Encalade v. A.H.G. Solutions, LLC

• Decision Date: 16 November 2016
• Docket Number: NO. 2016–CA–0357,2016–CA–0357
• Citation: 204 So.3d 661
• Parties: Gail Encalade v. A.H.G. Solutions, LLC, Amber Hess (Member) ABC Insurance
• Court: Court of Appeal of Louisiana — District of US

204 So.3d 661

Gail Encalade
v.
A.H.G. Solutions, LLC, Amber Hess (Member) ABC Insurance

NO. 2016–CA–0357

Court of Appeal of Louisiana, Fourth Circuit.

NOVEMBER 16, 2016

C. A. "Chip" Fleming, III, 2118 N. Causeway Blvd., Metairie, LA 70001, COUNSEL FOR PLAINTIFF/APPELLANT

Scott S. Dittmann, 3850 N. Causeway Blvd., Suite 220, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Joy Cossich Lobrano )

Judge Terri F. Love

Gail and Adam Encalade ("Plaintiffs") appeal the trial court's judgment granting summary judgment in favor of A.H.G. Solutions, LLC, Amber Hess, and America First Insurance Company (collectively "Defendants"). On de novo review, we find there is no evidence to establish that Defendants knew or should have known of any alleged defect of the restroom door's closing mechanism which Plaintiffs claim caused the injuries Mrs. Encalade sustained when she fell exiting the women's restroom. Also, Plaintiffs' expert report is insufficient proof as its theory of causation is based in conjecture and speculation. As a result, Plaintiffs are unable to establish the necessary elements of La. C.C. art. 2317.1 in order to prove that Defendants failure to inspect and maintain the restroom door in a reasonably safe condition was the cause of Mrs. Encalade's injuries. Accordingly, we affirm the trial court's judgment granting Defendants' summary judgment motion and dismissing Plaintiffs' petition for damages with prejudice.

204 So.3d 663

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

Mrs. Encalade alleges that in May 2011 she went to see her insurance agent in order to pay her insurance premium. Her agent's office is located in the office building owned by Defendants at 3201 General DeGaulle. Before leaving the building, she visited the ladies' restroom located on the first floor. To enter the restroom, Mrs. Encalade pushed the restroom door open without issue. There is no evidence that anyone came into or left out of the restroom from the time that Mrs. Encalade entered to the time she exited the restroom. To exit, she pulled the restroom door open. Mrs. Encalade contends that when she exited the restroom the door quickly closed behind her, hitting her in the back with enough force that it caused her to fall forward sustaining injuries to her face and her shoulder. The injuries she sustained to her shoulder required surgery and subsequent physical therapy.

In April 2012, Mrs. Encalade filed a petition for damages¹ , alleging that Defendants failed to maintain safe and hazard-free public areas in the building; failed to maintain properly functioning equipment including doors; and failed to prevent Mrs. Encalade's accident by identification of problems with the doorways and the door equipment and hardware. Thereafter, Defendants filed an answer to the petition and filed a motion for summary judgment.

In their motion for summary judgment, Defendants allege that Plaintiffs cannot satisfy their evidentiary burden of proof that: (1) Defendants knew or, in the exercise of reasonable care, should have known of any alleged defect which caused the alleged damage; (2) Mrs. Encalade's accident could have been prevented by the exercise of reasonable care; (3) Defendants failed to exercise reasonable care; and (4) the restroom door was maintained in an unreasonably dangerous condition.

Defendants aver that there is no evidence of any problems with the restroom door before Mrs. Encalade's accident. Defendants point to the testimony of Mrs. Encalade, her daughter Nicole Coleman ("Ms. Coleman"), the building's property manager and staff engineer Barrett Burkart ("Mr. Burkart"), Defendant Amber Hess ("Ms. Hess"), and independent witness Jeannine Talzac's ("Ms. Talzac") affidavit.

Mrs. Encalade testified that her insurance was due every six months, and she would visit her agent at Defendants' building at least every six months to pay her insurance premium. She testified: (1) that she never had issues with the restroom door before her accident; (2) that she was not aware of anyone reporting any problems with the door before her accident; and (3) that no one told her there were any problems with the door before her accident. She also testified that she had no knowledge or information of whether the building's maintenance department knew about any problems with the door before her accident. Mrs. Encalade's daughter Ms. Coleman testified similarly.

Ms. Talzac, an independent witness who worked at the building location on and before Mrs. Encalade's accident, stated that she used the same restroom daily or almost daily and that she never experienced any problem with the restroom door or was aware of any defects or mechanical issues with the restroom door. She also was not aware of any maintenance work done or that needed to be done on the

204 So.3d 664

door. Similarly, she was not aware of anyone other than Mrs. Encalade complaining about the restroom door's alleged defect. Defendants allege that the only purported problem with the door is Mrs. Encalade's present allegation that the door's retention mechanism, which prevents the door from closing too quickly, failed as she exited the restroom, causing the door to strike her in the back which caused her to fall.

Additionally, Mr. Burkart, the property manager and staff engineer, testified that he was responsible for fielding calls for repairs and other problems associated with the building. He stated that there were no records of any complaints or issues with the restroom door, nor was he aware of any problems with the door. He also testified that no one contacted him regarding any problems with the restroom door or made any complaints to him or his assistants, "except for possible verbal comments that [the door] may close too slowly due to women's bathroom privacy issues." He stated that the company which employed him as the building's property manager never worked on the subject door, and the only work done to the restroom was work to the restroom's interior.

Ms. Hess, the sole member and owner of A.H.G. Solutions, LLC, also testified that she was unaware of any complaints made about any problems or issues with the door. She stated: "I have been in and out of the door many times with my children. I have two small children right now ... and I have never had a problem with that door." Based on the foregoing evidence, Defendants contend that there is no evidence that Defendants knew or, in the exercise of reasonable care, should have known of any alleged defect which caused the alleged damage; that this accident could have been prevented by exercise of reasonable care; and that Defendants failed to exercise such reasonable care.

In response, Plaintiffs filed their opposition to Defendants' motion for summary judgment. Plaintiffs contend that Defendants

204 So.3d 665

failed to exercise reasonable care to inspect and discover the defective door closing mechanism; Defendants failed to exercise reasonable care to prevent the accident; and the door was in an unreasonably dangerous condition at the time of the accident and violated federal safety requirements.

Plaintiffs do not dispute the fact that there are no records that an inspection of the restroom door ever took place. Defendant property owner and manager Ryan Hess ("Mr. Hess") testified that he was not aware of any inspection of the door ever taking place before the accident. Mr. Hess also stated that since May 2011 he was not aware of any inspection except his single inspection immediately after Mrs. Encalade's accident. He testified that he inspected the restroom door and found that it was working "fine." Mr. Hess also testified that he has adjusted and installed similar closing mechanisms in the past, and in his opinion they do not require adjustment unless they are tampered with.

In addition, Plaintiffs submitted their expert's report and findings in opposition to Defendants' motion. Don Sanford ("Mr. Sanford") opined that because the "door closer is one of the most highly used pieces of equipment in any building ... normal wear ... requires proper and periodic inspection, maintenance, and adjustment." Mr. Sanford stated that in his opinion the door closing mechanism should be inspected and adjusted "at least annually;" however, in his experience, such inspections are "rarely, if ever," performed. In light of Mr. Hess' testimony and maintenance records showing no inspection or adjustment took place prior to Mrs. Encalade's accident or in the years following the accident, Mr. Sanford concluded that Defendants failed to exercise reasonable care to inspect and discover the defective closing mechanism.

Further, Plaintiffs allege that Mrs. Encalade's accident was foreseeable given Defendants' negligent failure to inspect the restroom door. Plaintiffs point to Mr. Hess' testimony that "he himself experienced the danger of an abnormally fast closing door and that ‘it could be a concern.’ " Plaintiffs contend that had Defendants exercised reasonable care to inspect the restroom door, the risk of danger from the door's defective condition would have been avoided. Mr. Sanford stated that in his expert opinion "more probably...