McCastle-Getwood v. Professional Cleaning Control

170 So. 3d 218, 2014 La.App. 1 Cir. 0993, 2015 La. App. LEXIS 108, 2015 WL 402718
CourtLouisiana Court of Appeal
DecidedJanuary 29, 2015
DocketNo. 2014 CA 0993
StatusPublished
Cited by12 cases

This text of 170 So. 3d 218 (McCastle-Getwood v. Professional Cleaning Control) 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
McCastle-Getwood v. Professional Cleaning Control, 170 So. 3d 218, 2014 La.App. 1 Cir. 0993, 2015 La. App. LEXIS 108, 2015 WL 402718 (La. Ct. App. 2015).

Opinion

GUIDRY, J.

Un this negligence action, plaintiff, Peggy McCastle-Getwood,1 appeals from a judgment of the trial court granting summary judgment in favor of defendant, Professional Cleaning Control (Professional), and dismissing her claims against it with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 26, 2011, Ms. McCastle, an employee of K-Mart Corporation (K-Mart) at its store in Mandeville, Louisiana, arrived for work just prior to 8:00 a.m. Ms. McCastle entered the front of the store, walked to the rear of the store to place her personal belongings in a locker in the employee break room, and then proceeded [220]*220back to the front of the store, with a cup of coffee, to clock in at the check-out register and report for work at the customer service desk. On her way to the customer service desk, Ms. McCastle slipped and fell.

On March 14, 2012, Ms. McCastle filed a petition for damages, naming Professional as a defendant and asserting that she sustained an injury when she slipped and fell as a result of a liquid substance being left on the floor by an employee of Professional, the company subcontracted to clean the floors of K-Mart’s Mandeville store. K-Mart subsequently filed a petition for intervention, asserting that as Ms. McCas-tle’s employer, it had paid medical expenses and workers’ compensation benefits to Ms. McCastle as a result of the accident and that, under the provisions of the Louisiana Workers’ Compensation Act, it is entitled to recover any and all workers’ compensation and medical benefits it has paid to Ms. McCastle by preference and priority out of the proceeds of any judgment.

|sThereafter, on September 18, 2013, Professional filed a motion for summary judgment, asserting that because Ms. McCastle testified in her deposition that she did not see how the alleged liquid substance got on the floor and did not know how long the alleged substance was on the floor before she slipped, she cannot prove that Professional owed any duty to her under these facts nor that if any duty was owed, that Professional breached that duty. As such, Professional asserted that Ms. McCastle and K-Mart cannot carry their burden of proof at trial and that it is entitled to judgment as a matter of law. Professional attached excerpts of Ms. McCastle’s deposition to its motion for summary judgment.

The hearing on Professional’s motion was set for November 20, 2013. Ms. McCastle, however, did not file an opposition to Professional’s motion for summary judgment until November 18, 2013.2 Ms. McCastle asserted that the motion is premature because she has not completed discovery. Ms. McCastle also attached a copy of her personal affidavit to the opposition. Professional filed a reply to Ms. McCastle’s opposition, objecting to the late-filed opposition in violation of District Court Rule 9.9, objecting to the late-filed affidavit in violation of La. C.C.P. art. 966(B), and objecting to Ms. McCastle’s affidavit testimony as contradictory to her prior deposition testimony. Ms. McCastle filed a reply brief on November 19, 2013, one day prior to the scheduled, hearing date, reiterating that the motion for summary judgment should be denied because she has not completed discovery. However, the trial court found that the brief was not timely, since the hearing on Professional’s motion was set for the following day.

On the date set for the hearing on Professional’s motion for summary judgment, neither Ms. McCastle nor her counsel appeared for the hearing. The transcript of the hearing and court minute entry reflect that, regardless of the |4presence of Ms. MeCastle’s counsel, the trial court was not going to permit him to present oral argument because Ms. McCastle’s opposition was not filed timely.3 After brief argu[221]*221ment by counsel for Professional, the trial court granted summary judgment in favor of Professional. The trial court subsequently signed a judgment granting Professional’s motion for summary judgment and dismissing Ms. McCastle’s and K-Mart’s claims against it with prejudice. Ms. McCastle and K-Mart now appeal from the trial court’s judgment.

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. Johnson v. Evan Hall Sugar Cooperative, Inc., 01-2956, p. 3 (La.App. 1st Cir.12/30/02), 836 So.2d 484, 486, A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, 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)(2).

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is añ absence of factual support for one or more elements essential to the adverse party’s, claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his [.^evidentiary burden of proof at trial. 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. La. C.C.P. art. 966(C)(2).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La.App. 1st Cir.12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La.6/15/07), 958 So.2d 1199. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Smith v. Kopynec, 12-1472, p. 4 (La.App. 1st Cir.6/7/13), 119 So.3d 835, 837.

A review of Ms. McCastle’s petition shows that her claims against Professional sound in negligence. Louisiana Courts have adopted a duty-risk analysis in determining whether to impose liability under general negligence principles. Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La.3/10/06), 923 So.2d 627, 632-633. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or protection element); and (5) the actual damages (the damage element). McIntyre v. St. Tammany Parish Sheriff, 02-0700, p. 7 (La.App. 1st Cir.3/28/03), 844 So.2d 304, 309.

Ms. McCastle asserts in her petition that an employee of Professional left [222]*222an unknown liquid substance on the floor, which caused her to slip and fall on her j (jback. Ms.

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170 So. 3d 218, 2014 La.App. 1 Cir. 0993, 2015 La. App. LEXIS 108, 2015 WL 402718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccastle-getwood-v-professional-cleaning-control-lactapp-2015.