25,357 La.App. 2 Cir. 1/19/94, Barnett v. Staats

• Decision Date: 19 January 1994
• Parties: 25,357 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 84

631 So.2d 84

25,357 La.App. 2 Cir. 1/19/94

Peggy BARNETT, Plaintiff-Appellee, v. Dr. Thomas STAATS, et al., Defendants-Appellants.

No. 25357-CA.

Court of Appeal of Louisiana Second Circuit.

Jan. 19, 1994.

Cook, Yancey, King & Galloway by Charles G. Tutt, Ronald F. Lattier, Shreveport, for defendants-appellants Dr. Thomas Staats, Mrs. Thomas Staats and State Farm Mut. Ins. Co.

Jack M. Bailey, Jr., William K. Adams, Steven L. Rushing, Shreveport, for plaintiff-appellee.

Paul R. Myers, Jr., Shreveport, for defendant-appellee George Jackson, Jr.

Hicks & Hubley by Craig O. Marcotte, Shreveport, for defendants-appellees L.J. Sumrall, Mary Sumrall, and United States Fidelity & Guar. Co.

Before NORRIS, LINDSAY and WILLIAMS, JJ.

LINDSAY, Judge.

The defendants, Dr. Thomas Staats, M'Lou Staats, and their insurer, State Farm Mutual Insurance Company, appeal from a partial summary judgment granted against them on the grounds that the Staats owned the building where the plaintiff was allegedly injured and were thus strictly liable for her injuries under LSA-C.C. Art. 2317 and 2322. For the reasons assigned below, we reverse the granting of the plaintiff's motion for partial summary judgment and remand the matter to the trial court for further proceedings.

FACTS

The plaintiff, Peggy Barnett, filed suit alleging that prior to the accident, she was employed in the office of the Doctors Psychological Center. The office was located in a building owned by Dr. Thomas Staats and his former wife, M'Lou Staats (the plaintiff's sister). The plaintiff alleged that she was injured on March 22, 1990. The plaintiff asserted that she was at her desk when a large, wall-mounted cabinet, which was supposed to be permanently attached to the office wall, suddenly collapsed on top of her, causing her injuries.

Named as defendants in the plaintiff's original suit were the Staats; their insurer, State Farm; George A. Jackson, Jr., the architect who designed the building and the cabinet in question; and L.J. and Mary Sumrall, d/b/a Sumrall Construction Company (hereinafter referred to as "Sumrall"), the general contractor who built the office complex. Subsequently, the plaintiff added Sumrall's insurer, United States Fidelity and Guaranty Company, as well as Jackson's insurer, Continental Casualty Company.

The plaintiff filed a motion for partial summary judgment against the Staats on the grounds that they owned the building at the time of the alleged occurrence and they were strictly liable for her injuries under LSA-C.C. Arts. 2317 and 2322. The plaintiff's affidavit, which was submitted in support of her motion for partial summary judgment, stated that she was employed by Doctors Psychological Center; that she suffered serious injuries as a result of a cabinet falling on her; and that she did nothing to cause the cabinet to fall. In support of her motion, she also submitted excerpts from the depositions of M'Lou Staats, Dr. Thomas Staats, George Jackson, Tom B. Holmes, and L.J. Sumrall.

In his deposition, Dr. Staats stated that he heard the cabinet fall. Upon investigation, he found the plaintiff pinned down under the cabinet. He further admitted that he and his former wife owned the building individually and that it was headquarters for his corporation, Doctors Psychological Center, which employed the plaintiff. Mrs. Staats' deposition excerpt referred to her observation of bruises on the plaintiff's legs.

In the excerpts from his deposition, Mr. Jackson admitted being the architect of the building. He testified that he examined the cabinet after it fell and he saw no signs whatsoever of any glue in the cabinet joints. He stated that in his opinion it was improper for the cabinet to not be glued, and that the lack of glue was the principal reason for the failure of the cabinet. However, he also stated that he had no knowledge of what was stored in the cabinets "so it could have been a combination." Nonetheless, in his opinion, if the cabinet had been properly glued, the cabinet would have held the paper goods normally stored in the cabinet of a secretarial office.

According to the excerpts from the deposition of L.J. Sumrall, his company subcontracted the furnishing of the cabinets from Ellis Millwork Company. ¹ In order to install the cabinets, his workers followed the specifications on the architect's plans. The plaintiff also attached an excerpt from the deposition of Tom B. Holmes (apparently an expert witness), who testified that after reading the contract specifications for the cabinets, he was of the opinion that, in order to hold the cabinets together, they should have been stapled and glued.

The plaintiff's motion for partial summary judgment was sustained by the trial court without written reasons for judgment.

The defendants appeal. They assign as error the following: (1) the trial court erred in considering excerpts of depositions when the depositions themselves were not part of the record; (2) the trial court erred in considering the opinion testimony of the architect of the building and cabinet, who was also a codefendant; (3) the trial court erred in granting partial summary judgment in favor of the plaintiff on the issue of strict liability; (4) the trial court erred in finding that the plaintiff carried her burden of proof on the issue of defect; and (5) the trial court erred in not considering the issue of third-party fault. Due to our resolution of the issues concerning opinion evidence and the burden of proof, we find that summary judgment was improperly granted.

SUMMARY JUDGMENT

A motion for summary judgment shall be granted forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966.

A fact is material if its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Facts are "material" if they potentially insure or preclude recovery, affect the litigants' ultimate success or determine the outcome of the legal dispute. Security National Trust v. Kalmback, 613 So.2d 664 (La.App. 2d Cir.1993).

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. LSA-C.C.P. Art. 967.

The mover has the burden of affirmatively showing the absence of a genuine issue of material fact and any doubt on this score should be resolved against granting the motion. Watson v. Cook, 427 So.2d 1312 (La.App. 2d Cir.1983); Security National Trust v. Kalmback, supra.

To satisfy his burden, the party moving for the summary judgment must meet a strict standard by showing that it is quite clear as to what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. Watson v. Cook, supra.

On a motion for summary judgment, the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If insufficient, summary judgment must be denied. If sufficient, the burden then shifts to the opposing party to present evidence showing that material facts are still at issue. An opposing party need not file affidavits unless the moving party has established both that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Security National Trust v. Kalmback, supra.

Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. McNeer Electrical Contracting, Inc. v. CRL, Inc., 621 So.2d 99 (La.App. 2d Cir.1993).

Deposition Excerpts

The appellants complain that only excerpts of depositions were submitted in support of the plaintiff's motion. However, LSA-C.C.P. Art. 1450 allows the use of any part or all of a deposition upon the hearing of a motion. ² See Johnson v. Slidell Memorial Hospital, 552 So.2d 1022 (La.App. 1st Cir.1989), writ denied, 558 So.2d 571 (La.1990). Furthermore, the appellants apparently did not complain about the use of the excerpts in the trial court; had they done so, they could have required the plaintiff to introduce any other relevant portions of the depositions which, in fairness, should have also been considered. See LSA-C.C.P. Art. 1450(A)(4).

We are not presented with the same problem addressed in Placid Refining Company v. Privette, 523 So.2d 865 (La.App. 1st Cir.1988), writ denied, 524 So.2d 748 (La.1988), where the deposition excerpts were attachments to a memorandum which was not properly filed into the record. We find that the deposition excerpts in the present case were properly filed in the record and considered by the trial court in granting the motion for partial summary judgment. Pickering v. Hercules Incorporated, 486 So.2d 1185 (La.App. 3d Cir.1986).

We also distinguish the facts of the present case from those of Jackson v. Case, 522 So.2d 709 (La.App. 5th Cir.1988), and Funck v. Surgi's Heating and Air Conditioning, Inc., 537 So.2d 840 (La.App. 5th Cir.1989). In each of those cases, the Fifth Circuit followed its policy of not considering deposition testimony quoted in a memorandum where the deposition itself nowhere appeared of record. (To the extent that Funck also involved deposition excerpts, we decline to follow it.)

Therefore, this assignment of error has no merit.

Opinion Evidence

The appellants also argue that, even if the deposition excerpts were deemed properly admitted, the trial court improperly considered "opinion evidence" contained therein.

Several courts, including this court, have held that, in the context of a motion for summary judgment, opinion evidence contained in...