Becker v. Jefferson Parish Hospital District No. 2

148 So. 3d 611, 14 La.App. 5 Cir. 88, 2014 WL 3734493, 2014 La. App. LEXIS 1879
CourtLouisiana Court of Appeal
DecidedJuly 30, 2014
DocketNo. 14-CA-88
StatusPublished

This text of 148 So. 3d 611 (Becker v. Jefferson Parish Hospital District No. 2) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Becker v. Jefferson Parish Hospital District No. 2, 148 So. 3d 611, 14 La.App. 5 Cir. 88, 2014 WL 3734493, 2014 La. App. LEXIS 1879 (La. Ct. App. 2014).

Opinion

ELLEN SHIRER KOVACH, Judge Pro Tempore.

^Plaintiffs, Mark B. Becker, Sr. and Kim Becker, appeal the granting of sum[612]*612mary judgment in favor of defendant, Jefferson Parish Hospital District No. 2, d/b/a East Jefferson General Hospital. For the reasons that follow, we affirm.

FACTS

On June 1, 2006, Mark B. Becker, Sr. slipped and fell on the floor at East Jefferson General Hospital where he was a patient following a motor vehicle accident. Mr. Becker and his wife, Kim Becker, thereafter filed a Petition for Damages on May 81, 2007, alleging that the hospital was liable for damages caused by its employees’ negligence in connection with the June 2006 accident. On February 11, 2008, the hospital filed an Answer generally denying the allegations and averring that the fall was caused by plaintiffs negligence. The hospital further averred that it did not have notice of any dangerous condition on the premises at the time of plaintiffs accident.

Following discovery, defendant filed a Motion for Summary Judgment on June 6, 2013, contending that plaintiff failed to show that the hospital had actual or | ..¡constructive notice of any unsafe condition on the floor and that the hospital acted unreasonably to find, discover, and correct the condition. The hospital did not dispute that plaintiff slipped and fell on a foreign substance while walking to the x-ray department. Defendant attached numerous exhibits to its motion, including plaintiffs medical records and plaintiffs answers to interrogatories.

On June 26, 2018, plaintiffs filed a Memorandum in Opposition to the Motion for Summary Judgment asserting that it is axiomatic that a party have both actual and constructive knowledge of a hazard caused by its own employees. Plaintiffs argued that based upon the uncontrovert-ed evidence, defendant, through one of its employees, “to a high degree of certainty” created the hazard which caused Mr. Becker’s fall. Plaintiffs contended that the fall occurred within the treatment area of the emergency department on the way to radiology, that hospital employees commonly used ultrasound gel or KY jelly in both of those locations, and that it would be extremely unlikely that a patient or family member would bring such substances into those areas. Plaintiffs asserted that those substances would not end up on the floor in the absence of negligence by hospital personnel, that clear slippery gel creates an obvious hazard especially since a pedestrian would not likely notice it, and that this case essentially amounted to res ipsa loquitur.

Plaintiffs attached several exhibits to its Memorandum in Opposition, including the depositions of plaintiff, Mr. Becker, and Addison Petitpan. In his deposition, plaintiff explained that he was in a motor vehicle accident, after which he went to East Jefferson General Hospital for treatment. While there, the doctor ordered x-rays. A woman came to get plaintiff, and he followed her out of the room. Plaintiff recalled that after they walked approximately twenty feet, he took a step with his right foot, which went forward, and then he fell to the ground. He |4said that he asked the woman what had happened, and she said, “Oh, there is ultrasound gel on the ground. That happens sometimes.” Plaintiff stated that the woman then said that she needed to get a towel to put over the gel and would call housekeeping to clean it up. He testified that the gel was a little bit to the left of the center of the hallway, and that he did not see the substance until after he slipped. Plaintiff explained that he did not know what he had slipped on until the woman told him. He further explained that the glob of gel was clear and approximately three inches in diameter. Plaintiff asserted that after he fell, the gel smeared and got on his right heel. The woman [613]*613subsequently came with a towel, wiped the bottom of his foot, and put the towel over the gel. Afterward, the woman assisted him up, and they walked into the x-ray department.

Mr. Petitpan testified in his deposition that he was responsible for overseeing the general operations of the hospital, but that on June 1, 2006, he was the supervisory nurse in the emergency department. Mr. Petitpan stated that he filled out a risk management report for the hospital in connection with the accident. He recalled that the event occurred at 7:00 p.m. when he was coming on duty. Mr. Petitpan also recalled that the x-ray technician on duty reported the incident to him; however, he was unsure of the identity of that individual and her name was not listed in the report. It was reported to him that a patient slipped and fell in the hallway leading from the emergency department to the x-ray department.

Mr. Petitpan testified that at the time of the accident, the area in question was not restricted and that visitors would have had access to that area. He stated that he went to the area where the fall occurred, assessed for anything slippery on the floor, and recorded, “surface wet, oil/food/ grease,” a choice provided by the drop down menu on the report. Mr. Petitpan recorded it in that fashion because the person who spoke to him was not certain what was on the floor. Additionally, Mr. | ¡¡Petitpan did not recall what he saw when he went to the scene of the fall. He testified that there was no cafeteria near that hallway and no source of oil or grease near that hallway. Mr. Petitpan further testified that ultrasound gel and KY jelly were used in the radiology and emergency departments. He did not recall whether the x-ray technician said it was her impression that the substance on the floor was ultrasound gel.

Additionally, Mr. Petitpan did not recall whether he spoke to the patient about this incident, but it would have been his practice to do so. However, he would have recorded the patient’s statement in his report, but the report did not contain such a statement. Mr. Petitpan explained that in 2006, if there was a slippery substance on the floor, the practice would have been to clean up the substance, and if housekeeping was needed, to call them so they could finish cleaning it up and put out a floor sign. He stated on the form that the patient denied any injury. Lastly, Mr. Petitpan asserted that no photographs were taken of the scene to his knowledge.

A hearing was held on July 3, 2013, after which the trial judge granted the Motion for Summary Judgment and dismissed plaintiffs’ lawsuit with prejudice. The trial judge found that plaintiffs had not established that the hospital had either actual or constructive notice of the substance that plaintiffs complained of as causing the fall. He also found that the instant case was very similar to Blount v. East Jefferson General Hospital, 04-407 (La.App. 5 Cir. 10/12/04), 887 So.2d 535. It is noted that on July 12, 2013, the trial judge ordered that the record of the hearing on defendant’s motion be supplemented with the exhibits submitted by both plaintiffs and defendants with their memoranda on said motion. Plaintiffs thereafter filed a timely motion for appeal.

| rJLAW AND DISCUSSION

On appeal, plaintiffs argue that the trial judge erred in granting summary judgment in favor of defendant.

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765. A motion for summary [614]

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Related

Blount v. East Jefferson General Hosp.
887 So. 2d 535 (Louisiana Court of Appeal, 2004)
Paternostro v. Wells Fargo Home Mortgage, Inc.
30 So. 3d 45 (Louisiana Court of Appeal, 2009)
Fontenot v. Patterson Insurance
23 So. 3d 259 (Supreme Court of Louisiana, 2009)
Hubbard v. Jefferson Parish Parks & Recreation
40 So. 3d 1106 (Louisiana Court of Appeal, 2010)
Hines v. Garrett
876 So. 2d 764 (Supreme Court of Louisiana, 2004)
Graff v. Jefferson Parish Hospital Service District No. 2
39 So. 3d 685 (Louisiana Court of Appeal, 2010)
Smith v. Our Lady of the Lake Hospital, Inc.
639 So. 2d 730 (Supreme Court of Louisiana, 1994)

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Bluebook (online)
148 So. 3d 611, 14 La.App. 5 Cir. 88, 2014 WL 3734493, 2014 La. App. LEXIS 1879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/becker-v-jefferson-parish-hospital-district-no-2-lactapp-2014.