Hutchinson v. KNIGHTS OF COLUMBUS, NO. 5747

• Decision Date: 20 February 2004
• Docket Number: No. 2003-C-1533.,2003-C-1533.
• Citation: 866 So.2d 228
• Parties: Earline HUTCHINSON v. KNIGHTS OF COLUMBUS, COUNCIL NO. 5747, Rebel Amusements Rides, Inc., and St. Paul Fire and Marine Insurance Company.
• Court: Louisiana Supreme Court

866 So.2d 228

Earline HUTCHINSON v. KNIGHTS OF COLUMBUS, COUNCIL NO. 5747, Rebel Amusements Rides, Inc., and St. Paul Fire and Marine Insurance Company.

No. 2003-C-1533.

Supreme Court of Louisiana.

February 20, 2004.

Thomas R. Hightower, Jr., PLC, Thomas R. Hightower, Lafayette, Jr., Patrick Wade Kee, for applicant.

The Law Offices of Darleen M. Jacobs, Darleen Marie Jacobs, Alfred A. Sarrat, Jr., Robert A. Preston, Jr., New Orleans, for respondent.

WEIMER, Justice.¹

We granted a writ in this matter to consider whether, in a case involving a trip and fall at a festival, the court of appeal's reversal of a summary judgment was contrary to statutory provisions and established jurisprudence. After review, we conclude the court of appeal did not err.

FACTS AND PROCEDURAL BACKGROUND

During March of 1998, David M. and Earline Hutchinson visited the Crawfish Festival in Chalmette, Louisiana. They entered the festival grounds between two amusement rides and exited the same way. As they were leaving, Mrs. Hutchinson tripped and fell on electric cables that were being used to power the rides.

Mrs. Hutchinson filed this personal injury action against the Knights of Columbus, Council No. 5747(KCs); Rebel Amusement Rides, Inc. (Rebel); and St. Paul Fire and Marine Insurance Company (St.Paul). Her petition alleges the defendants were negligent in allowing the electric cable lines that serviced an amusement ride to cross a "pedestrian walkway" without being painted yellow or without proper caution signs in the area where the cables were located.

After taking the plaintiff's deposition, defendants moved for summary judgment. In support of their motion, they filed portions of plaintiff's deposition testimony. Mrs. Hutchinson stated she entered and exited the festival grounds on the pavement "between two rides." She looked for an entrance but did not see one; she and her husband entered where they saw other people going through the "ride areas." When exiting, she tripped on a "bundle of [black] cables" that were piled together and were running across the "path of the pavement." She did not know if the cables were "piled together ... sitting on top of each other" or were running next to each other.

Also in support of their motion for summary judgment, defendants filed an affidavit by Korklyn Thibodeaux, Rebel's office manager. He attested the area where plaintiff fell "was not a pedestrian walkway, but rather was an area designated for the placement of electrical ... cables, necessary to provide electrical power to the midway." Thibodeaux further stated there were "sufficient designated walkways at the Crawfish Festival to allow for ingress and egress ... including a designated entrance and exit." Most importantly, the affidavit states "[t]hat at the time of the alleged fall, barricades were in place for the purpose of restricting access to the area where plaintiff claims to have sustained injury.... [I]n order for plaintiff to have accessed the area ... she would have had to circumvent the barricade, which restricted access to the non-pedestrian area."

In response to defendants' motion and the accompanying affidavit, plaintiff filed affidavits that she and her husband executed. The Hutchinsons stated they looked for an entrance to the fairgrounds and, seeing none, followed others onto the fairgrounds between the two rides. Both stated: "We did not have to cross any barricades to enter or exit the festival. The barricades I saw surrounded individual rides. There were no barricades across any of the pedestrian pathways. There was nothing to keep anyone from walking between any of the rides."

The plaintiff and her husband also attested to statements made at the scene of the fall by Charles Deubler, the KCs' Grand Knight and festival safety coordinator. Mr. Hutchinson stated: "Charles Deubler Sr. came to the scene and ... said ['] I told these people about these wires. I am going to stand here until someone comes and covers up these wires so no one else will trip on them.'" Mrs. Hutchinson stated: "Charles Deubler Sr. came to the scene and ... said the cables should not have been where they were. The cables should have been covered and out of the pathway."

Additionally, in opposition to defendants' motion for summary judgment, plaintiff filed excerpts from her deposition that corroborated the references to Deubler's alleged statements contained in her affidavit. In her deposition she testified the safety coordinator "was fussing about" the cables. "He said they ... shouldn't have been there, they should be covered and out of... the pathway." Plaintiff stated Deubler told her he had been safety coordinator for 18 years and that he had to "make sure that everything is safe and no one gets injured."

Defendants, in turn, responded to the plaintiff's opposition by filing an affidavit by Deubler. He, too, stated the area where Mrs. Hutchinson fell had been "designated" as the area for the electrical cables and that there were barricades cordoning off the area of the fall from the public which plaintiff would have had to "circumvent" in order to enter and exit there. Further, Deubler admitted going to the scene of the fall but attested "[t]hat the electrical cords, wires, and/or cables complained of by plaintiff were properly laid out in the designated area in a neat and safe fashion." (Emphasis supplied.) Deubler's description of the cables—that the cables posed no safety hazard—is contrary to the admission the Hutchinsons claim he made—that the cables were not in a safe position. However, Deubler's affidavit does not specifically deny making the statements attributed to him by the Hutchinsons at the scene of the accident.

Despite the fact the issue of barricades was first raised in Thibodeaux's affidavit, after plaintiff's deposition, the trial court found that "[a]lthough plaintiff attempted to present an affidavit on behalf of herself, the Court found same to be totally self-serving, in contradiction of sworn deposition testimony and therefore, disregarded." Apparently on the ground that defendants' motion for summary judgment was insufficiently opposed, the trial court granted the motion.

The court of appeal rejected defendants' complaint that the plaintiff's affidavit was inconsistent with her deposition testimony. Concluding there were genuine issues of material fact disputed by the parties, the court of appeal reversed the summary judgment and remanded the case for further proceedings.

DISCUSSION

Summary judgment:

Defendants' threshold argument to this court is two-fold: first, that the court of appeal erred in considering the plaintiff's affidavit because the issue of the affidavit's admissibility was not properly before that court; and second, that the plaintiff's affidavit contradicted her deposition testimony and was correctly disregarded by the trial court according to the jurisprudence.

A motion for summary judgment will be granted "if 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." (Emphasis supplied.) LSA-C.C.P. art. 966(B). Affidavits in support of or in opposition to motions for summary judgment must be filed into evidence at the hearing on the motion or filed into the record in order for the affidavits to be part of the record on appeal. LSA-C.C.P. art. 966; Hopper v. Crown, 560 So.2d 890, 892 (La.App. 1 Cir.1990). Mrs. Hutchinson's affidavit, filed into the record as part of her opposition to defendants' motion for summary judgment, was part of the record on appeal which the court of appeal could consider. Thus, there was no "admissibility" question on appeal as defendants now assert.

Further, defendants' assertion that it was necessary for plaintiff to specifically urge as error in the court of appeal the trial court's disregarding of her affidavit is without merit. We agree with plaintiff that her assignment of error challenging the summary judgment as improperly granted was broad enough to encompass the argument that her affidavit was improperly disregarded. In its de novo review of the record², the appellate court was free to look at the evidence afresh and decide for itself whether to disregard the affidavit, without deference to what the trial court did in this regard. Thus, the first prong of defendants' threshold argument is without merit.

Nor is there merit to the second prong of defendants' threshold argument: that plaintiff's affidavit contradicted her deposition testimony. The court of appeal correctly analyzed the allegedly conflicting statements, as follows:

Specifically, the defendants complain that, in her deposition, the plaintiff testified that she entered and left the festival "between two rides" and that, in her affidavit, the plaintiff states that she entered on a "pedestrian walkway".[³] Actually, the plaintiff's affidavit specifically states that she and her husband "walked into the festival between two rides". Thus, the affidavit and the deposition are not inconsistent.

Hutchinson v. Knights of Columbus, Council No. 5747, 02-1817, p. 3 n. 1 (La. App. 4 Cir. 5/7/03), 847 So.2d 665, 667 n. 1.

Despite this analysis by the appellate court, in brief to this court defendants rely on a statement in George v. Dover Elevator Company, 02-0821, pp. 4-5 (La.App. 4 Cir. 9/25/02), 828 So.2d 1194, 1197, writ denied, 02-2641 (La.12/13/02), 831 So.2d 992, that an inconsistent affidavit offered only after the filing of a motion for summary judgment is insufficient to create a genuine issue of material fact where no justification for the inconsistency is offered.⁴ Although this is a correct statement of the jurisprudence cited in George, it is inapplicable where the affidavit and the deposition testimony are not inconsistent. Thus, the trial court should not have rejected plaintiff's affidavit.⁵

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