Simon v. Hillensbeck, 2012–CA–0087.
| Decision Date | 19 September 2012 |
| Docket Number | No. 2012–CA–0087.,2012–CA–0087. |
| Citation | 100 So.3d 946 |
| Parties | Melissa A. SIMON and Clarence L. Kenny, Jr., Individually, on their own Behalf, and as the Tutrix and Under–Tutor of Antonio Dominique Kenny and Antonio Dominique Kenny, and William L. Crull, III and Edward J. Lilly, as Specially–Appointed Attorneys on Behalf of Antonio Dominique Kenny v. Bertha HILLENSBECK and Harry J. Hillensbeck Individually and d/b/a The Hummingbird Hotel and Grill and The Hummingbird Hotel; and Hummingbird Hotel, Inc.; and Allstate Insurance Company, as the Insurer of the Foregoing Defendants; and, Kong Wong, Harry Wong and Charlie W. Tong, and ABC Insurance Company. |
| Court | Court of Appeal of Louisiana — District of US |
100 So.3d 946
Melissa A. SIMON and Clarence L. Kenny, Jr., Individually, on their own Behalf, and as the Tutrix and Under–Tutor of Antonio Dominique Kenny and Antonio Dominique Kenny, and William L. Crull, III and Edward J. Lilly, as Specially–Appointed Attorneys on Behalf of Antonio Dominique Kenny
v.
Bertha HILLENSBECK and Harry J. Hillensbeck Individually and d/b/a The Hummingbird Hotel and Grill and The Hummingbird Hotel; and Hummingbird Hotel, Inc.; and Allstate Insurance Company, as the Insurer of the Foregoing Defendants; and, Kong Wong, Harry Wong and Charlie W. Tong, and ABC Insurance Company.
No. 2012–CA–0087.
Court of Appeal of Louisiana,
Fourth Circuit.
Sept. 19, 2012.
[100 So.3d 947]
Edward J. Lilly, Crull, Castaing & Lilly, New Orleans, LA, for Plaintiffs/Appellants, Amanda S. Hammond, Jessica L. (Simon) Dudley, Shaina (Simon) Fountain, Natasa (Simon) Holden, Maranda Marie Kenny, Kelly Simon and Melissa Simon, on behalf
[100 So.3d 948]
of the minor children, Richard C. Vangelder and Christina A. White.
William R. Forrester, Jr., Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendant/Appellee, Kong Wong.
(Court composed of Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
JAMES F. McKAY III, Judge.
[4 Cir. 1]The plaintiffs/appellants 1 appeal the judgment of the trial court granting the defendant, Kong Wong' s, motion for summary judgment. The appellants failed to sustain their burden of proof pursuant to La.C.C.P. art. 966(C)(2). For the reasons that follow, we affirm the trial court's judgment.
FACTS AND PROCEDURAL HISTORYOn August 20, 1995, at approximately 12:35 a.m., Antonio Dominique Kenny (“Antonio”), the two-year old son of Clarence L. Kenny and Melissa A. Simon, fell from a building located at 800 St. Charles Avenue and Julia Street known as the Hummingbird Hotel. As a result of this fall, Antonio suffered severe and permanent disabling injuries.2 On August 19, 1996, Clarence Kenny and Melissa Simon filed a petition for damages against Bertha Hillensbeck, Harry J. Hillensbeck, the Hummingbird Hotel, Inc., and the owners of the leased premises, Kong Wong, his brothers, Harry Wong and Charlie W. Tong. By supplemental petition, filed on July 14, 1999, Loretta Wong Fonseca, Jonathan Wong, Steven [4 Cir. 2]Wong and Michael Wong, alleged to be the heirs of the late Harry Wong were added as additional defendants.3 Frances Chuy Wong, alleged to be the wife of Harry Wong, was also added as an additional defendant.4
In their petition for damages, Clarence Kenny and Melissa Simon alleged that Antonio's fall was an accident caused by a defect in the premises, “... as a result of broken, inadequate, or dangerous door, locks, windows, fire escapes and other appurtenances of the building.” The appellants assert that the child fell from “a window or fire escape on an upper floor of the hotel portion of the Hummingbird Hotel and Grill.” They also assert that at the time of the accident they were both working at the Hummingbird Grill located on the “ground floor of the premises”, and that their five children, ages seven and younger, were sleeping on either the second or third floor of the Hummingbird Hotel. They further alleged that they would check on the children “approximately every 15–20 minutes to see that they continued to sleep and conditions were satisfactory.” At approximately 12:45 a.m., Melissa Simon allegedly checked on the children and found that Antonio was missing from the room. Specifically, in paragraph XI of the original petition, the plaintiffs alleged:
“... Antonio Dominique Kenny got up from his bed and went from the hotel room out into the hallway, through a door which could not be locked, due to a broken latch; and, thereafter, the said child walked down a hall, descended a short flight of stairs, proceeded through an open fire door which should have
[100 So.3d 949]
been closed, and ultimately entered a room from which the hall door may have been missing. Then, the said child [4 Cir. 3]apparently went out an open window, which window was unprotected, was very low to the floor and constituted a hazard or attractive nuisance. Then the minor child was on the fire escape and thereafter fell onto the street below ...”
On August 2, 2011, the Wongs filed a motion for summary judgment, asserting that the plaintiffs could not sustain their burden of proof pursuant to La.C.C.P. art. 966(C)(2). In support of their motion for summary judgment, the Wongs submitted the depositions of Elsie Gatterer (maiden name Elsie Knapp), an eye witness to the accident, and New Orleans Police Department Officer Granville Summers, the accident investigator, as well as a copy of the commercial lease of the building entered into by the Wongs and the Hummingbird Hotel, Inc.
Ms. Gatterer, the only known eye-witness to Antonio's fall, testified that her vantage point was the Kinko's print shop, where she was working the night shift on the evening of the incident.5 She testified in that she was working at a copy machine by the window facing Julia Street when she saw an object falling which initially looked like a doll or poodle. She was unaware of how or where the fall initiated. However, after the object hit the street she immediately looked up and saw an unknown male on the fire escape. She then apprised her co-worker, Michelle Varrone, of the situation, who then immediately ran into the street where she identified the falling object as a small child. Ms. Gatterer simultaneously called 911. The phone operator asked her to see if the child was breathing. She told him he was. She also testified that as advised by 911 responders, she kept everyone away from the child until the 911 responders could arrive on the scene. [4 Cir. 4]Ms. Gatterer testified that a man who appeared to be the child's father, Clarence Kenny, arrived on the scene and began talking to the child. He appeared to be the same person she saw on the fire escape just after she saw the child falling.
Later that night, Officer Granville Summers, from the New Orleans Police Department (“NOPD”), child abuse division, was summoned to the scene of the accident. He arrived on the scene after the child had been taken to the hospital. Officer Summers determined that Antonio lived with his parents, Clarence Kenny and Melissa Simon, and four siblings, all under seven years of age, in Apartment A–6, an apartment on the other side of the building from where the child fell. Clarence Kenny and Melissa Simon were both employees at an all-night bar and grill on the ground floor of the building known as the Hummingbird Bar and Grill. Officer Summers determined after interviewing Clarence Kenny that he was Antonio's father. On the night of the incident, Officer Summers walked through the building with Clarence Kenny and observed the location of Apartment A–6. He concluded that Antonio, a two-year old child, could not have traversed through several flights of stairs, heavy closed doors and windows which were between his parents' apartment in the building and the Julia Street side of the building alone. After his investigation, he could not determine from which floor the child fell or the trajectory of the fall. However, he did conclude that at the time of the incident the child was with his father, Clarence Kenny, despite the father's denial. Officer Summers speculated that
[100 So.3d 950]
the child's fall may have been the result of a criminal act by Clarence Kenny. He testified in his deposition that “[O]ne of the issues was [4 Cir. 5]whether or not the child fell or whether or not the child was pushed or thrown.” As a result of his suspicion of criminal misconduct, he arrested Clarence Kenny and Melissa Simon for cruelty to a juvenile.6 Subsequently,...
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