D'Angelo v. Guarino

88 So. 3d 683, 2010 La.App. 4 Cir. 1555, 2012 La. App. LEXIS 304, 2012 WL 762971
CourtLouisiana Court of Appeal
DecidedMarch 9, 2012
DocketNo. 2010-CA-1555
StatusPublished
Cited by42 cases

This text of 88 So. 3d 683 (D'Angelo v. Guarino) 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
D'Angelo v. Guarino, 88 So. 3d 683, 2010 La.App. 4 Cir. 1555, 2012 La. App. LEXIS 304, 2012 WL 762971 (La. Ct. App. 2012).

Opinions

TERRI F. LOVE, Judge.

|]The plaintiff fell and sustained injuries to her right ankle on the Guarino’s property. She alleges that the Guarino’s and the construction company breached a duty to her because the step she utilized to exit the residence was higher than codal requirements prescribe. All of the defendants filed motions for summary judgment, which the trial court granted. We dismissed the plaintiffs original appeal because the record lacked both motions for summary judgment, supporting memo-randa, exhibits, and reply memoranda. However, the Louisiana Supreme Court remanded the matter for record supplementation and consideration. After supplementation and consideration, we find that no genuine issues of material fact exist as to the legal causation of the plaintiffs injuries because the plaintiff failed to provide a scintilla of evidence that the alleged extra height of the step was the cause-in-fact of her injuries based on the facts and circumstances of this case. Therefore, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Brandy D’Angelo exited the exterior side doorway of Mandy1 and Eugenio Guarino’s residence on July 11, 2004, and, after a flat footfall, broke her ankle. 12Specifically, Ms. D’Angelo suffered from a right tibial plafond and lateral malleolus fracture of the right leg and ankle. Ms. D’Angelo’s injuries resulted in multiple surgeries.

Ms. D’Angelo filed a petition for damages against the Guarinos, State Farm Fire and Casualty Company (“State Farm”), as their insurer, Terry Tedesco, Inc. (“TTI”), as the builder of the residence, and TTI’s insurer (collectively “Defendants”) alleging that the Defendants’ negligence was the proximate cause of her injuries. Ms. D’Angelo’s first supplemental and amended petition specifically named TTI’s insurer as North American Specialty Insurance Company (“NAS”).

The Guarinos filed a motion for summary judgment alleging that Ms. D’Angelo could neither prove that the step was defective, nor the remaining components of premises liability. TTI also filed a motion for summary judgment stating that Ms. D’Angelo “cannot offer any explanation or evidence how this ½ inch to 1 inch alleged codal deviation caused any damage.” The trial court granted the Defendants’ motions for summary judgment. However, Ms. D’Angelo filed a motion to vacate judgment and alternatively for a new trial.

The trial court then vacated the judgments, finding that “the standard used to determine if plaintiff had asserted evidence concerning causation of the plaintiffs injury had been incorrectly applied to Dr. Frederick Keppel’s testimony.” The trial court ordered additional memoranda from all parties for consideration prior to its next judgment. After consideration of the memoranda, the trial court granted the Guarinos’ motion for summary judgment and dismissed all of Ms. D’Angelo’s claims. The trial court granted TTI’s motion for summary judgment in part, but denied the motion for summary judgment in part based upon contractor immunity. |sHowever, the trial court dismissed all of [686]*686Ms. D’Angelo’s claims against TTI and NAS. Ms. D’Angelo’s devolutive appeal followed.

This Court dismissed Ms. D’Angelo’s devolutive appeal because the appellate record lacked the motions for summary judgment, related memoranda, attached exhibits, and replies to oppositions to the motions for summary judgment upon which the trial court’s judgment was based. D’Angelo v. Guarino, 10-1555 (La. App. 4 Cir. 5/18/11), 66 So.3d 536, writ granted, 11-1558 (La.10/07/11), 71 So.3d 300. The Louisiana Supreme Court granted a writ of certiorari and remanded the case for further proceedings. D’Angelo v. Guarino, 11-1558 (La.10/07/11), 71 So.3d 300. This Court then ordered that the parties supplement the record for full consideration.

STANDARD OF REVIEW

Dispositions of motions for summary judgment are reviewed using the de novo standard of review “under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate.” Wilson v. Calamia Constr. Co., 11-0639, p. 3 (La.App. 4 Cir. 9/28/11), 74 So.3d 1198, 1200.

The summary judgment “procedure is favored and shall be construed” to “secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969.” La. C.C.P. art. 966(A)(2). “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). “After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue |4as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” La. C.C.P. art. 966(C)(1).

The mover bears the burden of proof. La. C.C.P. art. 966(C)(2). “However, if the movant,” as in the case sub judice, “will not bear the burden of proof at trial,” the movant must “point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art. 966(C)(2). “The burden of proof does not shift to the party opposing summary judgment until the moving party presents a prima facie case that no genuine issues of material fact exist.” Wilson, 11-0639, p. 3, 74 So.3d at 1200. “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

The Louisiana Supreme Court stated that:

A “genuine issue” is a “triable issue.” Toups v. Hawkins, 518 So.2d 1077, 1079 (La.App. 5th Cir.1987) (citing Brown [v. B & G Crane Service, Inc., 172 So.2d 708 (La.App. 4th Cir.1965) ], supra). More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.”
[[Image here]]
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). “[Fjacts are material if they potentially insure or preclude recovery, affect a liti[687]*687gant’s ultimate success, or determine the outcome of the legal dispute.” South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991), writs denied, 596 So.2d 211 (La.1992).

Hayes v. Autin, 96-287, p. 5 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, 694, quoting Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 5730, 751. The Louisiana Supreme Court also expounded upon the burden of proof on a motion for summary judgment by stating that the mover:

can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Greenup v. Roosevelt
267 So. 3d 138 (Louisiana Court of Appeal, 2019)
McNeil v. Trosclair
265 So. 3d 29 (Louisiana Court of Appeal, 2019)
Shane R. Pierce, Et Ux v. Irma M. Rodriguez
Louisiana Court of Appeal, 2018
McKeogh v. Healthcare Indem., Inc.
250 So. 3d 1064 (Louisiana Court of Appeal, 2018)
Levine v. Allstate Ins. Co.
243 So. 3d 1286 (Louisiana Court of Appeal, 2018)
State on behalf of Maria B. & Renee B. v. Kyle B.
298 Neb. 759 (Nebraska Supreme Court, 2018)
Williams v. Louie Street Apartments, Inc.
229 So. 3d 944 (Louisiana Court of Appeal, 2017)
Indulge Island Grill, L.L.C. v. Island Grill, L.L.C.
220 So. 3d 154 (Louisiana Court of Appeal, 2017)
Williams v. Archer Western Construction, LLC
203 So. 3d 325 (Louisiana Court of Appeal, 2016)
Alvarez v. Touro Infirmary
187 So. 3d 592 (Louisiana Court of Appeal, 2016)
Brown v. Diagnostic Imaging Services, Inc.
173 So. 3d 1168 (Louisiana Court of Appeal, 2015)
Citron v. Gentilly Carnival Club, Inc.
165 So. 3d 304 (Louisiana Court of Appeal, 2015)
Williams v. Mathieu
155 So. 3d 54 (Louisiana Court of Appeal, 2014)
Lawrence v. Government Employees Insurance Co.
151 So. 3d 917 (Louisiana Court of Appeal, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
88 So. 3d 683, 2010 La.App. 4 Cir. 1555, 2012 La. App. LEXIS 304, 2012 WL 762971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dangelo-v-guarino-lactapp-2012.