CHARLES PICERNI NO. 23-CA-449
VERSUS FIFTH CIRCUIT
SUMMIT HOTEL PROPERTIES LLC, D/B/A COURT OF APPEAL MARRIOTT RESIDENCE INN, AND ABC INSURANCE COMPANY STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 781-296, DIVISION "B" HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING
May 15, 2024
MARC E. JOHNSON JUDGE
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson
AFFIRMED MEJ SMC JGG COUNSEL FOR PLAINTIFF/APPELLANT, CHARLES PICERNI Vanessa Motta
COUNSEL FOR DEFENDANT/APPELLEE, RESIDENCE INN BY MARRIOTT, LLC Christopher P. Lawler Roger A. Javier JOHNSON, J.
Plaintiff/Appellant, Charles Picerni, appeals the trial court’s March 21, 2023
summary judgment in favor of Defendant/Appellee, Residence Inn by Marriott,
LLC (hereinafter referred to as “Marriott”), that dismissed his action filed in the
24th Judicial District Court, Division “B”, for alleged damages sustained during a
fall on Marriott’s property. For the following reasons, we affirm the trial court’s
summary judgment.
FACTS AND PROCEDURAL HISTORY
The relevant facts pertaining to this appeal are as follows:
On March 5, 2018, Mr. Picerni filed a petition for damages against Marriott
and its insurer. In his petition, Mr. Picerni asserted that on March 9, 2017, he
visited a friend at the Marriott location at Three Galleria Boulevard in Metairie,
Louisiana. Mr. Picerni claimed that, while he was waiting for his friend to arrive,
he went to sit on a chair1 located in the patio area, and the bottom cushion of the
chair slid out as he sat down, causing him to fall forward. He alleged that Marriott
was liable to him under La. C.C. arts. 2315, 2317.1 and 2322, and, consequently,
he sought damages for the alleged injuries he sustained during that fall. In
opposition, Marriott filed an answer, denying Mr. Picerni’s allegations.
Mr. Picerni filed a motion for partial summary on February 23, 2022,
wherein he sought summary judgment in his favor on the issue of medical
causation. He contended the uncontroverted evidence showed that the injuries he
sustained and the corresponding treatments he underwent were related to the
March 9th accident. Marriott opposed the motion and argued that Mr. Picerni’s
1 In Mr. Picerni’s deposition, he described the piece of furniture as a “couch kind of sectional.” However, both parties refer to the piece of furniture as a “chair” in their briefs. For continuity, the opinion will refer to the piece of furniture as a “chair.”
23-CA-449 1 exhibits2 were inadmissible and deficient. It further argued that Mr. Picerni’s
motion was premature because discovery was incomplete at the time the motion
was filed.
On February 25, 2022, Marriott filed its own motion for summary judgment,
asserting Mr. Picerni could not state any set of facts to show the chair had a defect
that presented an unreasonable risk of harm or that it knew or should have known
of the alleged unreasonable risk of harm. It argued that an inspection of the chair
after the accident revealed the chair was not structurally defective, broken, or
damaged before, during, or after the alleged accident; and there was no visible
defect or damage to the chair. Marriott sought dismissal of Mr. Picerni’s action
with prejudice. In response, Mr. Picerni argued that Marriott’s former employee,
Jody Burton, admitted in a video recorded the day of the accident that the chair-at-
issue collapsed frequently, thereby giving Marriott sufficient notice, knowledge,
and liability of the defective chair. He also disputed the admissibility of Marriott’s
exhibits.3 In a reply memorandum, Marriott objected to the admission of the video
of Mr. Burton, arguing that Mr. Picerni failed to show Mr. Burton was unavailable;
no affidavit or deposition to authenticate the video had been presented; and, Mr.
Burton’s statements in the video were mischaracterized.
Mr. Picerni’s and Marriott’s summary judgment motions were heard before
the trial court on March 8, 2023. At the conclusion of the hearings, the trial court
2 Mr. Picerni attached the affidavits of Dr. Eric Lonseth, an expert in the field of pain management, and Dr. Michelle LeBlanc, an expert in the field of chiropractic care, to his motion for partial summary judgment. Marriott contested the affidavits on the basis that they were not executed in the presence of a notary. 3 Among the exhibits attached to Marriott’s motion for summary judgment were Mr. Picerni’s deposition; Mr. Picerni’s responses to interrogatories and requests for production; an affidavit of Erik Johnson, an expert in the field of engineering; an affidavit of Martha Bullock, the Manager of the Residence Inn where the alleged incident occurred; and, an affidavit of Chris A. Van Ee, an expert in the field of biomechanical engineering. Mr. Johnson’s affidavit attested that the subject chair was not structurally defective, broken, and/or damaged before, during, or after the alleged accident. Ms. Bullock’s affidavit attested that the subject chair had never been defective, damaged, or broken, and no other incidents concerning the chair had been reported. Mr. Picerni contested that the affidavits of Ms. Bullock and Mr. Johnson and argued they were inadmissible because the statements were unreliable and were not based upon personal knowledge. Mr. Picerni further argued that Ms. Bullock was not identified as a witness during discovery.
23-CA-449 2 allowed the admission of the affidavits of Martha Bullock and Erik Johnson, which
were attached to Marriott’s motion for summary judgment. It orally found that Ms.
Bullock’s affidavit was not vague and her reliability was not placed into question
by any evidence introduced. As for Mr. Johnson’s affidavit, the court found that
experts are allowed to formulate opinions through facts or data, and those facts do
not need to be admissible. The trial court excluded Mr. Picerni’s cell phone video
recording of Jody Burton from evidence for summary judgment purposes. The
court reasoned that the video was not properly authenticated by an affidavit or
deposition testimony. It also excluded Mr. Picerni’s supplemental memorandum in
opposition to Marriott’s motion for summary judgment on the basis that the
memorandum was untimely filed.4
After considering the exhibits deemed as admissible evidence,5 the trial court
orally found that Mr. Picerni did not produce factual support sufficient to establish
the existence of a genuine issue of material fact, and there was no evidence
indicating that Mr. Picerni could meet his burden of proving the chair was
defective or that Marriott knew or should have known of any alleged defect. The
court orally reasoned that Mr. Burton’s written statement and Mr. Picerni’s
testimony regarding the chair simply did not create an issue over which reasonable
persons could disagree. The court granted Marriott’s motion for summary
judgment and subsequently denied Mr. Picerni’s motion for partial summary
judgment as moot. Those rulings were subsequently rendered in a written
judgment issued on March 21, 2023. The written judgment dismissed Mr.
Picerni’s petition for damages with prejudice.
Mr. Picerni filed a motion for rehearing and/or new trial on March 27, 2023.
4 Mr. Picerni’s supplemental memorandum had Ms. Bullock’s deposition attached to it. 5 According to the recitation of evidence orally mentioned by the trial court, Ms. Bullock’s affidavit, Mr. Johnson’s affidavit, Mr. Picerni’s deposition, and Marriott’s discovery responses containing a written statement from Mr. Burton were considered. Mr. Burton wrote that he spoke with Mr. Picerni and explained that, in order for the seat to fall, the section of the cushion had to be misplaced or moved.
23-CA-449 3 He asserted that his action was erroneously dismissed in its entirety because the
trial court’s judgment was directed solely to his claims under La. C.C. arts. 2317
and 2317.1. He also asserted that the trial court improperly excluded Mr. Burton’s
videotaped admission that Marriott knew of the chair’s defects, in addition to
Marriott’s negligent inspection of the chairs. The hearing on Mr. Picerni’s motion
was held on June 20, 2023. The trial court denied Mr. Picerni’s motion for
rehearing and/or new trial in a written judgment rendered on July 7, 2023. The
instant appeal followed.
ASSIGNMENTS OF ERROR
On appeal, Mr. Picerni alleges the trial court legally erred by granting
Marriott’s motion for summary judgment because it: 1) failed to consider the
admission of Marriott’s employee, Jody Burton, that Marriott had actual
knowledge of the chair’s prior problems; 2) failed to find that Jody Burton’s
statement was an exception to the hearsay rule; 3) and erroneously considered the
affidavits of Martha Bullock and Erik Johnson.
LAW AND ANALYSIS
Jody Burton’s Statement6
Mr. Picerni alleges the trial court legally erred by excluding his videotaped
recording of Jody Burton’s statement as evidence for summary judgment purposes.
He argues that Mr. Burton, an employee of Marriott, admitted in the video that
Marriott was aware of the chair’s defects, which caused his fall and injuries. He
contends that Mr. Burton’s statement is not hearsay, pursuant to La. C.E. art. 801
(D)(2) and (D)(3)(d), because it is an admission of a breach of a duty made by a
representative of Marriott. He further contends that Mr. Burton’s statement
expressing there were problems with the chair squarely contradicts Ms. Bullock’s
6 Mr. Picerni’s assignments of error concerning Mr. Burton’s statement are interrelated and will be discussed together.
23-CA-449 4 assertion that the chair was never defective, broken, or damaged. Mr. Picerni avers
that Mr. Burton’s statement presented a genuine issue of material fact that Marriott
knew or should have known about the defect or vice in the chair, precluding
In response, Marriott avers the trial court properly excluded the videotaped
recording of Mr. Burton’s statement because Mr. Picerni never authenticated the
video with an affidavit or deposition of someone who had personal knowledge of
the alleged incident. It further avers the video does not fall within the enumerated
category of admissible evidence under La. C.C.P. art. 966(A)(4).
The summary judgment procedure is designed to secure the just, speedy, and
inexpensive determination of every action and is favored. La. C.C.P. art.
966(A)(2). Appellate courts review summary judgments de novo under the same
criteria that govern the trial court’s consideration of whether summary judgment is
appropriate. Jefferson Par. Sch. Bd. v. TimBrian, LLC, 21-67 (La. App. 5 Cir.
10/20/21), 362 So.3d 691, 693, writ denied, 21-1725 (La. 1/12/22), 330 So.3d 629,
citing Stogner v. Ochsner Clinic Foundation, 18-96 (La. App. 5 Cir. 9/19/18), 254
So.3d 1254, 1257. Summary judgment shall be granted “if the motion,
memorandum, and supporting documents shows that there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of law.” Id. at
694, quoting La. C.C.P. art. 966(A)(3).
A material fact is one that potentially insures or prevents recovery, affects a
litigant’s ultimate success, or determines the outcome of the lawsuit. Populis v.
State Department of Transportation and Development, 16-655 (La. App. 5 Cir.
5/31/17), 222 So.3d 975, 980, writ denied, 17-1106 (La. 10/16/17), 228 So.3d 753,
quoting Pouncy v. Winn-Dixie La., Inc., 15-189 (La. App. 5 Cir. 10/28/15), 178
So.3d 603, 605. An issue is genuine if it is such that reasonable persons could
disagree. If only one conclusion could be reached by reasonable persons, summary
23-CA-449 5 judgment is appropriate as there is no need for trial on that issue. Id. Whether a
particular fact in dispute is material for purposes of summary judgment can only be
determined in light of the substantive law applicable to the case. Stogner, 254
So.3d at 1257, citing Jackson v. City of New Orleans, 12-2742 (La. 1/28/14), 144
So.3d 876, 882, cert. denied, 574 U.S 869, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014).
The party moving for summary judgment bears the burden of proof.
Stogner, supra, citing La. C.C.P. art. 966(D)(1). However, if the mover will not
bear the burden of proof at trial, the moving party must only point out that there is
an absence of factual support for one or more elements essential to the adverse
party’s claims. Id. Thereafter, the burden shifts to the adverse party to produce
factual support sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial. Id. If the adverse party fails to meet this burden, there is
no genuine issue of material fact, and the mover is entitled to summary judgment
as a matter of law. Id. Once the motion for summary judgment has been properly
supported by the moving party, the failure of the adverse party to produce evidence
of a material factual dispute mandates the granting of the motion. Id., citing Babin
v. Winn Dixie La., Inc., 00-78 (La. 6/30/00), 764 So.2d 37, 40. The decision as to
the propriety to grant a motion for summary judgment must be made with
reference to the substantive law applicable to the case. Vincent v. Nat’l Gen. Ins.
Co., 21-227 (La. App. 5 Cir. 10/13/21), 330 So.3d 378, 381.
In the lower court, Marriott asserted that Mr. Picerni could not set forth any
facts to show the chair had a defect that presented an unreasonable risk of harm, or
that Marriott knew or should have known of the alleged unreasonable risk of
harm.7 In order to determine whether summary judgment was properly granted in
7 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. Mental v. Margavio, 21-739 (La. App. 5 Cir. 11/16/22), 353 So.3d 312, 317.
23-CA-449 6 this matter, we must first determine whether any admissible evidence created a
genuine issue of material fact. The trial court excluded Mr. Picerni’s video from
evidence on the basis that there was no accompanying deposition or affidavit to
authenticate the video.
According to La. C.C.P. art. 966(A)(4), “[t]he only documents that may be
filed or referenced in support of or in opposition to the motion 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.” The court
may consider only those documents filed in support of or in opposition to the
motion for summary judgment and shall consider any documents to which no
objection is made.8 Id. Documents not included in the exclusive list provided in
La. C.C.P. art. 966(A)(4) are not permitted, unless they are properly authenticated
by an affidavit or the deposition to which they are attached. Dye v. LLOG
Exploration Company, LLC, 20-441 (La. App. 5 Cir. 11/3/21), 330 So.3d 1222,
1225. The trial court is given vast discretion in its evidentiary rulings, and its
decision to admit or exclude evidence will not be reversed on appeal in the absence
of an abuse of that discretion. Larios v. Martinez, 17-514 (La. App. 5 Cir.
2/21/18), 239 So.3d 1041, 1045.
In this matter, Marriott objected to the admission of Mr. Burton’s videotaped
statement, which was attached to Mr. Picerni’s opposition memorandum. As noted
8 This was the version of the Article in effect at the time the motions for summary judgment hearing were heard. The Article was amended by Act 2023, No. 317 § 1, effective August 1, 2023, and now states: The court shall consider only those documents filed or referenced in support of or in opposition to the motion for summary judgment but shall not consider any document that is excluded pursuant to a timely filed objection. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing whether the court sustains or overrules the objections raised.
23-CA-449 7 by Marriott, there was no affidavit or deposition testimony presented by Mr.
Picerni that properly authenticated the video. Consequently, because the video is
not included in La. C.C.P. art. 966(A)(4)’s exclusive list of admissible evidence
and was not authenticated, we find that the trial court properly excluded Mr.
Burton’s videotaped statement.
Separate from the admission of the videotape, Mr. Picerni argues that his
deposition testimony describing his conversation with Mr. Burton is admissible;
thus, his recounted statement of Mr. Burton that Marriott “had issues with it
before” is also admissible. Mr. Picerni avers that Mr. Burton’s statement is not
hearsay, pursuant to La. C.E. art. 801 (D)(2) and (D)(3)(d), because it is an
admission of a breach of a duty made by a representative of Marriott.
Marriott avers that any alleged statement made by Mr. Burton is
inadmissible because it does not constitute an admission against interest, and it is
mischaracterized by Mr. Picerni.9
“Hearsay” is defined as “a statement, other than one made by the declarant
while testifying at the present trial or hearing, offered in evidence to prove the truth
of the matter asserted.” Larios, 239 So.3d at 1045, citing La. C.E. 801(C). A
“statement” is defined, in pertinent part, as “[a]n oral or written assertion.” Id.,
citing La. C.E. art. 801(A)(1). La. C.E. art. 801(D)(2) states that a statement is not
hearsay if the statement is offered against a party and is: (a) his own statement, in
either his individual or a representative capacity; (b) a statement of which he has
manifested his adoption or belief in its truth; or (c) a statement by a person
authorized by him to make a statement concerning the subject. La. C.E. art.
801(D)(3)(d) provides that a statement is not hearsay if the statement is offered
9 Marriott also avers Mr. Picerni made no showing that Mr. Burton is unavailable. The trial court did not address Mr. Burton’s availability in its oral reasons and did not exclude Mr. Burton’s alleged statement on that basis. Therefore, we will not address whether Mr. Picerni made a showing that Mr. Burton is unavailable.
23-CA-449 8 against a party in a civil case when
a statement is made by a declarant when a right, title, or interest in any property or claim asserted by the party against whom it is offered requires a determination that a right, title, or interest exists or existed in the declarant during the time that the party now claims the declarant was the holder of the right, title, or interest, and when the statement would be admissible if offered against the declarant as a party in an action involving that right, title, or interest[.]
In his deposition, Mr. Picerni testified to the following discussion with Mr.
Burton,
or -- he was talking about, you know, either -- I don’t know if it’s -- I can’t say that it happened before, but he knew that it was something -- he said that it was something to the effect of that it should have been checked or, you know, they’ve had issues with it before, from his words.
When responding to whether he noticed any visual signs that the chair was not in
the correct position, Mr. Picerni later stated,
No, I didn’t. I didn’t. That’s why I think the employee had said that they should -- he said these things -- and I can’t remember were being -- when he said in the video where he said these things should be checked more often because evidently it happened or it had a propensity to happen.
Mr. Picerni argues that the above-cited excerpts are the statements of
admission that show Marriott knew or should have known of the alleged
unreasonable risk of harm regarding the use of the chair; ultimately, creating a
genuine issue of material fact. We disagree. While Mr. Burton was an employee
of Marriott at that time, Mr. Picerni’s narrative of Mr. Burton’s alleged statement
does not provide a clear admission that Marriott knew of a defect in the chair.
Accordingly, we find that the trial court properly excluded Mr. Burton’s alleged
statement to Mr. Picerni for summary judgment purposes.
Marriott’s Affidavits
Mr. Picerni alleges the trial court erroneously considered the affidavits of
Martha Bullock and Erik Johnson. He argues that neither affidavit contained
personal knowledge of the chair-at-issue. Specifically, he contends that Ms.
23-CA-449 9 Bullock’s affidavit contained no personal knowledge that the employees routinely
checked the chairs at the hotel for defects and damage, and the affidavit was
devoid of any personal knowledge of which chair caused his fall. He also contends
that Ms. Bullock was never identified as a witness prior to the submission of her
affidavit. In reference to Mr. Johnson’s affidavit, Mr. Picerni argues the affidavit
lacked personal knowledge because it relied upon information provided by Ms.
Bullock, particularly stating that no repairs or changes had been made to the
subject chair before or after the accident. He maintains that there is no possible
way Mr. Johnson could testify with any degree of certainty that the chair inspected
was the chair that caused his fall.
Marriott avers that Mr. Picerni’s objections to the affidavits of Ms. Bullock
and Mr. Johnson are meritless. It maintains Ms. Bullock attested that the subject
chair had been preserved, and a plain reading of Ms. Bullock’s affidavit reflects
that the chair to which she was referring was the subject chair. It further maintains
that Mr. Johnson specifically attested that he observed, inspected, and performed
tests on the chair that is the subject of this lawsuit. Marriott contends that Mr.
Picerni’s assertions—the chair was not routinely inspected or was not preserved—
have no basis in light of the admissible evidence in this matter. Additionally,
Marriott argues that Ms. Bullock was disclosed as a potential witness prior to the
close of discovery, and Mr. Picerni could have deposed her before the discovery
deadline but chose not to do so.
La. C.C.P. art. 1428(1) imposes a continuing affirmative duty on a party to
timely supplement discovery responses related to witnesses and experts. Guidry v.
Savoie, 15-809 (La. App. 5 Cir. 5/26/16), 194 So.3d 1184, 1193, writ denied, 16-
1218 (La. 10/17/16), 207 So.3d 1064, citing Chapman v. Reg’l Transit
Auth./TSMEL, 95-2620 (La. App. 4 Cir. 10/02/96), 681 So.2d 1301, 1305. When a
party discovers a new witness with knowledge of discoverable matters, he is
23-CA-449 10 required to make this information known to the adverse party. Id. This rule is
based on the fact that all parties to the litigation need to know both the identity of
the witnesses and the extent of their knowledge. Id. A party’s failure to uphold
this duty to timely supplement discovery responses may result in sanctions, such as
excluding the testimony from a witness not properly disclosed to the adverse party.
Id. In deciding whether to impose such a sanction, the trial court, as in all matters
of pre-trial discovery, is afforded vast discretion, and its rulings will not be
overturned, absent a clear abuse of that discretion. Id.
In this matter, Marriott attached Ms. Bullock’s affidavit to its motion for
summary judgment, which was filed on February 25, 2022. The discovery
deadline was set for March 3, 2022. Marriott did not identify Ms. Bullock as a
witness in their answers to interrogatories. After hearing Mr. Picerni’s arguments
as to why Ms. Bullock’s affidavit should not be allowed to testify, the trial court
chose not to sanction Marriott and exclude the affidavit. The court inherently
found Marriott’s notice of Ms. Bullock as a witness to be timely and/or that
Marriott should not have been subject to sanctions. After reviewing the record, we
cannot find that the trial court clearly abused its discretion on that evidentiary
ruling.
Ms. Bullock’s affidavit stated that she observed and inspected the chair in
which Mr. Picerni alleged that he fell, and the chair was not and had never been
defective, damaged, or broken. Mr. Johnson’s affidavit similarly stated that he
inspected and performed tests on the subject chair. Contrary to Mr. Picerni’s
assertions, the attestations by Ms. Bullock and Mr. Johnson denote some personal
knowledge of the chair-at-issue. Outside of argument, Mr. Picerni did not present
any admissible evidence to contradict the attestations of personal knowledge by
Ms. Bullock or Mr. Johnson. On the showing made, we cannot find that the trial
court erred in admitting the affidavits of Ms. Bullock and Mr. Johnson into
23-CA-449 11 evidence for summary judgment purposes.
DECREE
Upon de novo review of the admissible evidence and applicable law, we find
that there is no remaining genuine issue of material fact on whether the chair was
defective or whether Marriott knew or should have known of any alleged defect in
the chair. Marriott presented evidence that the subject chair was not defective,
while Mr. Picerni failed to present any admissible evidence sufficient to create a
genuine issue of material fact. We further find that Marriott is entitled to summary
judgment as a matter of law. Accordingly, we affirm the trial court’s summary
judgment in favor of Marriott and dismissal of Mr. Picerni’s action.
AFFIRMED
23-CA-449 12 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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