Alexander v. Hancock Bank

• Decision Date: 08 February 2017
• Docket Number: NO. 2016–CA–0662,2016–CA–0662
• Citation: 212 So.3d 713
• Parties: Sybil ALEXANDER v. HANCOCK BANK d/b/a Whitney Bank, Chubb Insurance Company, A-1 Service and United Fire Group
• Court: Court of Appeal of Louisiana — District of US

212 So.3d 713

Sybil ALEXANDER
v.
HANCOCK BANK d/b/a Whitney Bank, Chubb Insurance Company, A-1 Service and United Fire Group

NO. 2016–CA–0662

Court of Appeal of Louisiana, Fourth Circuit.

February 8, 2017

Bobby Ray T. Malbrough, R. Ray Orrill, Jr., William Christopher Beary, Alexandre L.M. Ducros, ORRILL CORDELL & BEARY, L.L.C., 330 Carondelet Street, New Orleans, LA 70130—3144, COUNSEL FOR PLAINTIFF/APPELLANT

Alexander Richard Saunders, PELLETERI & WIEDORN, L.L.C., 636 Carondelet Street, New Orleans, LA 70130, Evan J. Bergeron, DEUTSCH, KERRIGAN & STILES, L.L.P., 755 Magazine Street, New Orleans, LA 70130, James Walter Hailey, III, LEWIS BRISBOIS BISGAARD & SMITH, LLP, 400 Poydras Street, Suite 2000, New Orleans, LA 70130, COUNSEL FOR DEFENDANTS/APPELLEES

(Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Regina Bartholomew Woods )

Judge Regina Bartholomew Woods

FACTUAL AND PROCEDURAL BACKGROUND

This is a personal injury suit arising out of a trip and fall on a mat in the lobby of a bank. On May 17, 2013, Plaintiff, Sybil Alexander ("Ms. Alexander"), made a routine visit to the Whitney Bank located at 228 St. Charles Avenue in New Orleans, Louisiana. Upon exiting the lobby of the bank, Ms. Alexander alleges that she tripped and fell over a "wave" or "lip" in the rubber edge of the floor mat. As a result, she fell forward, striking her head on the door resulting in a large gash. She also tore her lateral and medial meniscus in her left knee.

On May 16, 2014, Ms. Alexander filed this suit against Hancock Bank d/b/a Whitney Bank ("Whitney"), and A–1 Services, Inc. ("A–1"), as the supplier of the commercial floor mat to Whitney.¹ On January

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4, 2016, Whitney filed a motion for summary judgment on liability. A–1 likewise filed a motion for summary judgment. On February 19, 2016, the trial court granted the motions for summary judgment on liability in favor of Whitney and A–1. Ms. Alexander filed this appeal from the trial court's rulings.

DISCUSSION

In her appellate brief, Ms. Alexander presents a number of assignments of error and issues for review. We frame the issues presented as two-fold:

1. Whether the trial court's grant of summary judgment in favor of the defendants was appropriate.

2. Whether the trial court applied the appropriate substantive law in evaluating the defendants' motion for summary judgment.

Here, we must determine whether the trial court's grant of summary judgment in Whitney's favor was appropriate. An appellate court conducts a de novo review, applying the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Brown v. Amar Oil Co. , 2011–1631, p. 2 (La.App. 1 Cir. 11/8/12), 110 So.3d 1089, 1090 (citing Sanders v. Ashland Oil, Inc. , 96–1751, p. 6 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035 ). A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. Collins v. Randall , 2002–0209, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 352, 354. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. King v. Allen Court Apartments II , 2015–0858, p. 3 (La.App. 1 Cir. 12/23/15), 185 So.3d 835, 837, writ denied , 2016–0148 (La. 3/14/16), 189 So.3d 1069. This procedure is favored and shall be construed to accomplish these ends. Id. ; see also La. C.C.P. Art. 966 A(2).

The initial burden of proof rests on the moving party. La. C.C.P. Art. 966 D(1). However, if the mover will not bear the burden of proof at trial on the matter 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 that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. King , 2015–0858 at p. 3, 185 So.3d at 838. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. It is only after the motion has been made and properly supported that the burden shifts to the non-moving party. Brown , 2011–1631 at p. 3, 110 So.3d at 1090–91 ; Pugh v. St. Tammany Parish School Bd. , 2007–1856, p. 3 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 98.

A genuine issue is a triable issue. Brown , 2011–1631, p. 3, 110 So.3d at 1090–91. Jones v. Stewart , 2016–0329, p. 7 (La.App. 4 Cir. 10/5/16), 203 So.3d 384, 389, writs denied , 2016–1962, 2016–1967 (La. 12/16/16) ––– So.3d. ––––, ––––, 211 So.3d. 1169, 2016 WL 7638451, 2016 WL 7638388. More precisely, an issue is genuine if reasonable persons could disagree. Id. If on the state of the evidence, reasonable

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persons could reach only one conclusion, there is no need for a trial on that issue. Id. A fact is material when its existence or non-existence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Id. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Id. ; King v. Illinois Nat. Ins. Co. , 08–149, p. 6 (La. 4/3/09), 9 So.3d 780, 784. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of substantive law applicable to the case. Brown , 2011–1631 at p. 3,110 So. 3d at 1091 ; Hall v. Our Lady of the Lake R.M.C. , 2006–1425, p. 9 (La. App. 1 Cir. 6/20/07), 968 So.2d 179, 185.

In order to determine whether...