Bonds v. Abbeville General Hosp.

• Decision Date: 04 April 2001
• Docket Number: No. 00-1462.,00-1462.
• Citation: 782 So.2d 1188
• Parties: Kaylon Delaine Lisenby BONDS and Odie Bonds, Individually and on Behalf of their Minor Daughter, Kodi Bonds v. ABBEVILLE GENERAL HOSPITAL.
• Court: Court of Appeal of Louisiana — District of US

782 So.2d 1188

Kaylon Delaine Lisenby BONDS and Odie Bonds, Individually and on Behalf of their Minor Daughter, Kodi Bonds v. ABBEVILLE GENERAL HOSPITAL.

No. 00-1462.

Court of Appeal of Louisiana, Third Circuit.

April 4, 2001.

COPYRIGHT MATERIAL OMITTED

Kenneth W. Dejean, Lafayette, LA, Counsel for Plaintiffs/Appellants, Kaylon Delaine, Lisenby Bonds and Odie Bonds, Individually and on Behalf of Their Minor Daughter, Kodi Bonds.

Robert A. Matook, Jr., Lafayette, LA, Counsel for Defendant/Appellant, Security Patrol Agency, Inc.

P. Scott Jolly, Baton Rouge, LA, Counsel for Defendant/Appellee, Abbeville General Hospital.

Court composed of DOUCET, Chief Judge, THIBODEAUX, and WOODARD, Judges.

DOUCET, Chief Judge.

The Plaintiffs appeal the trial court's dismissal of their claims against the Defendant, Abbeville General Hospital (the Hospital), pursuant to the Hospital's motion for summary judgment.

The underlying facts of this case are not in dispute. On November 13, 1996, at about 8:03 p.m., Kaylon Bonds arrived at the Hospital to begin her shift as an x-ray technician. She parked near a door to the hospital. After exiting her car she was accosted by Lawrence Stagg. He held a gun to her side and forced her back into her car. He directed her to drive to a deserted area where he beat and raped her.

Mrs. Bonds, her husband and her daughter filed suit against the hospital and Security Patrol Agency, Inc. (Security), the security service that provided the guard on duty in the parking lot that evening. The Hospital and Security filed motions for summary judgment asserting that they were entitled to dismissal of the Plaintiffs' claims. Both asserted that the criminal assault on Kaylon Bonds was not foreseeable and that, as a result, they did not have a legal duty to protect her against such assaults. The Hospital additionally asserted that even if it had a duty, the duty was discharged by hiring an outside security service.

The motions were submitted to the trial court on briefs. The trial court granted the Hospital's motion for summary judgment and denied that of Security, assigning written reasons. The Plaintiffs appeal the trial court's decision to grant the Hospital's motion. Security appeals the trial court's denial of its motion.

STANDARD OF REVIEW

An appellate court reviews summary judgments de novo, applying the same criteria as the district court in determining whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State Univ., 591 So.2d 342 (La.1991); Haley v. Calcasieu Parish School Bd., 99-883 (La.App. 3 Cir. 12/8/99); 753 So.2d 882, writ denied, 2000-54 (La.2/24/00); 755 So.2d 242. Article 966(B) of the Louisiana Code of Civil Procedure provides that summary judgment shall be granted where the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.

The burden of showing that there are no genuine issues of material fact is borne by the mover. La.Code Civ.P. art. 966(C)(2). To satisfy this burden, the mover must present supportive evidence that the motion should be granted. Once the mover establishes a prima facie showing, the burden of production shifts to the nonmoving party to present evidence of the existence of issues of material fact which preclude summary judgement. An adverse party may not rest on the pleadings but must set forth, by affidavit or otherwise, specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art. 967.

Mercury Cellular Telephone Co. v. Calcasieu Parish of La., 00-0318, p. 4 (La.App. 3 Cir. 12/13/00); 773 So.2d 914, 917.

THE HOSPITAL'S DUTY

The Plaintiffs assert that the trial court erred in finding that the Hospital owed no duty to protect Kaylon Bonds from this assault. The Fourth Circuit in Fleming v. Hilton Hotels Corp., 99-1996, p. 3 (La.App. 4 Cir. 7/12/00); 774 So.2d 174, 177 (emphasis added), explained that method by which a court must determine whether liability exists:

Liability based on negligence is present when a plaintiff, applying a duty risk analysis, is able to establish the following: the conduct is a cause in fact of the resulting harm; the defendant owed a duty to the plaintiff; the duty was breached; and the risk of harm was within the scope of the duty. Fox v. Board of Supervisors of LSU, 576 So.2d 978, 981 (La.1991); Mart v. Hill, 505 So.2d 1120 (La.1987); Hill v. Lundin & Assoc., Inc., 260 La. 542, 256 So.2d 620 (1972). Furthermore, in determining whether liability exist (sic) under a duty-risk analysis, a plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, that defendant owed a duty to plaintiff that defendant breached, and the risk of harm was within the scope of the protection afforded by the duty breached. Hartman v. Vermillion Parish Police Jury, 94-893 (La.App. 3 Cir 3/1/93), 651 So.2d 476, 479, writ denied, 95-0778 (La.5/5/95), 654 So.2d 326, citing Campbell v. Louisiana Dept. of Trans. and Dev., 94-1052 (La.1/17/95), 648 So.2d 898. The existence of a duty is a question of law and similarly the question as to whether a particular risk is included within the scope of a particular duty is a legal issue to be resolved by the court. Dillon v. Louisiana Power & Light, 557 So.2d 293, 295 (La.App. 4 Cir.1990); LeBlanc v. Wall, 430 So.2d 1130 (La.App. 1 Cir. 1983), writ denied, 438 So.2d 571 (La. 1983).

Since this court must use the same criteria as the trial court in determining whether summary judgment was appropriate, we must determine whether the Hospital owed a duty to protect Kaylon Bond from criminal attack by third parties under the facts of this case.

The Louisiana Supreme Court recently set out the duty of a business to protect its patrons against criminal acts by third parties:

[A]lthough business owners are not the insurers of their patrons' safety, they do have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable. We emphasize, however, that there is generally no duty to protect others from the criminal activities of third persons. This duty only arises under limited circumstances, when the criminal act in question was reasonably foreseeable to the owner of the business. Determining when a crime is foreseeable is therefore a critical inquiry.

Posecai v. Wal-Mart Stores, Inc., 99-1222, pp. 5-6 (La.11/30/99); 752 So.2d 762, 766-67. In Posecai, the supreme court adopted a balancing test as the best method of determining foreseeability, stating:

The foreseeability of the crime risk on the defendant's property and the gravity of the risk determine the existence and the extent of the defendant's duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances

Id. at p. 8-9; 752 So.2d at 768.

In support of their motions for summary judgment the defendants filed into the record the affidavits of Willis A. Hebert, Ivory Jones, and the deposition of Kaylon Bonds. Willis Hebert, the Human Resource Director/Risk Manager for the Hospital swore that he had no knowledge or record of criminal activity taking place in the employee parking lot at the Hospital and that the hospital was not aware of any other criminal attack on a visitor or employee since the Hospital opened in 1964. His affidavit further shows that the Hospital hired Security to provide security personnel for the Hospital and that the Hospital's own employees did not patrol the parking lot.

Ivory Jones swore that he is employed as a security guard at the Hospital and was patrolling the Hospital parking lot on the date in question. He attested that Security was under contract to supply security services to the Hospital. Jones further swore that Security had no knowledge,...