Estate of Loveless Ex Rel Loveless v. Gay

945 So. 2d 233, 2006 WL 3615690
CourtLouisiana Court of Appeal
DecidedDecember 13, 2006
Docket41,575-CA
StatusPublished
Cited by9 cases

This text of 945 So. 2d 233 (Estate of Loveless Ex Rel Loveless v. Gay) 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
Estate of Loveless Ex Rel Loveless v. Gay, 945 So. 2d 233, 2006 WL 3615690 (La. Ct. App. 2006).

Opinion

945 So.2d 233 (2006)

ESTATE OF Margaret LOVELESS, Deceased, Thru the Administrator, Tim LOVELESS, et al., Plaintiffs-Appellants
v.
Jesse Hunter GAY and HCA Health Services of Louisiana dba North Monroe Medical Center, Defendants-Appellees.

No. 41,575-CA.

Court of Appeal of Louisiana, Second Circuit.

December 13, 2006.

*234 Hayes, Harkey, Smith & Cascio, L.L.P. by C. Joseph Roberts, III, Monroe, for Plaintiffs-Appellants.

John B. Hoychick, Rayville, for Defendant-Appellee, Jesse Hunter Gay.

Ungarino & Eckert L.L.C. by Brian D. Smith, Christopher B. Joffrion, Shreveport, J. Michael Nash, for Defendant-Appellee, HCA Health Services of Louisiana, Inc. dba North Monroe Medical Center.

Before STEWART, GASKINS and LOLLEY, JJ.

GASKINS, J.

The plaintiffs, the heirs and the estate of Margaret Loveless, appeal a grant of summary judgment in favor of the defendant, North Monroe Medical Center (NMMC). For the reasons set forth below, we affirm.

FACTS

In October 2004, Mrs. Loveless was a patient at NMMC undergoing rehabilitation following hip replacement surgery. On the evening of October 16, 2004, a 1969 Ford pickup truck operated by Jesse Hunter Gay left a curved portion of Old Sterlington Road adjacent to NMMC, crossed a ditch, a parking lot, and a curb. *235 The vehicle crashed through the wall of Mrs. Loveless' hospital room, striking her and causing fatal injuries. The plaintiffs allege that Mr. Gay was intoxicated at the time of the accident.

In September 2005, the plaintiffs filed suit against Mr. Gay and NMMC, alleging both negligence and strict liability claims against NMMC. The strict liability claims under La. C.C. art. 2317.1 were based on the argument that the medical center was geographically located at a site unreasonably susceptible to such accidents and that the medical center was not designed or constructed to protect occupants from this danger. The plaintiffs also alleged that NMMC knew or should have known of the vice, defect or ruin of the physical structure and had experienced similar events in the past.

NMMC denied the plaintiffs' allegations, and subsequently filed a motion for summary judgment. NMMC argued in its motion for summary judgment that the question before the court was one of duty; NMMC phrased the issue as follows:

[T]he court must decide if there is foreseeability in law of an injury to a person inside a building by being struck by a motor vehicle operated by an intoxicated driver who left the roadway, traveling more than three hundred feet, out of control, crossing a ditch, striking a tree, crossing a curb, a parking lot, another curb, striking a light pole, and then striking the side of a building.

NMMC argued that such a scenario was not "foreseeable in law," and that the hospital had no duty to protect Mrs. Loveless from the actions of Jesse Gay.

In support of the motion for summary judgment, NMMC attached the deposition of Officer Jeffrey L. Sanders of the Monroe Police Department who investigated the accident. Officer Sanders' deposition testimony essentially corroborated the factual statements in NMMC's motion for summary judgment concerning the manner in which the accident occurred and Mr. Gay's apparent intoxication. Several photographs of the accident scene, an offense report, and a crime lab report on Mr. Gay's blood alcohol level were attached to Officer Sanders' deposition testimony.

The plaintiffs filed an opposition to the motion for summary judgment, making arguments concerning both the procedural posture of the case and the substantive issues. As to the procedural posture, the plaintiffs stated that they had obtained a police report showing a prior similar incident in which a vehicle had left the roadway and struck the hospital in July 1996. The report was attached to the plaintiffs' opposition to the motion for summary judgment. The plaintiffs argued that, despite NMMC's denial regarding prior incidents, the information obtained from the Monroe police department confirmed that the accident involving Mrs. Loveless was not the first instance in which a vehicle failed to negotiate the curve by the hospital and collided with NMMC's building.

Because discovery was not complete, the plaintiffs urged that summary judgment was premature. They attached the affidavit of Tim Loveless, the administrator of Mrs. Loveless' estate, stating that investigation and discovery were ongoing and that he desired his counsel to fully investigate the prior incident to determine whether NMMC took appropriate action to remove patients from "the plausible trajectory path of vehicles that fail to negotiate the Old Sterlington Road curve or, alternatively remove patients from the risk area of the hospital facility." The plaintiffs stated that discovery was only beginning in the case, that there had been no requests to set the matter for trial, and that there were no established discovery deadlines.

*236 NMMC responded with a motion to strike the administrator's affidavit, as well as a police report from July 1996 concerning the other alleged incident. NMMC attacked the affidavit because it was not based on personal knowledge; NMMC also attacked the police report which it characterized as "hearsay within hearsay."

The minutes of court from March 29, 2006, indicate that on that date the motion for summary judgment was taken up and argued, the court granted the motion to strike the police report, and granted summary judgment in favor of NMMC. However, the minutes also specify that the parties declined to have the proceeding recorded by a court reporter. Thus, a transcript of the summary judgment hearing is not part of the record on appeal. Furthermore, while the court's written judgment on the motion for summary judgment indicates that the court considered the pleadings, evidence and argument of counsel, the judgment does not indicate any part of the court's reasoning, and there are no written reasons for judgment.

The plaintiffs appealed the trial court judgment, arguing that the trial court erred in granting summary judgment in favor of NMMC, particularly where discovery was not complete. They also argue that the trial court erred in striking the police report indicating a similar prior accident at NMMC.

POLICE REPORT

We reject the plaintiffs' argument that the trial court erred in striking the police report concerning another accident in 1996. On motions for summary judgment, supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967. Personal knowledge means something which a witness actually saw or heard, as distinguished from something a witness learned from some other person or source. Shelter Insurance Company v. Broan-Nutone, LLC & CBC, Inc., 39,625 (La.App.2d Cir.5/11/05), 902 So.2d 1146, writ denied, XXXX-XXXX (La.12/16/05), 917 So.2d 1112. A police report does not comply with La. C.C.P. art. 967 requiring that supporting and opposing affidavits shall be made on personal knowledge. Charlot v. Alabama Great Southern Railroad Company, XXXX-XXXX (La.App. 4th Cir.6/24/98), 716 So.2d 906, writ denied, 1998-2007 (La.10/30/98), 728 So.2d 387. The plaintiffs failed to provide an affidavit or deposition testimony of the police officer who authored the report or other witnesses, in support of their opposition to the motion for summary judgment.

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