Henry v. Gabriel's House of Events

196 So. 3d 117, 2015 La.App. 1 Cir. 1909, 2016 La. App. LEXIS 1125, 2016 WL 3126428
CourtLouisiana Court of Appeal
DecidedJune 3, 2016
DocketNo. 2015 CA 1909
StatusPublished
Cited by1 cases

This text of 196 So. 3d 117 (Henry v. Gabriel's House of Events) 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
Henry v. Gabriel's House of Events, 196 So. 3d 117, 2015 La.App. 1 Cir. 1909, 2016 La. App. LEXIS 1125, 2016 WL 3126428 (La. Ct. App. 2016).

Opinion

MCDONALD, J.

1 gThis is an appeal from a judgment sustaining a motion for summary judgment and dismissing the plaintiffs claims against the defendant.

FACTUAL AND PROCEDURAL BACKGÍROUND

The plaintiff, Vicky Henry, filed suit individually and on behalf of her minor daughter, Madison Henry, asserting that on September 15, 2012, the two attended a wedding reception at Gabriel’s House of Events (Gabriel’s House) in St. Gabriel, Louisiana where her daughter was injured. Ms. Henry asserted that Madison was walking along the top of a two-foot brick wall when she put her hand upon a brick- and-concrete column and the column fell, landing on her left foot and causing injury.

The petition named as defendants Gabriel’s House and its insurer, Scottsdale Insurance Company. Gabriel’s House was owned and operated by Aimee Ramirez Hebert. Ms. Hebert’s father, Don Ramirez, helped her at Gabriel’s House when he wasn’t working at his job as a pharmacist.

Madison suffered a fracture of the left foot and torn ligaments in her left leg from the incident. Ms. Henry, maintained that the accident was caused by the negligence and fault of Gabriel’s House in: creating a hazardous condition; having knowledge of the dangerous condition and failing to remedy it; allowing an unreasonably dangerous condition to remain for an unreasonable period of time; failing to take reasonable measures to prevent accidents; failing to rope off the area or provide [119]*119adequate warnings; failing to act reasonably under the circumstances; and other acts of fault or negligence to be shown at trial.

Ms. Henry maintained that Madison suffered past, present,.and future damages, including: permanent damage to her left foot and ligaments in her left leg from the accident; physical pain and suffering; disfigurement; mental anguish and emotional distress; loss of enjoyment of life; and medical and related expenses. |sMs. Henry asserted that she personally also suffered past, present, and future damages from the incident, including: pain and suffering; mental anguish and emotional distress; loss of enjoyment of life; lost wages; related expenses; and inconvenience.

The defendants answered the petition, asserting that there was no vice or defect in the premises; Ms. Henry was not entitled. to recover, as she was not injured in the incident; and further, that the plaintiff had failed to mitigate damages. The defendants averred that the sole and proximate cause of the accident was the contributory negligence of the plaintiff, in particular, climbing on a wall that was not intended for climbing; failing to take due care for her own health and safety; acting irresponsibly and recklessly; failing to supervise a minor child; and all acts of negligence that might be proven at the trial.

The . defendants filed a motion for summary judgment, asserting that there was no genuine issue of material fact that Gabriel’s House did not know and could not have known of the alleged defect in the wall’s construction. They maintained that the wall was built by Larry Johnson, a commercial mason and contractor, who was deceased. They further maintained that Mr. Ramirez helped out at Gabriel’s House, but was not an employee, and that he acted as a “gopher” for Mr. Johnson, but did not help with the composition or construction of the wall.

After a hearing, the trial court granted the defendants’ motion for summary judg-meñt, finding no genuine issue of material fact that Mr. Ramirez was not an employee or a servant of Gabriel’s House; and further, finding there was no genuine issue of material fact that the defendants had no actual or constructive knowledge of the alleged defective condition of the wall. By judgment dated October 15, 2015, Gabriel’s House and Scottsdale Insurance Company were dismissed from the suit with prejudice.

^ASSIGNMENTS OF ERROR

Ms. Henry appealed that judgment and makes the following assignments of error.

1. The trial court erred by holding Don Ramirez, who drafted the plans and ■ oversaw the construction of the concrete columns and wall which inr jured Madison Henry, was not an employee and/or servant of Gabriel’s House of Events, LLC.

2. The trial court erred by holding Ga- . briefs House of Events, LLC did not have actual or constructive knowledge of the defective and unreasonably dangerous condition of the subject column.

STANDARD OF REVIEW

Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of matérial. fact, and whether the mover-appellant is entitled to judgment as a matter of law. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750.

[120]*120If the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adversé party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or moré elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence' of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966DC1).1

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, the plaintiff asserts that the trial court erred by holding that Mr. Ramirez was not an employee or servant of Gabriel’s House. The | [¡plaintiff maintains that Mr. Ramirez was intimately involved in the operation of Gabriel’s House even though he was not compensated. - v '

Masters and employers are answerable for the damage caused by their servants and overseers, in the exercise of the functions in which they are employed. La. C.C. art. 2320. A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control. Ermert v. Hartford Ins. Co., 559 So.2d 467, 476 (La.1990). In contrast, a non-servant agent contributes to the business of his employer, but he is not such a part of it that his physical acts and the time to. be devoted to the business are subject to control. Blanchard v. Ogima, 253 La. 34, 215 So.2d 902, 907 (1968).

Ms. Henry cites Whetstone v. Dixon, 616 So.2d 764 (La.App. 1 Cir.), writs denied, 623 So.2d 1333 (La.1993), in support of her case. In Whetstone, an unpaid deacon of a church, who sat on the Board of Deacons, was at fault in a motor vehicle accident. The deacon was on the way to pick up materials for a remodeling project at the church. The trial court found that the church was not vicariously liable for the deacon’s tortious conduct. On appeal, this court reversed, finding that the deacon was more than just a casual volunteer and that he held an important leadership position in the church. Thus, this court held that the church was vicariously liable for the deacon’s action as a servant of the church. Whetstone, 616 So.2d at 771-72.

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196 So. 3d 117, 2015 La.App. 1 Cir. 1909, 2016 La. App. LEXIS 1125, 2016 WL 3126428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-gabriels-house-of-events-lactapp-2016.