reasonable persons could not have reached a verdict in favor of the plaintiff. The appellate court must also determine if the record supports the granting of a directed verdict, based not on a credibility determination (a factual issue), but on a sufficiency-of-evidence determination (a question of law). A directed verdict must be sustained on appeal where the reviewing court would find a jury verdict in favor of the party opposing the motion to be manifestly erroneous had the trial judge allowed the case to go to the jury. The court of appeal considers the evidence under the substantive law applicable to the nonmoving party's claim.
    Id. , 07-0981, pp. 13-14, 978 So.2d at 1047 (citations omitted).
    We have conducted a de novo review of the record before us and find that it does not support the trial court's grant of the motions for directed verdicts, with the exception of the directed verdict in favor of Dr. Hawawini. Our conclusion is based not on a credibility determination, which would present factual issues, but on a sufficiency of evidence determination, a question of law.

      The Petition was filed by Dorothy Pennington, Mr. Smallwood's sister and surviving heir.

   DISCUSSION

Standard of care and breaches thereof

The Louisiana Medical Malpractice Act defines "malpractice," in pertinent part, as:

... any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient ....

La. R.S. 40:1231.1 A(13). The burden of proof in a medical malpractice case rests with a claimant who must prove by a preponderance of the evidence the three elements set forth in La. R.S. 9:2794 A:

First, the plaintiff must establish "[t]he degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances." La. R.S. 9:2794 A(1). Notably, "where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty." Id. Second, the plaintiff must establish that "the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill." La. R.S. 9:2794 A(2). Lastly, the plaintiff must prove that "as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred." La. R.S. 9:2794 A(3).

Minor v. Bryan , 16-0323, pp. 8-9 (La. App. 4 Cir. 12/15/16), 206 So.3d 1070, 1076, writ denied , 17-0336 (La. 4/7/17), 218 So.3d 115. We summarized this burden of proof as follows: "A medical malpractice plaintiff, therefore, 'must establish the standard of care applicable to the charged physician , a violation by the physician of that standard of care, and a causal connection between the physician's alleged negligence and the plaintiff's injuries resulting therefrom.' " Id. , 16-0323, p. 9, 206 So.3d at 1076, quoting Pfiffner v. Correa , 94-0924, p. 8 (La. 10/17/94), 643 So.2d 1228, 1233 (emphasis in the original). See also , Samaha v. Rau , 07-1726, pp. 5-6 (La. 2/26/08), 977 So.2d 880, 884.

As a general rule, expert testimony is required "to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony." Schultz v. Guoth , 10-0343, p. 7 (La. 1/19/11), 57 So.3d 1002, 1007 ; See also , Samaha , 07-1726, pp. 5-6, 977 So.2d at 884, citing Pfiffner v. Correa , 1994-0924, 1994-0963, 1994-0992 (La.10/17/94), 643 So.2d 1228. In most cases, though, "because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794's requirements without medical experts ...." Battaglia v. Chalmette Med. Ctr., Inc ., 12-0339, p. 4 (La. App. 4 Cir. 10/17/12), 126 So.3d 524, 526, quoting Pfiffner , 94-0924, p. 9, 643 So.2d at 1234.

In this matter, the plaintiff contends that the expert retained on her behalf, Dr. Leo Frangipane, Jr., a board certified general surgeon, established the standard of care applicable to all of the defendants in this case and a breach by the defendants of that standard of care. The defendants, however, maintain that, as a general surgeon, Dr. Frangipane is not qualified to render an opinion as to the standards of care of any the defendants, insofar as he has never trained for or practiced in any of their respective fields. Over the objection of the defendants, the trial court accepted Dr. Frangipane as an expert in the field of general surgery and medicine. As noted, in their answers to the appeal, the defendants contend that the trial court erred in accepting Dr. Frangipane as an expert and allowing him to testify as to the standard of care of their specialties (Dr. Todd, as an orthopedic surgeon; Drs. Hawawini, Ulfers and Jones, as specialists in hospital medicine; Mr. Thibodeaux, as a nurse practitioner; and both Dr. Hawawini and Mr. Thibodeaux, in their capacity as health care providers in a rehabilitation hospital).

The Louisiana Supreme Court has indicated that, in a medical malpractice action, a "district court is accorded broad discretion in determining whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert." Johnson v. Morehouse Gen. Hosp. , 10-0387, p. 17 (La. 5/10/11), 63 So.3d 87, 99. We have thoroughly reviewed the record before us, and although Dr. Frangipane, as a general surgeon, clearly does not practice in the precise medical fields of the various defendants, he nevertheless was qualified to testify in this case. We thus find no error in the trial court's discretion in qualifying Dr. Frangipane as an expert in this matter and allowing him to testify about the standard of care and breaches thereof. However, we find that the trial court erred in granting directed verdicts in favor of the defendants (with the exception of Dr. Hawawini). As is our task and responsibility on appeal, we have reviewed the evidence submitted, and in particular, the testimony of Dr. Frangipane, and we do not find "that reasonable persons could not have reached a verdict in favor of the plaintiff."

It is well-settled that "[w]here the alleged acts of negligence raise issues peculiar to the particular specialty involved, then only physicians in that specialty may offer evidence of the applicable standard of care." Broussard v. Andersson , 05-0006, pp. 6-7 (La. App. 4 Cir. 11/30/05), 921 So.2d 128, 132, citing McDaniel v. Reed , 00-2529, p. 3 (La. App. 4 Cir. 10/3/01), 798 So.2d 1121, 1123. Furthermore, this Court has indicated that:

... [I]t is a specialist's knowledge of the requisite subject matter, rather than the specialty within which the specialist practices, which determines whether a specialist may testify as to the degree of care which should be exercised. A particular specialist's knowledge of the subject matter on which he is to offer testimony is determined on a case by case basis.

Howard v. Vincent , 11-0912, p. 6 (La. App. 4 Cir. 3/28/12), 88 So.3d 1219, 1222. See also McDaniel , 00-2529, p. 3, 798 So.2d at 1123. Moreover, "where medical disciplines overlap, it is appropriate to allow a specialist in one field to give expert testimony as to the standard of care applicable to areas of the practice of medicine common to both disciplines." Pertuit v. Jefferson Par. Hosp. Serv. Dist. No. 2 , 14-752 (La. App. 5 Cir. 5/14/15), 170 So.3d 1106, 1110, writ denied , 15-1176 (La. 9/18/15), 178 So.3d 152.

Our jurisprudence further indicates that "[g]enerally, the fact that a medical doctor is not a specialist in a particular field applies only to the effect on the weight to be given such testimony, not to its admissibility." Hubbard v. State , 02-1654, pp. 14-15 (La. App. 4 Cir. 8/13/03), 852 So.2d 1097, 1104-05, quoting Hunter v. Bossier Medical Center , 31,026, p. 14 (La. App. 2 Cir. 9/25/98), 718 So.2d 636, 644. See also , McDaniel , 00-2529, pp. 5-6, 798 So.2d at 1124 ; Marshall v. Boydston , 09-1137, p. 5 (La. App. 3 Cir. 3/17/10), 33 So.3d 438, 443.

Case law clearly allows for physicians to testify in fields other than their own, when there is sufficient knowledge of the requisite subject matter. In Soteropulos v. Schmidt , 556 So.2d 276 (La. App. 4 Cir.1990), for example, the plaintiff underwent a below-knee amputation, performed by two cardiovascular and vascular surgeons. An orthopedic surgeon was permitted to give expert opinion regarding the standard of care of the vascular surgeon. Indeed, the orthopedic surgeon testified:

... "the standard should be the same. At time of closure, there should be no hot spots and if this requires rasping and bevelling, that is what should be done." This applies to cardiovascular, orthopedic and general surgeons, i.e. "any surgeon that takes this as the obligation to complete an amputation to heal."

Id. , 556 So.2d at 279.

Similarly, in Smith v. Juneau , 95-0724 (La. App. 4 Cir. 4/9/97), 692 So.2d 1365, 1371, the plaintiff was severely injured in a single car accident. After several surgeries, a ten day stay in intensive care and transfer to another hospital, it was discovered that the plaintiff had a significant bedsore, for which he underwent numerous surgeries and was left disfigured. In his suit against his treating physicians, and in response to a writ application, the Louisiana Supreme Court indicated that a physician who practiced in the area of physical medicine and rehabilitation was to be allowed to testify in a trial. Smith v. Juneau , 94-2440 (La. 9/29/94), 642 So.2d 860. At trial, he testified as to the standard of care of the orthopedic surgeon and indicated that he "did not use reasonable diligence in caring for plaintiff's skin while plaintiff was hospitalized ...." and further testified that the orthopedic surgeon "should have ordered plaintiff's skin checked daily and if plaintiff was lying in bed, he should have issued orders to turn the patient every two hours from the time he came out of surgery ... until his discharge." Smith , 692 So.2d at 1371. Importantly, the Court found:

Considering that the record adequately supports a finding that the issue of skin care is not peculiar to any one specialty, any qualified physician could testify concerning the standard of care to be exercised by an orthopedic surgeon caring for a patient. Further, Dr. McCready did not testify concerning the standard of care in an area peculiar to the specialty of orthopedic surgeons, but only the standard of care as to skin care. Consequently, the trial court did not err in allowing Dr. McCready's testimony on this issue.

Smith , 95-0724, pp. 15-16, 692 So.2d at 1373. See also , Slavich v. Knox , 99-1540 (La. App. 4 Cir. 12/15/99), 750 So.2d 301, 304 (no error found in allowing a general surgeon to testify as to the standard of care of an internist, citing Pfiffner v. Correa , 643 So.2d 1228 (La.1994), for the principle that "there is no requirement that a physician have the same specialty as defendant physician in cases where the medical and fact issues are such that a jury can perceive negligence in the physician's conduct.");

Kieffer v. Plunkett-Kuspa , 13-499, p. 7 (La. App. 5 Cir. 3/26/14), 138 So.3d 682, 685 (no error found in allowing a board certified neurologist to testify as to the standard of care of a primary care physician, testifying: "I don't think the standard of care for primary care physicians are any different than anybody else when faced with an illness of this type with the potential implications .... [T]he internist should have taken further action such as a lumbar puncture or admit her to the hospital for evaluation.").

In the instant matter, Dr. Frangipane testified that, as a general and vascular physician, his practice encompasses the diagnosis and treatment of DVT. He indicated that "[a]ny general surgeon that [sic] is very active will run across that from time to time." When questioned as to whether "the risk that DVT can result in a pulmonary embolism and a patient's death, is ... something that's recognized in the field of medicine," Dr. Frangipane testified that it is "[v]ery well recognized."

In Dr. Frangipane's opinion, Mr. Smallwood died as a result of medical malpractice; he stated that Mr. Smallwood was at an elevated risk of developing DVT and the defendants, collectively, failed to "accurately diagnose the ongoing [DVT]," failed to perform certain tests to determine whether Mr. Smallwood was experiencing DVT and thus, their actions "fell below the standard of care that should have been or that was in place."

Dr. Frangipane reviewed guidelines from various publications which set forth risk factors for DVT, but acknowledged that there is "not really" any guideline "that is specific to the particular surgical procedure that Mr. Smallwood underwent." He also acknowledged that prophylactic measures were taken for Mr. Smallwood's post-operative care, designed to reduce the risk of his developing DVT. Those include the use of a TED stocking after surgery, SCD's (sequential compression devices, which Dr. Frangipane testified are "a kind of stocking that gently milks the leg back in which the venous circulation returns guided by the SCD ... back to the heart"), and the use of aspirin. However, Dr. Frangipane opined that the defendants failed to take further appropriate measures to avoid DVT. According to Dr. Frangipane, these measures were not sufficient. To the contrary, Dr. Frangipane testified that Mr. Smallwood had an increasing risk of developing a post-surgical DVT, but he did not receive pharmacologic prophylaxis, such as blood thinners. According to Dr. Frangipane, "the risks of giving prophylaxis are far less than the risks of not giving prophylaxis."

Similar to the testimony of the physicians at issue in Soteropulos , Smith , and Kieffer , according to Dr. Frangipane, the standard of care with respect to the diagnosis and treatment of DVT is the same for all specialties; he testified as follows:

Q. With respect to post-surgical treatment of a patient regarding DVT prophylaxis and detention, is there any difference in standard of care whether you're a surgeon or hospitalist or a medical director?
A. The difference is the same for all of us. We look at DVT, or should anyway, the same way. We're all trying to create prevention.

According to Dr. Frangipane, the failure of the defendants, individually and collectively, to undertake the additional measure of administering pharmacologic prophylaxis to Mr. Smallwood equated to breaches of the standards of care for each of the defendants.

Dr. Frangipane's criticism of Dr. Hawawini, however, was imprecise and he did not indicate that Dr. Hawawini had any direct involvement in Mr. Smallwood's care, nor that, as a medical director, he should have been involved in the care of individual patients. To the contrary, Dr. Frangipane simply testified as follows:

I suspect that even though I am not a medical director, one of the things that I have seen in patients in whom I have given the care over to a physician such as this while they're recovering from surgery, every one [sic] should know the treatment and the ability to care for patients at higher risk for DVT. (emphasis added).

Because the record is void of any evidence regarding the standard of care of a director of skilled nursing unit and void of any testimony regarding a breach on Dr. Hawawini's part, we find that the trial court correctly granted a directed verdict in favor of Dr. Hawawini and we affirm that portion of the judgment.

Having determined that the trial court erred in granting, in part, directed verdicts in favor of the defendants based on the evidence submitted with respect to the first two elements of a medical malpractice claim, we now turn to the third element-a causal connection between the defendants' alleged negligence and Mr. Smallwood's "injuries resulting therefrom."

Causal connection

This Court has consistently held that, in a medical malpractice case, a plaintiff must show that the injuries complained of were proximately caused by a breach of the standard of care (or, in other words, that a breach was the cause in fact of the injury alleged). See Gaffney v. Giles , 14-0384, p. 19 (La. App. 4 Cir. 4/29/15), 165 So.3d 1100, 1111 ; Tucker v. Sullivan , 04-1715, p. 5 (La. App. 4 Cir. 7/27/05), 913 So.2d 857, 860 ; Sandifer v. Wise , 00-0293, p. 6 (La. App. 4 Cir. 2/7/01), 780 So.2d 1099, 1102 ("the plaintiff must ... demonstrate by a preponderance of the evidence a causal nexus between the defendant's fault and the injury alleged"). Moreover, as the Supreme Court explained in Pfiffner , 94-0924 643 So.2d at 1233 :

In a medical malpractice action, the plaintiff must show that as a result of the defendant's negligence he suffered injuries that would not otherwise have occurred. Plaintiff need not show that defendant's conduct was the only cause of the harm nor must he negate all other possibilities. Rather, he must show by a preponderance of the evidence, or more probably than not, that he suffered the injury because of defendant's conduct.

In this matter, as we previously noted, Dr. Frangipane was critical of the defendants' treatment of Mr. Smallwood, and more particularly, with their alleged failure to provide what he believed were additional measures to prevent DVT. As to the issue of causation, Dr. Frangipane testified as follows:

Q. Having gone through the details of the treatment that Mr. Smallwood went through both at Baptist and the SNF, skilled nursing facility, are you still of the opinion that he should have been administered a pharmacologic DVT prophylaxis?
A. I still hold that opinion, sir; yes.
Q. Are you of the opinion that it was a breach of the standard of care for the treating physicians not to have prescribed that?
A. I agree with that.
Q. And that that breach was responsible, in turn, for Mr. Smallwood's passing away from pulmonary embolism ?
A. I continue to voice that opinion.

We believe that this exchange, at a minimum, meets the plaintiff's burden in establishing a causal connection between the defendants' alleged negligence and Mr. Smallwood's demise. That is, this testimony supports a reasonable conclusion that more probably than not, Mr. Smallwood "suffered the injury because of defendant[s'] conduct." Pfiffner , 94-0924, p. 8, 643 So.2d at 1233.

CONCLUSION

Based on the foregoing, we find that the trial court correctly granted the motion for a directed verdict in favor of Dr. Hawawini. As to the remaining defendants, however, we find that the trial court improperly granted their motions for directed verdict. We, therefore, affirm the trial court's judgment as to Dr. Hawawini, reverse the trial court's judgment as to the remaining defendants and remand this matter for further proceedings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

      The Louisiana Supreme Court, in Pfiffner , explained this concept as follows:
      Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body, from which a lay person can infer negligence .... Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which require no expert testimony to demonstrate the physician's fault.
      Id. , 94-0924, p. 9, 643 So.2d at 1233-34.

      In his testimony, Dr. Frangipane testified that he is board certified in general surgery and also that he is "grandfathered in vascular surgery."

      Because we have found that the trial court correctly granted a directed verdict in Dr. Hawawini's favor, our reference to "the defendants" for the remainder of this opinion is a reference to the remaining defendants, collectively.

      Our finding is not to be construed as a determination of the plaintiffs' ultimate success following a complete trial of this matter. We only find that the evidence was sufficient to warrant a denial of the motions for directed verdict.

      Minor , 16-0323, p. 9, 206 So.3d at 1076.

      Again, we express no opinion as to whether, after a full trial on the merits, a jury would find in favor of the plaintiff. We simply find this testimony to be sufficient evidence to support the denial of the motions for directed verdict and the submission of the case to the jury.


author: JUDGE SANDRA CABRINA JENKINS

text:
    Valencia LEWIS v. JAZZ CASINO COMPANY, L.L.C.
    NO. 2017-CA-0935
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 26, 2018
    Brian King, Jason Giles, THE KING FIRM, LLC, 2912 Canal Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    Jeffrey A. Raines, Robert H. Murphy, MURPHY ROGERS SLOSS & GAMBEL, 701 Poydras Street, One Shell Square, Suite 400, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Tiffany G. Chase, and Judge Dennis R. Bagneris, Sr., Pro Tempore )
   JUDGE SANDRA CABRINA JENKINS

In this slip-and-fall case, plaintiff Valencia Lewis appeals a judgment from the trial court granting summary judgment in favor of defendant Jazz Casino Company, L.L.C. ("Jazz Casino"). For the reasons that follow, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On April 26, 2016, Ms. Lewis filed suit against Jazz Casino, the owner and operator of Harrah's casino ("Harrah's") in New Orleans. In her petition, Ms. Lewis alleges that on August 1, 2015, she was walking through Harrah's when she slipped and fell on some food on the floor. The petition asserts that Ms. Lewis sustained personal injuries caused by the negligent acts of Jazz Casino, which include, inter alia : (1) failure to properly maintain the casino premises; (2) failure to provide a reasonably safe surface for customers to walk on; (3) failure to provide any warnings of the dangerous condition; and (4) failure to inspect the area of the casino in which Ms. Lewis was injured.

On June 8, 2016, Jazz Casino filed an answer. Thereafter, the parties propounded interrogatories and requests for production of documents, and Ms. Lewis's deposition was taken. The record does not show that the trial court set a discovery cut-off date.

On March 2, 2017, Jazz Casino filed a motion for summary judgment arguing that there was an absence of factual support for several elements essential to Ms. Lewis's claim under Louisiana's Merchant Liability Statute, La. R.S. 9:2800.6, including whether: (1) the food on the floor presented an unreasonable risk of harm that was reasonably foreseeable; (2) Jazz Casino created the risk of harm or had actual or constructive notice of the condition prior to Ms. Lewis's fall; and (3) Jazz Casino failed to exercise reasonable care to keep the aisles and walkways free of hazardous conditions. Jazz Casino contends that it is entitled to summary judgment because Ms. Lewis cannot prove all of the elements of her cause of action.

Ms. Lewis filed an opposition memorandum arguing that she has sufficient direct and circumstantial evidence to satisfy her burden of proving the elements of La. R.S. 9:2800.6 and, at a minimum, to establish numerous genuine issues of material fact to preclude summary judgment.

In support of its motion for summary judgment, Jazz Casino submitted excerpts from the deposition of Ms. Lewis, affidavits of Harrah's employees, safety manuals and an employee handbook, and Ms. Lewis's answers to interrogatories. In opposition to the motion, Ms. Lewis submitted excerpts from her deposition, affidavits from her husband and son, statements from Harrah's employees, and Ms. Lewis's discovery responses. The record and these exhibits establish the following facts concerning the incident:

Ms. Lewis testified in her deposition that, prior to the accident, she, her son, her husband, and her mother were leaving the slot machine area of the casino, and heading to the exit through the walkway between Harrah's buffet restaurant and the Masquerade lounge. She recalled that there "wasn't a whole lot of light" in the area. She said that while she stopped to look for her keys in her purse, her mother and husband continued walking 10 to 15 feet in front of her and her son. She noticed a Harrah's employee walking near her. She said that she slipped on the floor, and her son caught her as she fell. Ms. Lewis stated that she did not see any substance on the ground before she fell. She said that, after her fall, she saw "little white stuff" on the floor. According to Ms. Lewis, the nearby Harrah's employee, who stopped to help her, told her that she had slipped on a "smushed grape." She said that the Harrah's employee called his supervisor over, who told Ms. Lewis to step onto the nearby carpet to wipe off her feet. Ms. Lewis testified that she did not know how the grape got on the floor, did not know how long the grape was on the floor, and did not know if a Harrah's employee put the grape on the floor.

Ms. Lewis's son, Huebert Lewis II ("Huebert II"), submitted an affidavit in which he corroborated Ms. Lewis's testimony, including her statement that the Harrah's employee said that she had slipped on a "smushed grape." He further stated that after his mother slipped, he looked down and saw "some type of smashed food" on the floor. He also testified that after his mother wiped off her shoe on the carpet, he again saw "some type of food on the carpet and on her shoe." According to Huebert II, his mother "pointed to the food substance on the floor to show the supervisor."

Ms. Lewis's husband, Huebert Lewis Sr. ("Huebert Sr."), also submitted an affidavit in which he corroborated the testimony of his wife and son that the Harrah's employee said the substance on the floor looked like a "smushed grape." He also stated that, after his wife fell, he "looked down and saw some type of food substance on the marble floor" and the carpet.

Standford Parkman, a beverage employee at Harrah's who saw Ms. Lewis slip and fall, completed an Employee Statement in which he stated that when he went over to help Ms. Lewis, he did not observe "any fruit on the ground" or "any other condition that would cause the slip."

Tori Mayshack, a beverage supervisor at Harrah's, completed a Voluntary Statement in which she stated that, at 3:00 a.m. on August 1, 2015, Mr. Parkman called her on the radio. She said that when she arrived between the Harrah's buffet and the Masquerade lounge, Mr. Parkman told her that a guest had slipped and fallen. Ms. Mayshack stated that Ms. Lewis told her that she had slipped on "something" on the floor, and pointed to a substance. Ms. Mayshack described the substance as "like melted cheese."

In discovery, Jazz Casino produced a surveillance videotape of the incident which starts one minute prior to Ms. Lewis's slip and fall, and ends four minutes after the incident. The videotape starts at the 2:49:00 a.m. mark and shows Ms. Lewis slipping and falling on the tile floor in front of Harrah's buffet around the 2:50:03 a.m. mark. The video also shows Mr. Parkman stopping to help Ms. Lewis, at which time her son, Huebert II, and Mr. Parkman huddle around an area of the floor to see what caused her accident. The video further shows Ms. Lewis's husband and mother walking back to Ms. Lewis to examine the floor. In the video, no foreign substance is visible on the casino floor.

The trial court originally set the motion for summary judgment for hearing on April 28, 2017. On April 12, 2017, Ms. Lewis propounded a second set of requests for production of documents in which she requested additional surveillance video between 10:30 p.m. on July 31, 2015 through 7:00 a.m. on August 1, 2015. Ms. Lewis also requested cleaning, maintenance, and inspection logs of the area between Harrah's buffet and the Masquerade lounge.

The trial court continued the hearing on the motion for summary judgment without date pending Jazz Casino's responses to Ms. Lewis's second set of document requests. In response to the second discovery requests, Jazz Casino stated that it had no other videotape, and had no such logs.

On August 4, 2017, the trial court held a hearing on Jazz Casino's motion for summary judgment, and on August 15, 2017, the trial court signed a judgment granting Jazz Casino's motion, and dismissing Ms. Lewis's cause of action. Ms. Lewis then sought a timely devolutive appeal of the trial court's judgment.

DISCUSSION

Standard of Review

We apply a de novo standard of review in examining a trial court's ruling on summary judgment. Hare v. Paleo Data, Inc. , 11-1034, p. 9 (La. App. 4 Cir. 4/4/12), 89 So.3d 380, 387. Accordingly, we use the same criteria that govern a trial court's consideration of whether summary judgment is appropriate. Id. "[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubts must be resolved in the opponent's favor. Fiveash v. Pat O'Brien's Bar, Inc. , 15-1230, p. 7 (La. App. 4 Cir. 9/14/16), 201 So.3d 912, 917. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Id.

La. C.C.P. art. 966(D)(1) governs the mover's burden on a motion for summary judgment:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

La. R.S. 9:2800.6 : Louisiana Merchant Liability Statute

Ms. Lewis's petition asserts that she slipped and fell on some food on the floor of Jazz Casino's premises, and that it is liable to her for failure to properly maintain the casino grounds. Her action, therefore, is controlled by La. R.S. 9:2800.6, Louisiana's Merchant Liability Statute, which governs negligence claims brought against merchants for accidents caused by a condition existing on or in the merchant's premises.

The statute defines a merchant as "one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business." La. R.S. 9:2800.6(C)(2). We, and all other Louisiana circuit courts, have applied the Merchant Liability Statute to the facts of slip and fall accidents occurring in casinos. See, e.g., Thomas v. Caesars Entm't Operating Co., 12-1202 (La. App. 4 Cir. 1/23/13), 106 So.3d 1279 ; Willig v. Pinnacle Entm't, Inc. , 15-1998 (La. App. 1 Cir. 9/16/16), 202 So.3d 1169 ; Rowell v. Hollywood Casino Shreveport , 43,306 (La. App. 2 Cir. 9/24/08), 996 So.2d 476 ; Neal v. Players Lake Charles, LLC , 01-0244 (La. App. 3 Cir. 6/6/01), 787 So.2d 1213 ; Richardson v. Louisiana-1 Gaming , 10-262 (La. App. 5 Cir. 12/14/10), 55 So.3d 893.

The statute provides that a "merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition." La. R.S. 9:2800.6(A). This duty "includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage." Id.

La. R.S. 9:2800.6(B) lists three specific elements of a claim under the Merchant Liability Statute:

B. 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.

The trial court, in granting summary judgment, concluded that Ms. Lewis failed to prove the second element, i.e., that Jazz Casino had "constructive notice of the condition which caused the damage, prior to the occurrence." Because the plaintiff has the burden of proving all three elements of the Merchant Liability Statute, "the failure to prove any is fatal to the claimant's cause of action." White v. Wal-Mart Stores, Inc., 97-0393, p. 7 (La. 9/9/97), 699 So.2d 1081, 1086.

As discussed in White , the statutory definition of "constructive notice" is clear and unambiguous. Id. , 97-0393, p. 4, 699 So.2d at 1084. " 'Constructive notice means' the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." La. R.S. 9:2800.9(C)(1). Thus, there is a "temporal" element included. White , 97-0393, p. 4, 699 So.2d at 1084. This element has two components. First, the plaintiff must show that the condition existed for "some time period" prior to the fall. Id. , 97-0393, p. 4, 699 So.2d at 1084-85. Second, the plaintiff must prove that this period of time was "sufficient to place the merchant defendant on notice" of the existence of the condition. Id. , 97-0393, p. 1, 699 So.2d at 1082.

Here, the trial court found that summary judgment was proper because Ms. Lewis had not satisfied her burden of proving the temporal component of constructive notice, i.e., that the condition existed for "some time period" prior to her fall.

The Supreme Court has described the temporal requirement of constructive notice as follows:

Though there is no bright line time period, a claimant must show that "the condition existed for such a period of time that the defendant merchant would have discovered its existence through the exercise or ordinary care...." Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period . A claimant who simply shows that the condition existed without an additional showing the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. This is not an impossible burden.

Kennedy v. Wal-Mart Stores, Inc. , 98-1939 (La. 4/13/99), 733 So.2d 1188, 1190-91 (emphasis added) (citing White, 97-0393, pp. 4-5, 699 So.2d at 1190-91).

According to the Supreme Court, the plaintiff must make a "positive showing" that the condition "did exist for some period of time prior to [the] fall." Babin v. Winn-Dixie Louisiana, Inc. , 00-0078, p. 6 (La. 6/30/00), 764 So.2d 37, 40 (citing White , 97-0393, p. 4, 699 So.2d at 1084 ). Thus, "[t]he statute does not allow for the inference of constructive notice absent some showing of this temporal element." White , 97-0393, p. 4, 699 So.2d at 1084. "Because it is the claimant's burden to prove [the spill's] existence for some period of time, the absence of evidence ... is fatal to the claimant's cause of action." Id. , 97-0393, p. 7, 699 So.2d at 1086 (emphasis added).

In White , Kennedy , and Babin , the Supreme Court addressed only the "temporal" element of the statute, which simply requires that the plaintiff show that the condition existed for "some period of time." These Courts held that the plaintiffs could not meet their burden of proof because they presented no evidence at all . See White , 97-0393, p. 7, 699 So.2d at 1086 ("Plaintiff presented absolutely no evidence that the liquid was on the floor for any length of time."); Babin , 00-0078, p. 6, 764 So.2d at 40 ("Despite his speculation that the condition may have existed for some period prior to his fall, plaintiff is clearly unable to make a positive showing."); Kennedy , 98-1939, 733 So.2d at 1191 ("[P]laintiff presented absolutely no evidence as to the length of time the puddle was on the floor before his accident."). These Courts, therefore, did not reach the second issue of whether the condition "would have been discovered if the merchant had exercised reasonable care." According to the Supreme Court in White , "[w]hether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question. " White , 97-0393, p. 4, 699 So.2d at 1084 (emphasis added).

Ms. Lewis Presented Sufficient Circumstantial Evidence to Show that the Substance on the Floor Existed for "Some Period of Time" Prior to Her Accident

Proof of the temporal element of La. R.S. 9:2800.6 may be made by both direct and substantial evidence. Birdsong v. Hirsch Mem'l Coliseum , 39,101, p. 7 (La. App. 2 Cir. 12/15/04), 889 So.2d 1232, 1236. Thus, "[a] plaintiff is not required to prove by eyewitness testimony that the hazardous condition existed for a certain number of minutes prior to the fall." Beggs v. Harrah's New Orleans Casino , 14-0725, p. 10 (La. App. 4 Cir. 1/21/15), 158 So.3d 917, 923. Ms. Lewis, therefore, may rely on circumstantial evidence to meet her burden of proving constructive notice. See Davis v. Cheema, Inc. , 14-1316, p. 8 (La. App. 4 Cir. 5/22/15), 171 So.3d 984, 989. Circumstantial evidence is "evidence of one fact, or a set of facts, from which the existence of the fact to be determined may reasonably be inferred." Smith v. Toys "R" Us, Inc. , 98-2085, p. 7 (La. 11/30/99), 754 So.2d 209, 213.

As stated in White , there is no "bright line time period" required, and the time period need not be in specific minutes or hours. All that is required is that the substance be present for "some period of time" prior to Ms. Lewis's accident. The surveillance video shows that, one minute after Ms. Lewis entered the tiled walkway in front of Harrah's buffet, her leg slipped out from under her and she fell. The video shows that within seconds of the accident, Ms. Lewis's son and husband rushed over to help her, and both testified that they saw the foreign substance on the floor and her shoe. Ms. Lewis testified that she saw "little white stuff" on the floor. She also said that when Mr. Parkman came over immediately to help her, he told her that she had slipped on a "smushed grape." Ms. Mayshack, the Harrah's supervisor stated that she was called over by Mr. Parkman after the fall, and she saw a substance like "melted cheese" on the floor. And because Ms. Lewis's slip and fall, and the witnesses' observations of the foreign substance, occurred within seconds of each other, we disagree with Jazz Casino's contention that post-accident evidence is insufficient to establish that the substance was on the floor for "some period of time" before the accident. See Davis v. M & E Food Mart, Inc. , 02-0585, p. 2 (La. App. 3 Cir. 10/30/02), 829 So.2d 1194, 1196 (reversing summary judgment where defendant's employees testified that they saw a "smashed" grape on the floor when they went to help the plaintiff "immediately" after her slip and fall).

It may be reasonably inferred from this circumstantial evidence that the foreign substance was on the floor for "some time period" before Ms. Lewis's fall. That is all the Supreme Court requires.

We conclude, therefore, that Ms. Lewis has satisfied the "prerequisite showing of some time period." White, 97-0393, p. 4, 699 So.2d at 1084.

The trial court did not address the second component of constructive notice, which requires proof that the condition would have been discovered during this time period if the merchant had exercised reasonable care. La. R.S. 9:2800.6(C)(1). In White , the Supreme Court declared that "[w]hether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question." White , 97-0393, p. 4, 699 So.2d at 1084 (emphasis added).

Thus, whether or not the condition existed for such a length of time sufficient to constitute constructive notice is a fact question that must be submitted to the jury. Bagley v. Albertson's, Inc. , 492 F.3d 328, 331 (5th Cir. 2007) ; Zachary v. Macy's Retail Holdings, Inc. , No. 09-868, 2010 WL 2267522, at *3 (M.D. La. June 2, 2010) ("To emphasize, whether the period of time was sufficient to create constructive notice is a factual question reserved for the jury.") (citing White , supra ); Price v. Wal-Mart Stores, Inc. , No. 07-1114, 2008 WL 341375, at *4 (W.D. La. Feb. 5, 2008).

In sum, we conclude that Ms. Lewis has presented sufficient circumstantial evidence to show that the foreign substance was on the floor of the casino for "some period of time" prior to her slip and fall. Whether the condition existed for such a length of time sufficient to place Jazz Casino on notice is necessarily a question of fact for the jury.

Ms. Lewis Has Established the Existence of Genuine Issues of Material Fact

We also agree with Ms. Lewis that the circumstantial evidence presented in opposition to the Motion for Summary Judgment establishes the existence of genuine issues of material fact such that summary judgment is precluded. See Wood v. Becnel , 02-1730, pp. 7-8 (La. App. 4 Cir. 2/26/03), 840 So.2d 1225, 1228-29. For example, although Ms. Lewis proved that the substance was on the floor for "some period of time," the length of time the substance was present is clearly in dispute and can only be determined by the fact finder at trial. Ms. Lewis has established that the surveillance videotape only shows the condition of the floor one minute prior to the accident. Ms. Lewis asserts that Jazz Casino selectively chose to only preserve video for one minute before her fall, which raises a genuine issue of material fact as to whether Jazz Casino intentionally, and without reasonable explanation, failed to preserve videotape evidence that was detrimental to its case and would have enabled Ms. Lewis to prove her case. Finally, although Harrah's buffet closed at 10:00 p.m., Jazz Casino has no logs or other records showing whether the walkway floor was cleaned between 10:00 p.m. and the time of her slip and fall, which establishes another genuine issue of material fact for the jury.

Because Ms. Lewis presented circumstantial evidence that satisfied her burden of showing that the substance was on the floor for "some period of time" before her slip and fall, and because this evidence established the existence of genuine issues of material fact, the trial court erred in granting Jazz Casino's motion for summary judgment.

CONCLUSION

For all these reasons, we reverse the trial court's judgment and remand this matter for further proceedings.

REVERSED; REMANDED

LOBRANO, J., CONCURS IN THE RESULTS.

BAGNERIS, J., DISSENTS

BAGNERIS, J., DISSENTS

I respectfully dissent from the majority ruling, because I find that the plaintiff cannot make the required showing of constructive notice on the part of defendant-appellee, Jazz Casino. See La. R.S. 9:2800.6(B).

The parties do not dispute that the fall occurred and a foreign substance was found on plaintiff's shoe at the time of the fall. Instead, the principal issue in this case is whether Jazz Casino had constructive notice of the condition. " 'Constructive notice' means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." La. R.S. 9:2800.6 (C)(l). "[W]here a claimant is relying upon constructive notice..., the claimant must come forward with positive evidence showing that the damage-causing condition existed for some period of time, and that such time was sufficient to place the merchant defendant on notice of its existence." White v. Wal-Mart Stores, Inc. , 97-0393, p. 1 (La. 9/9/97), 699 So.2d 1081, 1082. The merchant does not have to make a positive showing of the absence of the existence of the condition before the fall. Id. , 97-0393 at p. 7, 699 So.2d at 1086.

While the question "[w]hether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question ... there remains the prerequisite showing of some time period . A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute." Id. , 97-0303 at p. 4, 699 So.2d at 1084 (emphasis added).

"The statute is clear ... the claimant must show that the substance remained on the floor for such a period of time that the defendant merchant would have discovered its existence through the exercise of ordinary care." Id. , 97-0393 at p. 7, 699 So.2d at 1086. Plaintiff herein presented absolutely no evidence that the substance was on the floor for any length of time. The videotape shows nothing on the floor prior to the accident, and it is equally possible that the substance was tracked in by plaintiff herself on her shoe, or was tracked in by and fell off of the shoe of one of the individuals who immediately preceded her through the area. Moreover, the majority's emphasis on the fact that videotape was only preserved for the minute leading up to the fall is misplaced. Nothing is visible in the videotape, so there would be no benefit from watching nothing on the videotape for ten minutes or an hour, rather than the portion that was preserved. If the video had shown something on the floor, extended videotape would be useful to show how long it had been there; but where it shows nothing, more tape is not more helpful.

"This complete lack of evidence falls far short of carrying the burden of proving that the [substance] had been on the floor for such a period of time that the defendant should have discovered its existence." Id. Therefore, I find that plaintiff cannot demonstrate an essential element of her claim, and the district court properly granted summary judgment.

Accordingly, I respectfully dissent.

      Circumstantial evidence can be used to defeat a motion for summary judgment. Tomlinson v. Landmark American Ins. Co. , 15-0276, pp. 7-8 (La. App. 4 Cir. 3/23/16), 192 So.3d 153, 159.


text:
    Federico Espinoza MARTINEZ v. JAROSLAV RAMES/WORLD OF TASTE, LLC
    NO. 2017-CA-0977
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 9, 2018
   Cesar R. Burgos, Robert J. Daigre, Gabriel O. Mondino, George M. McGregor, BURGOS & ASSOCIATES, L.L.C., 3535 Canal Street, Suite 200, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT

Eric Oliver Person, ATTORNEY AT LAW, 1539 Jackson Avenue, Suite 100, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)

Judge Roland L. Belsome This is an appeal from a ruling by the Office of Workers' Compensation ("OWC"). The OWC ruling determined that the appellant, Federico Martinez was not entitled to workers' compensation benefits.

The following facts of the case were detailed in a previous appeal to this court:

Federico Espinoza Martinez was hired to perform work for Jarislov Rames. Mr. Martinez was lowering a washer/dryer combination unit from a second floor apartment with the help of four other people. Mr. Martinez testified that he received a laceration on his hand when one of the cords used to lower the unit "just busted or I don't know exactly how it happened, causing the unit to come down all of the [sic] sudden." He and the others completed lowering the unit and then he informed Mr. Rames of his injury. Mr. Rames drove Mr. Martinez to the emergency room and paid the initial emergency room fee of $500 to ensure Mr. Martinez received treatment. Mr. Martinez's laceration required stitches. When Mr. Martinez arrived to collect his pay, Mr. Rames deducted a portion of the $500 emergency room fee from Mr. Martinez's earnings. Mr. Rames informed Mr. Martinez that he would deduct the remainder of the fee from future earnings. Mr. Martinez did not speak to Mr. Rames after the reduction of his pay.

Thereafter, Mr. Martinez filed a Disputed Claim for Compensation asserting that he was owed workers' compensation benefits for his injuries. After a hearing on the issue, the OWC found that Mr. Martinez was an independent contractor, not an employee of Mr. Rames, and benefits were denied.

On appeal to this Court, Mr. Martinez maintained that the OWC erred by failing to apply the manual labor exception to the independent contractor doctrine. In that appeal, this Court remanded the matter to the OWC for a determination on the manual labor exception. On remand, the OWC found that the facts of this case did not fall within the manual labor exception set forth in La. R.S. 23:1021(7). We disagree.

In the instant appeal, the sole issue before the Court is whether the facts and circumstances in this case support the application of the manual labor exception.

Appellate courts' standard of review for the OWC's findings of fact is manifest error/clearly wrong.

As stated in La. R.S. 23:1021(7), an independent contractor is covered by the provisions of workers' compensation when a substantial part of his work time is spent performing manual labor. The Louisiana Supreme Court has held that for an independent contractor to be covered under the manual labor exception, it must be shown that a substantial part of his work is spent performing manual labor in carrying out the terms of his contract with the principal and the work is essential to the principal's trade, business, or occupation. The case law has consistently defined manual labor as work where the physical element outweighs the mental element. "The determination of whether a particular activity constitutes a part of the trade, business, or occupation of a principal must be decided on the facts of each case."

This Court was presented with similar facts in Steinfelds v. Villarubia . In that case, Mr. Villarubia was engaged in several business activities involving a property known as the Degas House, a historic museum/guest house in New Orleans. Mr. Villarubia hired Mr. Steinfelds as a contract laborer to perform carpentry work at a building on site. While performing the work, Mr. Steinfelds was injured when he fell from scaffolding. In Steinfelds, this Court noted that it is not just the title of independent contractor that determines if workers' compensation benefits are available; it is the substance of the relationship between the contractor and the principal. This Court found that Mr. Steinfelds was performing manual labor and the manual labor exception applied because "the repair and renovation of the buildings was essential to the operation of the various businesses" Mr. Villarubia was managing. Thus, Mr. Steinfelds' work was an essential part of Mr. Villarubia's trade, business, or occupation.

Likewise, in the instant case, Mr. Martinez did carpentry and maintenance work for Mr. Rames. Mr. Martinez's work was clearly more physical than mental which meets the criteria for manual labor. The next inquiry is whether the work being performed at the time of Mr. Martinez's injury was part of Mr. Rames' trade, business, or occupation. The record established that Mr. Rames is in the business of offering short-term rentals through the website Air B & B. Mr. Martinez testified that he worked at several apartments owned by Mr. Rames. On the day of his injury, Mr. Martinez was moving a washer and dryer from one of Mr. Rames' rental apartments. Mr. Martinez explained that the scope of his work that day was to remove the washer and dryer from the apartment, and to open the wall where the washer and dryer was previously housed to increase the space for a larger washer and dryer. Accommodating renters' needs through routine maintenance and site improvements is indisputably a necessary and integral part of operating a short-term rental business.

Based on this record, Mr. Martinez falls within the manual labor exception. Accordingly, we find that the OWC erred in dismissing Mr. Martinez's workers' compensation claim. The judgment of the OWC is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED

BARTHOLOMEW-WOODS, J., CONCURS IN THE RESULT

      Martinez v. Rames, 2016-1312, pp. 1-2 (La.App. 4 Cir 7/12/17), 224 So.3d 467, 469-70 ("Martinez I" ).

      Martinez I .

      La. R.S. 23:1021 (7) defines an independent contractor in part as follows:
      "Independent contractor" means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. (emphasis added).

      Dean v. Southmark Constr., 2003-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117 (citing Brown v. Coastal Constr. & Eng'g, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10 ).

      Lushute v. Diesi, 354 So.2d 179, 182 (La. 1977).

      Steinfelds v. Villarubia, 2010-975, p.9 (La.App. 4 Cir. 12/15/10), 53 So.3d 1275, 1281 (citing Riles v. Truitt Jones Constr., 1994-1224 (La. 1/17/95), 648 So.2d 1296, 1300 ).

      Steinfelds , 2010-0975, p. 10, 53 So.3d at 1282.

      Steinfelds, 2010-975, p. 9, 53 So.3d 1275, 1281 (quoting Fleniken v. Entergy Corp., 2000-1824 (La.App. 1 Cir. 2/16/01), 780 So.2d 1175 ).