APRIL GRANT AND OURELIA MANCHESTER v. BAYSIDE SENIOR PROPERTIES LLC AND XYZ INSURANCE COMPANY (2025)

In this premises liability case, plaintiffs/appellants, April Grant and Ourelia Manchester, appeal the summary judgment granted in favor of defendant, Bayside Senior Properties, LLC, dismissing their claims against it with prejudice. For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

Plaintiffs/appellants, Ms. Grant and Ms. Manchester, were on the nursing staff at United Medical Health West – New Orleans, LLC d/b/a United Medical Rehab Hospital, a rehabilitation hospital in Gretna, Louisiana, in the course and scope of their employment, when on December 3, 2020, each of them slipped on clear liquid hand soap that had leaked out of an allegedly defective dispenser affixed to the wall of patient Room 139. Ms. Manchester entered the patient's room and slipped and fell first; Ms. Grant slipped and fell next after she entered the room to respond to Ms. Manchester's call for help and as she was helping Ms. Manchester off the floor. Each of them allegedly sustained injuries and were transported to the emergency room at Ochsner Medical Center – West Bank Campus for treatment. According to the appellate record, both have received workers’ compensation benefits from their employer, United Medical.

Plaintiffs filed suit against Bayside Senior Properties on December 3, 2021, claiming that Bayside Senior Properties owned and maintained the building housing United Medical Rehab Hospital, and had actual knowledge of the defective soap dispenser because it had installed soap dispensers in the patient rooms operated by United Medical, and thus was liable to plaintiffs for their injuries and damages.

On July 12, 2023, the trial court set a trial date of May 8, 2024, and issued a pretrial order specifying that discovery “shall” be completed at least ninety days prior to trial. Bayside Senior Properties moved for summary judgment on February 7, 2024, arguing that the uncontroverted evidence established that Bayside Senior Properties neither installed the soap dispenser at issue, nor had actual or constructive knowledge of any condition that may have led to plaintiffs’ injuries. Plaintiffs filed a motion to continue the hearing on the motion for summary judgment, arguing that it was premature.¹ Plaintiffs also filed an opposition to the motion for summary judgment on the merits, attaching each plaintiff's workers’ compensation “First Report of Injury or Illness” as exhibits. In reply, Bayside Senior Properties argued that plaintiffs failed to attach any evidence that showed Bayside Senior Properties had actual or constructive knowledge of the condition of the premises in question, and that plaintiffs’ attachments were not competent summary judgment evidence as per La. C.C.P. art. 966.

The motion for summary judgment came for hearing on March 25, 2024. At the conclusion of the hearing, the court orally granted the motion for summary judgment. The court signed a judgment on March 27, 2024, dismissing plaintiffs’ claims against Bayside Senior Properties with prejudice. This timely appeal followed.

On appeal, plaintiffs argue that the motion for summary judgment was premature because one of the plaintiffs was still actively treating, plaintiffs’ request to depose Bayside Senior Properties’ representatives was denied, and plaintiffs were lulled into a false sense of security by defendant's “false claims” that it was interested in settling. Plaintiffs also argue that the judgment was in error because genuine issues of material fact remain, precluding judgment as a matter of law. Finally, plaintiffs argue that Bayside Senior Properties spoliated the evidence, giving rise to an adverse presumption that the soap dispenser was defective.

In its opposition brief, Bayside Senior Properties argues that plaintiffs have not shown that they will be able to carry their burden of proof at trial that Bayside Senior Properties had actual or contructive knowledge of the condition that led to plaintiffs’ injuries. It argues that: 1) the uncontroverted evidence establishes that it neither installed the soap dispenser, nor had any knowledge of any condition leading to plaintiffs’ injuries; 2) plaintiffs mispresent the record regarding discovery; and 3) plaintiffs’ allegations regarding settlement negotiations are unsupported by the record and are inadmissible.

LAW AND ANALYSIS

“After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). “The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” La. C.C.P. art. 966(D)(1).

A decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Bach v. Bd. of River Port Pilot Comm'rs, 15-765 (La. App. 5 Cir. 5/12/16), 193 So.3d 355, 362.

In a premises liability claim, the plaintiff must prove that the thing was in the defendant's custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage, and that the defendant knew or should have known of the defect. Mentel v. Margavio, 21-739 (La. App. 5 Cir. 11/16/22), 353 So.3d 312, 317, citing La. C.C. art. 2317.1.²

When a motion for summary judgment is made and supported with affidavits, depositions, and/or answer to interrogatories, the adverse party may not rest merely on the allegations or denials contained in the pleadings. Renaudin v. Bosworth, 23-98 (La. App. 5 Cir. 5/17/23), 367 So.3d 116, 121-22, writ denied, 23-00845 (La. 10/10/23), 371 So.3d 453. Argument of counsel and briefs, no matter how artful, are not sufficient to raise a genuine issue of material fact. Allegations without substance will not support, or refute, a summary judgment. Id.

On appeal, our review of summary judgments is de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Bryant v. Ray Brandt Dodge, Inc., 19-464 (La. App. 5 Cir. 3/17/20), 292 So.3d 190, 195. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La. App. 5 Cir. 11/29/11), 78 So.3d 849, 852.

Genuine Issues of Material Fact

Plaintiffs argue that genuine issues of material fact remain. They argue that the evidence submitted overwhelmingly proves that there was liquid soap on the floor at the time of the accident. From the record on appeal, it is clear that this issue is not disputed. Plaintiffs also argue that “Bayside” was responsible for maintaining the soap dispenser. As shown below, a review of the evidence supporting Bayside Senior Properties’ motion for summary judgment shows otherwise.

The evidence attached to Bayside Senior Properties’ motion for summary judgment, which was unobjected to and unrefuted, established the following facts. The affidavit of Eric Wahlen, an officer of Bayside Senior Properties and the facility administrator of Bayside Senior Care, LLC, d/b/a Bayside Healthcare Center, established that Bayside Senior Properties owns the premises located at 3201 Wall Boulevard in Gretna, Louisiana. Bayside Senior Properties had no employees. Bayside Senior Care, a separate entity, leased the building from Bayside Senior Properties. United Medical Health West – New Orleans, LLC d/b/a United Medical Rehab Hospital, leased Unit B of the building from Bayside Senior Care, operating a rehabilitation hospital in that unit. Pursuant to a Support Service Agreement between Bayside Senior Care and United Medical, Bayside Senior Care provided United Medical Rehab Hospital with dietary, laundry, housekeeping, and maintenance support services. Bayside Senior Properties provided no services to United Medical Rehab Hospital and did not provide any housekeeping or maintenance services to Unit B, the premises where the incidents occurred. Bayside Senior Properties did not install any hand soap dispensers in patient rooms at United Medical Rehab Hospital, and had no role in their maintenance. Mr. Wahlen also attested that the soap dispensers in the patient rooms at United Medical Rehab Hospital were installed by A&L Supplies at the request of and payment by Bayside Senior Care, and that Bayside Senior Properties did not contract therefor with A&L Supplies.

Brian Perez, Director of Plant Operations of and employed by Bayside Senior Care, attested that in February of 2020, hand soap dispensers were obtained from and installed by A&L Supplies in all patient rooms at United Medical Rehab Hospital. He attested there were no records, reports, memorandum, work orders/tickets, notices, or emails regarding problems with or maintenance of the soap dispensers, including the one in Room 139 at United Medical Rehab Hospital. After he was made aware of plaintiffs’ incidents on December 3, 2020, out of an abundance of caution, he personally changed out the hand soap dispenser in Room 139 on December 4, 2020. He attested that at that time, it was working properly with no leaks present. Finally, he attested that he was not and has never been an employee of Bayside Senior Properties, and that Bayside Senior Properties had no involvment with the purchase, installation, or maintenance of the hand soap dispensers that were installed at United Medical Rehab Hospital.

Latesa Waters attested that she was employed by Bayside Senior Care as the Director of Housekeeping. She had never been an employee of or affiliated with Bayside Senior Properties. Bayside Senior Properties had no role in the housekeeping of the patient rooms within Unit B of the premises, operated by United Medical as United Medical Rehab Hospital. On December 3, 2020, the day of the incidents, she had cleaned Room 139 according to her usual procedures at around 3:30 p.m., and at no time observed any hazardous condition, including liquid soap or any other foreign substance on the floor. On the day following the incidents, she personally inspected the soap dispenser in Room 139 and discovered no drips, leaks, or other defects in it, and furthermore found that there was still soap in the dispenser. At no time prior to December 3, 2020 did she have any knowledge of defects, leaks, or problems of any type with any of the soap dispensers in United Medical Rehab Hospital's patient rooms, including Room 139.

Bayside Senior Properties also attached deposition excerpts from several people who worked at United Medical Rehab Hospital and were present in or near Unit B when the incidents occurred.³ Taniko Jones, a co-worker of plaintiffs’, was in the next room at the time of the incidents. She described hearing, but not seeing, Ms. Manchester fall. When she saw Ms. Manchester on the floor, she yelled for help, and Ms. Grant, Ms. Tanya Thornton, and Ms. Summara Green responded. Next, Ms. Grant fell. Ms. Jones saw the soap on the floor. She did not know who installed the soap dispenser.

Tanya Thornton, the Director of Nursing at United Medical Rehab Hospital, testified in her deposition that she responded to the incident in Room 139, but did not witness Ms. Manchester fall. She was in the room briefly, but stepped out of the doorway at Ms. Grant's request to allow Ms. Grant to assist Ms. Manchester off of the floor. She turned her back to speak to someone, and did not witness Ms. Grant fall to the floor. She, along with Ms. Green and another employee, assisted Ms. Grant off of the floor. She did not know who installed the soap dispenser or how long it had been on the wall.

Rochelle D. LaFrance, who was the unit secretary, testified in her deposition that she had knowledge of the incidents, as she entered the room shortly after Ms. Manchester fell, and saw Ms. Grant fall. She testified that her duties did not include any housekeeping, nor had she ordered soap or installed it in the dispenser. She understood that “housekeeping” would refill the dispensers.

Summara Green, the night shift charge nurse, was at work that night and reported to Ms. Thornton. She did not see Ms. Manchester fall, but did see Ms. Grant fall. She got a towel and cleaned up the soap from the floor. She testified that she was not assigned to patient care in Room 139; Ms. Manchester was. She did not know who installed the soap dispensers, or when they were installed. She was unaware of any problems with the soap dispensers.

Jeanne Dufour testified in her deposition that she was the Human Resources coordinator for United Medical Rehab Hospital. She did not witness either plaintiff fall. She had no prior knowledge of the soap dispenser leaking. She testified that the soap dispensers were installed by Bayside Healthcare, the host facility. She had no knowledge if anyone with Bayside Senior Properties, Bayside Senior Care, or United Medical had prior knowledge of the leaking soap dispenser. She was told by a Mr. McDowell, a United Medical employee, that the bag inside the dispenser that contained the soap was punctured, which caused the soap to leak, rather than a defect in the dispenser. She testified that United Medical's maintenance department worked in conjunction with Bayside Healthcare, and they collaborated when making repairs, etc. She had no personal knowledge of whether anyone with Bayside Senior Properties or Bayside Senior Care knew about the leaking soap dispenser.

In their opposition to the motion for summary judgment, plaintiffs argued that based on information and belief, “Bayside was responsible for maintenance, cleaning[,] etc., of the United Health Care suite and had new soap dispensers installed in all of the patient's rooms.” Plaintiffs do not specify which “Bayside” they refer to.⁴ Therefore, plaintiffs argued, “Bayside” was negligent in the maintenance of the “United Health Care” facility, and “had notice of the defect in the dispenser because they are the party that had the dispenser installed.”

Upon de novo review, from the evidence submitted, we find that no genuine issue of material fact remains regarding the presence of the soap on the floor. The witnesses’ affidavits and depositions referenced above establish this fact, and Bayside Senior Properties does not contest it.

Although plaintiffs argue that “Bayside” was responsible for maintaining the soap dispenser, plaintiffs did not specify which “Bayside” entity they mean: defendant Bayside Senior Properties, or Bayside Senior Care, who is not a defendant. Furthermore, none of the affiants or deposed witnesses testified that Bayside Senior Properties had any responsibility for installing or maintaining the soap dispensers. Eric Wahlen and Brian Perez specifically attested that Bayside Senior Properties had no responsibility for installing or maintaining the soap dispensers, nor did Bayside Senior Properties have any housekeeping or maintenance responsibilties in Unit B, operated by United Medical.

Plaintiffs argue that the witness testimony by Ms. Waters and the nurses, that the soap was likely on the floor between the last room cleaning at 3:30 p.m. and when Ms. Manchester entered the room at the evening shift change around 6:00 p.m., establishes both negligence (an unattended patient room) and constructive knowledge of the condition. However, plaintiffs have failed to counter Bayside Senior Properties’ thoroughly established facts that it did not have actual or constructive knowledge of the condition, as it had no responsibility for installing or maintaining the soap dispensers, nor did it have any housekeeping or maintenance responsibilties in Unit B, operated by United Medical. Nor have plaintiffs shown that Bayside Senior Properties had any responsibililty to enter patient rooms operated by United Medical.

In its reply to plaintiffs’ opposition, Bayside Senior Properties pointed out that the exhibits plaintiffs attached to their opposition to the motion for summary judgment—the workers’ compensation “accident reports”—are not competent summary judgment evidence as per La. C.C.P. art. 966(A)(4), which provides that the only documents that may be filed in opposition to a motion for summary judgment are “pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, certified copies of public documents or public records, certified copies of insurance policies, authentic acts, private acts duly acknowledged, promissory notes and assignments thereof, written stipulations, and admissions,” none of which the accident reports are, as well as being hearsay. Bayside Senior Properties also argued this at the hearing on the motion. It does not appear that the trial judge addressed this issue prior to ruling in Bayside Senior Properties’ favor.

Upon review, we find that plaintiffs’ attachments to their opposition were not, in fact, competent summary judgment evidence as per La. C.C.P. art 966(A)(4). In any event, the “accident reports” do not in any way refute Bayside Senior Properties’ comprehensive and competent summary judgment evidence that Bayside Senior Properties had no actual or constructive knowledge of the condition, and therefore the trial court's consideration of plaintiffs’ attachments, if in fact it did, did not prejudice Bayside Senior Properties.

In conclusion, we find no merit to plaintiffs’ contention that genuine issues of material fact remain regarding Bayside Senior Properties’ actual or constructive knowledge of the subject condition, as required by La. C.C. art. 2317.1. As Bayside Senior Properties has also shown that it is entitled to judgment as a matter of law, we conclude that the trial court did not err in granting Bayside Senior Properties’ motion for summary judgment and in dismissing plaintiffs’ claims against it with prejudice.

Spoliation of Evidence

The theory of “spoliation of evidence” generally refers to an intentional destruction of evidence for the purpose of depriving opposing parties of its use. Warren v. HDI Global Insurance Company, 21-570 (La. App. 5 Cir. 5/16/22), 341 So.3d 1249, 1254, writs denied, 22-01002 (La. 11/1/22), 349 So.3d 5 and 22-00938 (La. 11/1/22), 349 So.3d 10. The remedy for spoliation is that the court may either exclude the spoiled evidence or allow the jury to infer that the spoiled evidence was unfavorable to the spoliator's case. Tomlinson v. Landmark American Ins Co., 15-276 (La. App. 4 Cir. 3/23/16), 192 So.3d 153, 160.

Plaintiffs argue that the admitted removal of the soap dispenser by Brian Perez, Director of Plant Operations of and employed by Bayside Senior Care, was an act of spoliation. A fatal flaw in plaintiffs’ argument is that plaintiffs have not shown that Mr. Perez is employed by defendant Bayside Senior Properties. Bayside Senior Properties and Bayside Senior Care are separate entities. Bayside Senior Properties has no employees. Plaintiffs have not shown that Mr. Perez's actions, as an employee of Bayside Senior Care, are attributable to defendant Bayside Senior Properties. Therefore, there is no merit to the spoliation claim.

Incomplete Discovery

Plaintiffs also argue that the motion for summary judgment was premature, as discovery was not complete, and was made in bad faith, as plaintiffs had been lulled into a false sense of security by Bayside Senior Properties’ “false claims” that it was interested in settling the case. Plaintiffs admit in brief, however, that discovery was “substantially” complete.

Plaintiffs argue that they requested to take the depositions of two Bayside Senior Properties representatives, to which Bayside Senior Properties objected, and the objection has unduly prejudiced them. In opposing plaintiffs’ motion to continue the hearing on the motion for summary judgment, Bayside Senior Properties argued that the matter had been pending since 2021, and plaintiffs did not request any depositions until after the discovery deadline of February 8, 2024. On appeal, Bayside Senior Properties argues that plaintiffs had more than enough time to seek depositions, and further that their February 9, 2024 request to depose “a Bayside representative who is familiar with this case,” an individual that plaintiffs failed to identify, was untimely.

There is no absolute right to delay action on a motion for summary judgment until discovery is completed. Flowers v. Wal-Mart Stores, Inc., 12-140 (La. App. 5 Cir. 7/31/12), 99 So.3d 696, 702. The mere contention of an opponent, that he lacks sufficient information to defend a summary judgment motion and that he needs additional time to conduct discovery, is insufficient to defeat the motion. Williams v. A Day to Remember Invitations, L.L.C., 06-757 (La. App. 5 Cir. 3/13/07), 956 So.2d 30, 33. Given the conclusory statements made by plaintiffs, and the timeline presented by Bayside Senior Properties, which is evident in the record, we find no merit to plaintiffs’ contention that the motion for summary judgment was filed or heard prematurely.

Settlement Negotiations

Finally, concerning plaintiffs’ allegations regarding settlement negotiations, that they were lulled into a false sense of security by defendant's “false claims” that it was interested in settling, we find that pursuant to La. C.E. art. 408(A), any such allegations are not admissible to prove liability for or invalidity of a claim or its amount, and any evidence of conduct or statements made in compromise negotiations are likewise not admissible.⁵ Accordingly, plaintiffs’ arguments in this regard are without merit.

CONCLUSION

DECREE

Upon de novo review, we conclude that plaintiffs’ assignments of error are without merit.

The trial court's judgment, which granted summary judgment in favor of defendant Bayside Senior Properties, LLC, dismissing plaintiffs’ claims against it with prejudice, is affirmed.

AFFIRMED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. TRAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MAY 28, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

CURTIS B. PURSELL CLERK OF COURT

24-CA-601

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)

LAURIE W. MASCHEK (APPELLANT)

DOUGLAS R. KRAUS (APPELLEE)

SUSANNAH C. MCKINNEY (APPELLEE)

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JOHN J. RABALAIS (APPELLEE)

ATTORNEY AT LAW

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FOOTNOTES

1.   The record does not contain a specific ruling on the motion for continuance; however, the court apparently implicitly denied the motion for continuance by going forward with the hearing on the motion for summary judgment.

2.   La. C.C. art. 2317.1 provides, in pertinent part:The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

3.   Bayside Senior Properties also attached the deposition excerpts of plaintiffs, Ms. Manchester and Ms. Grant. Neither plaintiff had any information regarding who installed the soap dispensers or who was responsible for their maintenance. Ms. Manchester testified that the incidents occurred at the time of the evening shift change, or approximately 6:00 p.m.

4.   The opposition refers to United Medical Rehab as “United Health Care,” which is not the entity's correct name.

5.   La. C.E. art. 408(A) provides, in pertinent part:Civil cases. In a civil case, evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, anything of value in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. ․

JUDE G. GRAVOIS JUDGE