Higginbotham v. Rapides Foundation

• Decision Date: 31 October 2007
• Docket Number: No. 07-538.,07-538.
• Citation: 968 So.2d 1226
• Parties: Elizabeth HIGGINBOTHAM, and Cynthia Marie Kuhlmann, individually and on behalf of her minor son, Dustin Alexander Kuhlmann v. The RAPIDES FOUNDATION d/b/a Rapides Regional Medical Center, Joseph Wiltz and ABC Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

968 So.2d 1226

Elizabeth HIGGINBOTHAM, and Cynthia Marie Kuhlmann, individually and on behalf of her minor son, Dustin Alexander Kuhlmann v. The RAPIDES FOUNDATION d/b/a Rapides Regional Medical Center, Joseph Wiltz and ABC Insurance Company.

No. 07-538.

Court of Appeal of Louisiana, Third Circuit.

October 31, 2007.

Leonard M. Berins, Gerald Wasserman, Bach & Wasserman, Metairie, LA, for

Plaintiffs/Appellants, Elizabeth Higginbotham and Cynthia Marie Kuhlman, individually and on behalf of her minor son, Dustin Alexander Kuhlman.

Randall M. Seeser, Brandon A. Sues, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendants/Appellees, Rapides Healthcare System, L.L.C., d/b/a Rapides Regional Medical Center and Health Care Indemnity, Inc.

Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.

GENOVESE, Judge.

Plaintiffs, Elizabeth Higginbotham and Cynthia Marie Kuhlmann, individually and on behalf of her minor son, Dustin Alexander Kuhlmann, appeal the trial court's dismissal of their claims against Defendants, Rapides Healthcare System, L.L.C., doing business as Rapides Regional Medical Center (Rapides), and its liability insurer, Health Care Indemnity, Inc. (Health Care), pursuant to summary judgment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 19, 2001, Plaintiff, Elizabeth Higginbotham (Ms. Higginbotham), went to Rapides to visit her daughter, Cynthia Kuhlmann (Mrs. Kuhlmann), who was in the hospital following childbirth. Upon arrival, Ms. Higginbotham parked her vehicle at the corner of Fifth Street and Scott Street in Alexandria, Louisiana. After the visit, Ms. Higginbotham left the hospital accompanied by her two-year-old grandson, Dustin Kuhlmann. While in the process of loading her grandson into the back seat of her automobile, Ms. Higginbotham was mugged by Defendant, Joseph Wiltz (Wiltz). According to Ms. Higginbotham, Wiltz approached her from behind as she was leaning into her back seat, forcefully wrestled her grandson's duffle bag from her, and ran away with the bag. Shortly thereafter, Wiltz was apprehended and arrested by the Alexandria city police.

On April 26, 2002, Plaintiffs filed suit against Rapides, its liability insurer, Health Care, and Wiltz. Plaintiffs' petition alleges: (1) that the attack aggravated Ms. Higginbotham's "previously repaired spinal injury at the C6-7 level and [caused] a new injury at C4-5 and C5-6" which ultimately had to be treated through surgery; (2) that Dustin Kuhlmann suffered mental anguish and emotional distress as a result of witnessing the attack on his grandmother; and (3) that Mrs. Kuhlmann, who "was informed of the incident immediately after it occurred and while she was still a maternity patient[,]" suffered "shock and emotional trauma caused [to] her as a result of witnessing the mental anguish of both her mother and son" which "exacerbated the mental and physical stress normally attendant with the birthing process." Plaintiffs asserted that Rapides was negligent in failing to safeguard Ms. Higginbotham and her grandson from known criminal activity around its premises and that Health Care was liable for Rapides's negligence in accordance with its liability insurance policy insuring Rapides against such a claim.

On September 8, 2006, Rapides filed a motion for summary judgment asserting that it did not own, maintain, patrol, or secure either Fifth Street or Scott Street, the city streets where the mugging occurred. Rapides further asserted that it did not owe a legal duty to protect Plaintiffs against a random and unforeseen criminal incident by an unknown third party occurring on a public or city street. In support of its motion for summary judgment, Rapides attached as exhibits: (1) excerpts of the deposition of Ms Higginbotham; (2) the affidavit of Kevin Johnson, Rapides's Director of Engineering and Construction Services; (3) excerpts of the deposition of Brian Jones, a hospital security supervisor; and (4) excerpts of the deposition of George Sanders, a hospital security officer.

A hearing on Rapides's motion for summary judgment was originally set for October 23, 2006. However, Plaintiffs sought and were granted a continuance; the hearing was reset for December 18, 2006. Plaintiffs served their memorandum in opposition and opposing exhibits upon Rapides on Friday, December 15, 2006, less than three days before the scheduled hearing on Monday, December 18, 2006. Rapides objected to and moved to strike Plaintiffs' untimely served and filed opposition and opposing exhibits. On December 18, 2006, prior to the hearing on Rapides's motion for summary judgment, Plaintiffs requested a second continuance in an effort to timely file an opposition; however, the trial court denied Plaintiffs' request. Instead, Rapides's motion to strike was granted, and Plaintiffs were barred from filing an opposition and arguing on the basis that their opposition was untimely.

On January 5, 2007, the trial court issued written reasons for judgment concluding that Rapides owed no legal duty to Plaintiffs in this matter. On the same day, the trial court signed the judgment granting Rapides's motion for summary judgment, thereby dismissing Plaintiffs' action, with prejudice, against Rapides. Plaintiffs' motion for devolutive appeal was granted by the trial court on February 8, 2007.¹

On February 2, 2007, Health Care filed a motion for summary judgment asserting that it was also entitled to a dismissal of Plaintiffs' action, with prejudice, as a result of its insured, Rapides, being previously relieved of any liability in this matter. In support of its motion for summary judgment, Health Care attached as exhibits: (1) Plaintiffs' first supplemental and amending petition; (2) its answer to Plaintiffs' first supplemental and amending petition; (3) the trial court's written reasons for judgment dated January 5, 2007; and (4) the trial court's judgment signed on January 5, 2007.

In their opposition to Health Care's motion, Plaintiffs argued:

[P]ending the outcome of the appeal of the [s]ummary [j]udgment granted in favor of the hospital, it would be unfair and unjust to dismiss Health Care ... on the grounds that the trial court has already dismissed its insured. Until the appeal process is complete, there can be no final determination as to whether or not this [c]ourt was correct in granting [Rapides's] [m]otion for [s]ummary [j]udgment, and it would be inappropriate to base the dismissal of [Rapides's] insured on the basis of a [j]udgment upon which the Appellate Court has yet to rule.

Plaintiffs also offered as opposing exhibits: (1) the deposition of Ms. Higginbotham; (2) the deposition of Brian Jones; (3) the deposition of George Sanders; (4) the deposition of Nolan French; and (5) eleven reports from the Alexandria Police Department.

A hearing was held on Health Care's motion for summary judgment on March 26, 2007. On March 30, 2007, the trial court issued written reasons for judgment wherein it concluded that Health Care could not be liable for claims against Rapides when Rapides had been relieved of liability in the case. On April 30, 2007, the trial court granted Plaintiffs' motion for devolutive appeal.²

ASSIGNMENTS OF ERROR

Plaintiffs assert, in both of their appeals before this court, that:

1. The trial court erred in striking and not considering Plaintiffs' memorandum in opposition and opposition exhibits to the Defendant's motion for summary judgment.

2. The trial court erred in excluding the police reports from evidence as inadmissible hearsay.

3. The trial court erred in not [sic] finding that there were no material issues as to fact and that, as a matter of law, a summary judgment should be granted in favor of [D]efendant.³

4. The trial court erred in granting summary judgment in favor of Health Care unless and until such judgment was rendered final on appeal.⁴

STANDARD OF REVIEW

This court "must review summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law." Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638 (citing Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773). Accordingly, we must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(B).

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 judgment. 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.

Colson v. Johnson, 01-967, pp. 1-2 (La. App. 3 Cir. 12/12/01), 801 So.2d 648, 650, writ denied, 02-103 (La.3/22/02), 811 So.2d 939 (quoting Mercury Cellular Tel. Co. v. Calcasieu Parish of La., 00-318, p. 4 (La. App. 3 Cir. 12/13/00), 773 So.2d 914, 917, writ denied, 01-126 (La.3/16/01), 787 So.2d 314).

DISCUSSION

Timeliness of Opposition

In their first two assignments of error, Plaintiffs argue that the trial court erred in striking their memorandum in opposition and opposing exhibits to Rapides's motion for summary judgment. We disagree. Rapides filed its motion for summary judgment on September 8, 2006. The trial court originally set this...