Collins v. Home Depot, U.S.A. Inc.

215 So. 3d 918, 16 La.App. 5 Cir. 516, 2017 WL 999469, 2017 La. App. LEXIS 420
CourtLouisiana Court of Appeal
DecidedMarch 15, 2017
DocketNO. 16-CA-516
StatusPublished
Cited by3 cases

This text of 215 So. 3d 918 (Collins v. Home Depot, U.S.A. Inc.) 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
Collins v. Home Depot, U.S.A. Inc., 215 So. 3d 918, 16 La.App. 5 Cir. 516, 2017 WL 999469, 2017 La. App. LEXIS 420 (La. Ct. App. 2017).

Opinion

CHAISSON, J.

|,Terry and Lainie Collins appeal from a trial court ruling that granted summary judgment in favor of ISS Facility Services, Inc. (“ISS Facility”). For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

This case arises from an accident that occurred on February 14, 2012, at a Home Depot store located in Gretna, Louisiana. In their petition for damages, Mr. and Mrs. Collins allege that while Mr. Collins was shopping in the store, he suddenly and without warning slipped and fell on a clear liquid substance that had been allowed to accumulate on the sales floor area. Mr. and Mrs. Collins filed suit against Home Depot on July 25, 2012. Subsequently, on June [920]*92025, 2014, they amended their petition to add ISS Facility as a defendant, alleging that it had a floor maintenance contract with Home Depot and was present in the store on the day of Mr. Collins’s fall and was therefore responsible for their damages. On July 25, 2014, Home Depot filed a motion for summary judgment on the basis that the plaintiffs could not meet their burden of proof to show that Home Depot either created or had actual or constructive notice of the condition which caused their damages. The trial court granted summary judgment in favor of Home Depot and dismissed plaintiffs’ suit against it with prejudice. That decision was affirmed by this Court on appeal.1

After Home Depot was dismissed from the litigation with prejudice, ISS Facility filed a motion for summary judgment on the basis that the plaintiffs’ filing of suit against it was untimely, and their claims had therefore prescribed. The trial court, finding that plaintiffs’ claims had prescribed, rendered judgment in favor of ISS Facility dismissing the claims against it with prejudice. This appeal followed.

|2On appeal, plaintiffs contend that all of the necessary criteria have been met in order that the filing of suit against ISS Facility “relates back” to the date on which suit was initially filed against Home Depot, and that their claims have therefore not prescribed and it was error for the trial court to grant summary judgment in favor of ISS Facility.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Bell v. Parry, 10-369 (La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. An issue is genuine if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue. Anny v. Babin, 12-164 (La.App. 5 Cir. 7/31/12), 99 So.3d 702, 705, writ denied, 12-1972 (La. 12/14/12), 104 So.3d 441.

Under La. C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party 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 claim, action, or defense. The nonmoving party must then produce factual support to | Sestablish that he will be able to satisfy his evidentiary burden of proof at trial. If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. art. 966(C)(2); Bobino v. Jefferson Transit, 12-468 (La.App. 5 Cir. 2/21/13), 110 So.3d 1123, 1125.

Appellate courts review a judgment granting or denying a motion for summary [921]*921judgment de novo. 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. 6 Cir. 11/29/11), 78 So.3d 849, 852.

In this case, the issue raised in ISS Facility’s motion for summary judgment is one of prescription. Delictual actions are subject to a liberative prescriptive period of one year, which commences to run from the date the injury is sustained. La. C.C. art. 3492. The burden of proof normally lies with the party asserting prescription; however, where the petition shows on its face that it has prescribed, the burden shifts to the plaintiff to prove that the prescriptive period has been interrupted or suspended. Monson v. Travelers Prop. & Cas. Ins. Co., 09-267 (La.App. 5 Cir. 12/8/09), 30 So.3d 66, 69. Plaintiffs amended their suit to add ISS Facility as a defendant on June 25, 2014, for injuries that they allege occurred on February 14, 2012, more than a year prior to adding ISS Facility as a defendant. Therefore, since their petition against ISS Facility is prescribed on its face, the burden shifted to the plaintiffs to establish that prescription had been interrupted or suspended.

Although plaintiffs timely filed suit against Home Depot, and interruption of prescription by suit against one solidary obligor or joint tortfeasor is effective as to all, that principle is not applicable where the defendant against whom suit was timely filed is ultimately found not liable to the plaintiff, since no joint or solidary | obligation would exist. Monson, 30 So.3d at 69. Unable to rely upon any alleged solidary obligation between Home Depot and ISS Facility, plaintiffs instead argue that the filing of suit against ISS Facility “relates back” to the date on which suit was initially filed against Home Depot.

La. C.C.P. art. 1153 provides that “[w]hen the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.” In Ray v. Alexandria Mall, 434 So.2d 1083 (La. 1983), the Louisiana Supreme Court set forth the criteria that must be met in order for an amendment that changes the identity of the party sued to relate back to the date of filing of the original petition, namely:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; and

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215 So. 3d 918, 16 La.App. 5 Cir. 516, 2017 WL 999469, 2017 La. App. LEXIS 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-home-depot-usa-inc-lactapp-2017.