Connelly v. Veterans Administration Hospital

Filing 49

ORDER AND REASONS granting #30 Motion for Summary Judgment; denying #45 Motion to Continue Trial. Signed by Judge Nannette Jolivette Brown on 5/15/2014. (my)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARY ALICIA CONNELLY

CIVIL ACTION

VERSUS

NO. 12-2660

VETERANS ADMINISTRATION HOSPITAL

SECTION: “G”(4)

ORDER AND REASONS
This litigation concerns a slip-and-fall at the VA Hospital in New Orleans, Louisiana. Before
the Court is Defendant the United States’ “Motion for Summary Judgment.”1 After considering the
pending motion, the memoranda in support, the memoranda in opposition, the record, and the
applicable law, the Court will grant the pending motion.
Also before the Court is Plaintiff’s “Motion to Continue Trial.”2 After considering the
pending motion, the memorandum in support, the opposition, and the record, and further considering
that the Court will grant Defendant’s “Motion for Summary Judgment,” the Court will deny
Plaintiff’s “Motion to Continue Trial.”
I. Background
On February 3, 2011, Plaintiff Mary Alicia Connelly was visiting her brother, who was a
patient at the Southeast Louisiana Veterans Health Care Center in New Orleans, Louisiana.3
According to Plaintiff, there was a foreign substance on the floor near the third floor nurse’s station.4
Plaintiff claims that she “was unaware of the existence of the foreign substance” and that “when she

1

Rec. Doc. 30.

2

Rec. Doc. 45.

3

Rec. Doc. 9 at ¶ 9.

4

Id. at ¶ 11.

stepped in and/or on the foreign substance, she slipped and fell to the floor.”5 As a result of the slipand-fall, Plaintiff alleges that she “has suffered physical pain and mental anguish.”6
On January 3, 2012, Plaintiff submitted an administrative claim for negligence to the
Department of Veterans Affairs.7 This claim was denied on August 28, 2012.8
On November 2, 2012, Plaintiff filed suit in this matter,9 and on May 6, 2013 and May 15,
2013, Plaintiff filed amended complaints.10 Plaintiff brings one claim pursuant to the Federal Tort
Claims Act (“FTCA”),11 asserting that Defendant United States was negligent in its “failure to
exercise reasonable care commensurate with the circumstances because it had actual notice of the
hazardous floor condition” and in its “failure to take reasonable steps to remedy the situation.”12
Plaintiff requests $1,000,000 in damages.13

5

Id. at ¶ 13.

6

Id. at ¶ 14.

7

Id. at ¶ 4.

8

Id.

9

Rec. Doc. 1.

10

Rec. Doc. 8; Rec. Doc. 9; Rec. Doc. 11.

11

Rec. Doc. 9 at ¶¶ 15–17.

12

Id. at ¶ 13.

13

Id. at ¶ 17.

2

On April 2, 2014, Defendant filed the pending “Motion for Summary Judgment.”14 On April
3, 2014, Plaintiff filed a memorandum in opposition.15 With leave of the Court, Defendant filed a
reply on April 15, 2014,16 and Plaintiff filed a sur-reply on April 17, 2014.17
On May 7, 2014, Plaintiff filed the pending “Motion to Continue Trial.”18 Also on May 7,
2014, Defendant filed its opposition.19
II. Parties’ Arguments
A.

Defendant’s Motion for Summary Judgment
1.

Defendant’s Arguments in Support

In its “Motion fo Summary Judgment,” Defendant argues that summary judgment is
appropriate because: “Defendant submits, and the record evidence supports, that at the time and
place of Plaintiff’s alleged fall, there was no foreign substance on the floor. Moreover, Plaintiff
cannot prove her fall occurred and alleged injury results from a foreign substance on the premises,
as would be required. Furthermore, Plaintiff is unable to prove actual or constructive knowledge by
the Defendant of any alleged foreign substance of the floor.”20

14

Rec. Doc. 30.

15

Rec. Doc. 32.

16

Rec. Doc. 36.

17

Rec. Doc. 40.

18

Rec. Doc. 45.

19

Rec. Doc. 46.

20

Rec. Doc. 30-1 at pp. 1–2.

3

First, “Defendant submits, and the record evidence supports, that at the time and place of
Plaintiff’s alleged fall, there was no foreign substance on the floor.”21 Defendant argues that
“plaintiff’s only listed fact witness outside of her treating physicians, Plaintiff’s brother, Mr.
Connelly, who was walking with Plaintiff at the time of her fall, was unable to offer any testimony
regarding an alleged foreign substance on the floor.”22 Defendant further asserts that “[t]wo VA
employees, Nurse Colar-Hughes and Mr. Bell testified that they checked the floor following
Plaintiff’s fall, and there was nothing there.”23
Second, according to Defendant, when a plaintiff brings a claim pursuant to the FTCA, the
court applies the substantive law of the state where the alleged tortious action occurred, which in
this case would be Louisiana.24 Defendant contends that “Louisiana substantive tort law contains
a burden shifting that applies only to slip-and-falls at hospitals.”25 Under this burden-shifting
scheme, Defendant contends that “a plaintiff initially bears the burden of showing ‘that the fall
occurred and injury resulted from a foreign substance on the premises.’”26 Once this showing is
made, Defendant asserts that “‘[t]he burden then shifts to the hospital to exculpate itself from
liability.’”27 According to Defendant, however, “this burden shifting is akin to strict liability, which

21

Id. at p. 4.

22

Id.

23

Id.

24

Id. at p. 6.

25

Id.

26

Id. at p. 7 (citing Millet v. Evangeline Health Care, Inc., 02-1020 (La. App. 5 Cir. 1/28/03), 839 So. 2d 357,

27

Id. (quoting Millet, 839 So. 2d at 361).

360–61).

4

the Fifth Circuit has rejected in FTCA cases.”28 Further, Defendant argues that “[u]nder the FTCA,
the United States’ limited waiver of sovereign immunity dictates that the United States may be liable
for injuries ‘caused by the negligent or wrongful act or omission of any employee of the
Government.’”29 Defendant avers that summary judgment is appropriate because “Plaintiff is unable
to offer any testimony regarding any negligent or wrongful act or omission of any employee of the
Government, in that Plaintiff specifically testified that she had no knowledge regarding when any
alleged spill may have occurred, and whether the VA was on actual or constructive notice of any
alleged spill.”30
2.

Plaintiff’s Arguments in Opposition

In opposition, Plaintiff “asserts that there are material issues of fact, and further asserts that
based upon the defendant’s failure to comply with discovery and cooperate in discovery, that
plaintiff has been hindered in their (sic.) ability to obtain evidence to establish negligence.”31 More
specifically, Plaintiff argues that:
Ms. Connelly states that at the time of the incident, she fell on a foreign substance
which was present. Hospitals in Louisiana, as well as throughout the United States
have a heighten duty of care to their patients and visitors. The area in question is
clearly [a] high traffic area, and should have been inspected on a regular basis. It is
for this reason, and furthermore, based on security needs, that video tapes exist.
However, the defendant has failed to produce any evidence whatsoever to establish
that normal cleaning procedures occurred, that maintenance was not called or did not

28

Id. (citing Tindall v. United States, 901 F.2d 53, 55 n.3 (5th Cir. 1990); Lathers v. Penguin Indus., Inc., 687
F.2d 69, 72 (5th Cir. 1982)).
29

Id. (quoting 28 U.S.C. § 1346(b)(1)).

30

Id.

31

Rec. Doc. 32 at p. 1.

5

appear at the scene, and that the video tape which clearly existed, fails to show any
foreign substance.32
Plaintiff also contends that maintenance logs should be available, indicating any maintenance to the
area where Plaintiff fell:
It is important to note that plaintiff, through discovery, requested copies of all logs
from defendant showing times that maintenance was performed on the floor in
question. Defendant has stated that no such logs exist. Plaintiff’s position in this
matter is that defense counsel has failed to produce documents which clearly do exist
based upon standard procedure and protocol in government operated facilities.33
Further, Plaintiff asserts that Defendant’s failure to disclose the identity of a nurse who assisted
Plaintiff after her fall is grounds for denying summary judgment:
Ms. Hughs, Mr. Bell, Mr. Connelly, and Ms. Connelly all agree that there was
another nurse present at the time of the accident. Defense (sic.) counsel has
requested the names of this nurse and all persons who were stationed that the desk.
This information has not been supplied. Defense counsel argues that they do not
have records of who was working and cannot provide this information. Ms. Hughs
confirms that records should exist which would make it easy to determine who this
individual was. However, defense counsel has taken no steps whatsoever to provide
this information, and has failed to provide a list of any and all nurses who were
assigned to the floor at the time of the incident. Of course, the video tapes would
clearly show who this person was, however, no such video tapes exist. Furthermore,
if another person were present, why was her testimony not taken, and why did she
not prepare an incident report. All of these questions raise curious issues which
create grounds to deny defendant’s Motion for Summary Judgment.34
In support of her position that there was a substance on the floor, Plaintiff avers that Mr.
Connelly testified that “sometime after the accident a maintenance crew appeared at the site and
began cleaning the site and placed cones to mark the area.”35 Further, Plaintiff asserts that witnesses

32

Id. at pp. 2–3.

33

Id. at p. 2.

34

Id. at pp. 4–5.

35

Id. at pp. 1–2.

6

Tyrone Bell and Nurse Collar-Hughes failed to check whether her clothing was wet.36 According
to Plaintiff, Ms. Connelly herself “states that there was a foreign substance on the floor.”37 She
explains that “careful inspection of the area would indicate that drink machines are easily
accessible,” that “a break room is down the hall and coffee was provided in this break room,” and
that “this is an area that is highly travelled (sic.) by patients, who often exhibit unsteady gaits and
may have a propensity to spill on the floor.”38
Plaintiff concludes arguing:
Based upon the very law cited by the defendant, genuine issues of material fact do
exist, and these issues and their existence, or nonexistence, would affect the outcome
of the lawsuit. It is for this reason that plaintiff filed their (sic.) Motion for Summary
Judgment/Motion for Sanctions/Request for Negative Presumption. Without the
information in question, it is almost impossible for the plaintiff to carry her burden
of proof.39
3.

Defendant’s Arguments in Further Support

In reply to Plaintiff, Defendant reiterates that Plaintiff is unable to meet her burden of
showing that a foreign substance was on the floor. Defendant asserts that Mr. Connelly “testified
that he was with Plaintiff at the time of her fall, but did not observe a foreign substance on the
floor.”40 Further, Defendant contends that Mr. Bell, who witnessed the accident, and Nurse CollarHughes, who assisted Plaintiff after her fall, “both testified that they inspected the site of Plaintiff’s

36

Id. at pp. 3–4.

37

Id. at p. 5.

38

Id.

39

Id.

40

Rec. Doc. 36 at p. 2.

7

alleged fall, and there was no foreign substance on the floor.”41 Defendant refutes Plaintiff’s
statement that Mr. Connelly testified to seeing a maintenance crew come to the site, saying “[i]n
fact, Mr. Connelly specifically testified to the contrary, noting that he did NOT see a maintenance
crew come out.”42
Additionally, Defendant maintains that it has complied with all discovery obligations.43
4.

Plaintiff’s Arguments in Further Opposition

In her sur-reply, Plaintiff clarifies that “[w]hile Mr. Connelly, whose deposition has never
been received from the Court Report (sic.) by plaintiff’s counsel, may not have said that he did not
see a cleaning crew, he commented that he clearly saw that the area was market with a cone
indicating that a cleaning crew had appeared sometime between the time of the fall and the time that
Mr. Connelly returned from placing the walker in his vehicle.”44
Plaintiff also reiterates her argument that Defendant has failed to comply with its discovery
obligations.45

41

Id.

42

Id.

43

See id. at pp. 3–7. The Court’s order addressing Plaintiff’s “Motion for Negative Presumption Based on
Spoilation of Evidence” extensively discusses the parties’ positions regarding whether Defendant has fulfilled its
discovery obligations. Those arguments are not restated here.
44

Rec. Doc. 40 at p. 2.

45

See id. at pp. 3–6. The Court’s order addressing Plaintiff’s “Motion for Negative Presumption Based on
Spoilation of Evidence” extensively discusses the parties’ positions regarding whether Defendant has fulfilled its
discovery obligations. Those arguments are not restated here.

8

B.

Plaintiff’s Motion to Continue Trial
1.

Plaintiff’s Arguments in Support

Plaintiff seeks a continuance of the trial currently set for June 2, 2014. In support of her
motion, Plaintiff avers that “additional discovery has recently been produced by the defendant, and
additional depositions are needed.”46 Specifically, Plaintiff “wishes to depose all individuals who
were recently identified by the defendant as being on the premises and/or working at the time of the
accident. Furthermore, defendant provided Affidavits from security personnel, as well as other
employees of the VA Hospital, in support of their Motion for Summary Judgment. Plaintiff wishes
to depose these individuals.”47 Plaintiff also represents that the June 2, 2014 trial date conflicts with
her niece’s graduation.48
2.

Defendant’s Arguments in Opposition

In opposition, Defendant asserts that “[a]dditional discovery has not recently been produced
by defendant as incorrectly asserted by Plaintiff.”49 According to Defendant, “Plaintiff is seemingly
referencing declarations filed into the Record at Record Doc. 24 on February 11, 2014, and issued
to Plaintiff again via supplemental discovery responses on March 7, 2014. Such Declarations were
made available to Plaintiff in advance of the March 31, 2014 discovery deadline in this litigation
(Rec. Doc. 15), and to date, Plaintiff has never requested the depositions of the subject declarants
and/or nurses identified as working on 9G on the date of Plaintiff’s alleged February 3, 2011 fall.”50
46

Rec. Doc. 45-1 at p. 1.

47

Id.

48

Id. at p. 2.

49

Rec. Doc. 46 at p. 1.

50

Id. at pp. 1–2.

9

III. Law and Analysis
A.

Standard on Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits show

that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”51 When assessing whether a dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”52 All reasonable inferences are drawn in favor of the nonmoving party, but
“unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of
law’ are insufficient to either support or defeat a motion for summary judgment.”53 If the record, as
a whole, could not lead a rational trier of fact to find for the non-moving party, then no genuine issue
of fact exists and the moving party is entitled to judgment as a matter of law.54
The party seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the record, which it
believes demonstrate the absence of a genuine issue of material fact.55 If the dispositive issue is one
on which the moving party will bear the burden of proof at trial, the moving party “must come
forward with evidence that would ‘entitle it to a directed verdict if the evidence went uncontroverted
at trial.’”56 The nonmoving party can then defeat the motion for summary judgment by either

51
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
52

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

53

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

54

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

55

Celotex, 477 U.S. at 323.

56

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991).

10

countering with sufficient evidence of its own or “showing that the moving party’s evidence is so
sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving
party.”57 The nonmoving party may not rest upon the pleadings, but must identify specific facts in
the record and articulate the precise manner in which that evidence establishes a genuine issue for
trial.58
B.

Federal Tort Claims Act
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from

suit.”59 Since “[s]overeign immunity is jurisdictional in nature,” the United States may only be sued
with its consent.60 Through the Federal Tort Claims Act (“FTCA”), Congress has given a limited
consent for the federal government to be sued for “damages ‘caused by the negligent or wrongful
act or omission of any employee of the Government . . . .’”61 “The statute provides broadly that the
United States will accept liability for common torts committed by its agents to the same extent and
in the same manner as liability would attach to a private individual in similar circumstances.”62 For
the United States to be amenable to suit under the FTCA, the injury must have been caused “under
circumstances where the United States, if a private person, would be liable to the claimant in
accordance with the place where the act or omission occurred.”63 Here, the alleged acts and
57

Id. at 1265.

58

See, e.g., Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

59

FDIC v. Meyer, 510 U.S. 471, 475 (1994).

60

Id.

61

Artez v. United States, 604 F.2d 417, 426 (5th Cir. 1979) (quoting 28 U.S.C. § 1346(b)).

62

Williamson v. U.S. Dep’t of Agric., 815 F.2d 368, 374 (5th Cir. 1987) (citing United States v. Orleans, 425
U.S. 807, 813 (1976)); see also Thomas v. Calvar Corp., 679 F.2d 416, 418 (5th Cir. 1982) (“The FTCA permits
recovery in tort against the United States only ‘under circumstances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place where the act or omission occurred.’”) (quoting 28 U.S.
C. § 1346(b)).
63

28 U.S.C. § 1346(b)(1); see also Thomas, 679 F.2d at 618.

11

omissions occurred in Louisiana.
C.

Liability for Slip-and-Falls in Hospitals Under Louisiana Law
Generally, slip-and-fall cases in Louisiana are governed by Louisiana Revised Statute

§ 9:2800.6, which provides:
In a negligence claim brought against a merchant by a person lawfully on the
merchant’s premises for damages as a result of an injury, death, or loss sustained
because of a fall due to a condition existing in or on a merchant’s premises, the
claimant shall have the burden of proving, in addition to all other elements of his
cause of action, all of the following:
(1)

The condition presented an unreasonable risk of harm to the claimant and
that risk of harm was reasonably foreseeable.

(2)

The merchant either created or had actual or constructive notice of the
condition which caused the damage, prior to the occurrence.

(3)

The merchant failed to exercise reasonable care. In determining reasonable
care, the absence of a written or verbal uniform cleanup or safety procedure
is insufficient, alone, to prove failure to exercise reasonable care.64

However, as numerous Louisiana courts have explained, hospitals are not considered “merchants”
for the purposes of § 9:2800.6, and thus § 9:2800.6’s negligence standard does not apply.65
While Louisiana courts agree that § 9:2800.6 does not apply, they disagree on the proper
standard for evaluating slip-and-falls at hospitals. The majority approach—first articulated by the
Fourth Circuit Court of Appeal of Louisiana in Neyrey v. Touro Infirmary, 639 So. 2d 1214, 1217
(La. App. 4 Cir. 1994), and later adopted by the First, Third, Fourth, and Fifth Circuits—establishes

64

La. Rev. Stat. § 2800.6(b).

65

See, e.g., Grinnell v. St. Francis Med. Ctr., Inc., 48,249 (La. App. 2 Cir. 8/21/13), – So. 3d –, 2013 WL
4451069, at *6 (“This court has previously held that a hospital is not a ‘merchant’ under La. R.S. 9:2800.6”); Millet v.
Evangeline Health Care, Inc., 02-1010 (La. App. 5 Cir. 1/28/03), 839 So. 2d 357, 360 (“The burden of proof that LSAR.S. 9:2800.6 establishes should not have been used in this case where the accident occurred on a hospital’s premises,
instead of a merchant’s premises.”); Neyrey v. Touro Infirmary, 639 So. 2d 1214, 1217 (La. App. 4 Cir. 1994) (“R.S.
9:2800.6 expressly applies to ‘merchants’ as defined therein, and hospitals are not covered by that statute.”).

12

a burden-shifting scheme:
A plaintiff in a slip and fall case against a hospital must show the fall occurred and
injury resulted from a foreign substance on the premises. The burden then shifts to
the hospital to exculpate itself from the presumption of negligence. A hospital owes
a duty to its visitors to exercise reasonable care commensurate with the particular
circumstances. The hospital must show that it acted reasonably to discover and
correct the dangerous condition reasonably anticipated in its business activity.66
Once a plaintiff has met her initial burden, a hospital may defeat the presumption of negligence by
showing, for example, that it conducted regular inspections of its floors and had swift cleanup
procedures in place.67
In Holden v. Louisiana State University Medical Center—Shreveport, 29,268 (La. App. 2
Cir. 2/28.97), 690 So. 2d 958, 963, the Second Circuit Court of Appeal of Louisiana rejected the
burden-shifting approach, and held that a hospital “is not required to exculpate itself from a
presumption of negligence raised simply by the plaintiff’s showing of a fall from a foreign substance
whose source is unknown.”68 In Holden, the court explained that prior to 1975, the “general rule”
governing slip-and-fall cases “had been that the plaintiff must prove, in addition to the fall, that the

66

Neyrey, 639 So. 2d at 1216 (internal citations omitted); see also Terrance v. Baton Rouge Gen. Med. Ctr.,
2010-0011 (La. App. 1 Cir. 6/11/10), 39 So. 3d 842, 844 (discussing Neyrey); Millet, 839 So. 2d at 361 (“The proper
burden of proof in a claim for injuries caused by a condition in a hospital is set forth in Neyrey v. Touro Infirmary.”);
Harkins v. Natchitoches Parish Hosp., 97-83 (La. App. 3 Cir. 5/7/97), 696 So. 2d 19, 21 (citing Neyrey for the
proposition that “Ms. Harkins is required to prove that she tripped and fell and was injured because of some defect at
the hospital’s premises, creating a presumption of negligence on the hospital’s part. If she meets this burden of proof,
the hospital must exculpate itself from that presumption.”).
The Court notes that although Louisiana courts have adopted burden-shifting framework described in Neyrey,
Neyrey’s holding did not rely on this framework and the accompanying presumption of the negligence. Rather, the
Neyrey court found that hospital employees had actual notice that a hazardous substance was on the floor. Neyrey, 639
So.2d at 1217 (describing the burden-shifting standard but remarking “[n]evertheless, we need not consider whether a
hospital’s burden of proof should be lessened to the burden now placed on a merchant because, as detailed below, the
record supports a finding that Touro failed to exercise reasonable care commensurate with the circumstances.).
67

See Terrance, 39 So. 3d at 846 (holding that the hospital had exculpated itself from the presumption of
liability where witnesses testified to “the personal and attentive floor inspection that occurred every ten-to-fifteen
minutes throughout each and every day by the hospital cafeteria supervisor and the swift cleanup procedures followed
by the cafeteria employees if a spill was discovered”).
68

Holden, 690 So. 2d at 963.

13

dangerous condition (1) was created by the merchant’s employees or (2) either (a) was actually
known to the merchant’s employees or (b) had existed for a sufficient length of time for the
merchant to have constructive knowledge.”69 Then, in Kavlich v. Kramer, 315 So. 2d 282 (La. 1975),
and Gonzales v. Winn-Dixie Louisiana, Inc., 326 So. 2d 486 (La. 1976), “the Supreme Court [of
Louisiana] required the defendant storekeeper to exculpate itself from a presumption of negligence
imposed merely by the plaintiff’s showing that the fall occurred because of a foreign substance on
the floor.”70 Following the Kavlich and Gonzales decisions in 1975 and 1976 respectively, “the
burden on the merchant to exculpate itself from the presumption of negligence was further
heightened to include, in addition to evidence of adequate safety and cleanup procedures, proof that
none of the merchant’s employees caused the spill at issue.”71 Holden explained that the state
legislature enacted Louisiana Revised Statute § 9:2800.6 to undo this burden-shifting scheme:
In response to this line of jurisprudence placing the burden of proof on the defendant,
the legislature enacted in 1988, and later amended in 1990, a special slip and fall
statute, LSA-R.S. 9:2800.6, which is specifically applicable only to merchants. The
Supreme Court addressed the new statute for the first time after its amendment in
1990, in Welch v. Winn-Dixie, Louisiana, Inc., 655 So. 2d 309, 314 (La. 1995). It
observed: “In 1900, the Legislature changed direction completely and enacted the
current version of the statute which, according to one commentator, copies the
‘traditional’ rule of liability requiring actual or constructive knowledge and places
the burden of proof squarely on the plaintiff.”72
Observing that “we have not found that the Louisiana Supreme Court applied the ever-increasing
post-Kavlich burdens upon non-merchant defendants such as [hospitals] between 1975 and 1990,”
the Second Circuit ruled in Holden that “a non-merchant such as [defendant hospital] LSUMC is not

69

Id. at 962.

70

Id. (citing Welch v. Winn-Dixie, Louisiana, Inc., 655 So. 2d 309, 314 (La. 1995)).

71

Id. at 963.

72

Id.

14

required to exculpate itself from a presumption of negligence raised simply by the plaintiff’s
showing of a fall from a foreign substance.”73
While the burden-shifting approach is the majority approach, that fact alone does not
determine which standard the Court must apply. Rather, the Court must take into account unique
considerations surrounding liability in the context of the FTCA. As explained above, the FTCA
provides a remedy “for injury or loss of property caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his office or
employment.”74 This remedy does not, however, open the United States to liability based on strict
liability.75 Though not specifically addressed by the Fifth Circuit, other district courts have
suggested “that the FTCA does not permit suits for general premises liability to the extent that such
theories resemble strict liability as opposed to ‘a more focused approach that requires the courts to
consider the actor whose negligence might be imputed to the government under state law.”76

73

Id.

74

28 U.S.C. § 1346(b)(1).

75

Artez v. United States, 604 F.2d 417, 426–27 (5th Cir. 1979) (“The liability of the United States under the
Act is limited by section 1346(b) to the ‘negligent or wrongful’ acts of its employees; this language has been interpreted
to preclude liability of the United States based on strict liability in tort.”).
76

Perkins v. United States, No. 98-2636, 1999 WL 148442, at *2 (E.D. La. Oct. 24, 2008) (Sear, J.) (quoting
Berkman v. United States, 957 F.2d 108, 113 (4th Cir. 1992)); see also Charles v. United States Postal Serv., No. 06-277,
2007 WL 925899, at *2 (E.D. La. Mar. 13, 2007) (Africk, J.) (holding that “plaintiff’s complaint fails to allege
negligence on the part of any specific federal employees for any specific acts of negligence, her claim is one for premises
liability and, therefore, she cannot sustain her FTCA action”); Graubarth v. United States ex rel Dept. of Interior, No.
05-892, 2005 WL 3543763, at *4 (E.D.La. Oct. 4, 2005) (Africk, J.) (holding that, where plaintiff’s complaint failed to
name any specific federal employees for any specific acts of negligence, plaintiff’s claim was one for premises liability
and could not be sustained by the FTCA); Centanni v. United States, No. 03-627, 2004 WL 385057, at *2 (E.D. La.
Feb.27, 2004) (Engelhardt, J.) (“The plaintiff has alleged that her injuries were caused by the negligence of the Post
Office in the failure to maintain the area and to warn about the alleged dangerous condition. However, the Complaint
does not allege that specific individuals were negligent in any specific manner in relation to the broken chain. Thus, it
appears that the substance of Ms. Centanni's claim is one of premises liability, which fails to state a claim under the
FTCA.”); Cupit v. United States, 964 F.Supp. 1104, 1112 (W.D.La.1997) (finding that “this is not an issue that has been
defined by the Fifth Circuit” and dismissing plaintiff's claims against the United States “to the extent that they are
founded on general state law premises liability” but not to the extent that they are based on the negligence of specific
government employees) (Little, J.).

15

Accordingly, some district courts have dismissed claims where a plaintiff fails to allege that “that
specific individuals were negligent in any specific manner.”77 For example, in Graubarth v. United
States ex rel. Department of the Interior, No. 05-892, 2005 WL 3543763 (E.D.La. Oct. 4, 2005)
(Africk, J.), another court in this district dismissed plaintiff’s FTCA complaint for failure to state
a claim where “[p]laintiff’s complaint makes no mention of any specific federal employees who may
have negligently caused the injuries alleged.”78 Other district courts, however, have permitted FTCA
claims for general premises liability under negligence theories.79 In Wiggins v. United States, No.
08-0008, 2009 WL 2176043, at *2 (E.D. La. July 22, 2009) (Feldman, J.), for example, the plaintiff
brought a claim for a slip-and-fall on a wet floor at a post office. The district court did not dismiss
the action for failure to state a claim, but rather evaluated plaintiff’s claim under a negligence
framework: “To the extent the plaintiff asserts that the defendant acted unreasonably in failing to
dry the wet floor or otherwise prevent the rainwater from creating a slick condition, her claim sounds
in negligence, not strict liability.”80
Where federal district courts have allowed premises liability claims under a negligence
framework, they have required that the plaintiff show that the defendant had actual or constructive
77
78

Perkins, 1999 WL 148442, at *2.
Graubarth, 2005 WL 3543763, at *4.

79

Joliff v. United States, No. 11-1150, 2012 WL 2449952, at *5 (E.D. La. June 27, 2012) (Fallon, J.)
(evaluating plaintiff’s claim for damages resulting from falling debris at an IRS building under a negligence framework);
Wiggins v. United States, No. 08-0008, 2009 WL 2176043, at *2 (E.D. La. July 22, 2009) (Feldman, J.) (“To the extent
the plaintiff asserts that the defendant acted unreasonably in failing to dry the wet floor or otherwise prevent the
rainwater from creating a slick condition, her claim sounds in negligence, not strict liability.”); Gourgeot v. United States
Postal Service, No. 07-1621, 2008 WL 4724382, at *3 (E.D. La. Oct.24, 2008) (Berrigan, J.) (allegations attributing
plaintiff’s fall to the condition of the stairs outside the post office stated a claim under the FTCA); Janice v. United
States, No. 06-922, 2008 WL 269530, at *6 (W.D. La. Jan.29, 2008) (allowing FTCA premises liability claim to proceed
so long as the claim was not a strict liability claim such that it did not concern an unknown, inherent defect); Jamison
v. United States, 491 F. Supp. 2d 608, 617 (W.D. La. 2007) (FTCA did not bar action against United States for general
premises liability under Louisiana negligence theory).
80
Wiggins, 2009 WL 2176043, at *3. The court ultimately granted summary judgment to the defendant, finding
that the plaintiff could not establish the elements of a negligence claim. Id. at *6.

16

knowledge of the condition. As the court in Wiggins explained, “[t]o ignore the constructive
knowledge element of [plaintiff’s] negligence claim would be to impose strict liability on the
defendant.”81 Similarly, in Joliff v. United States, No. 11-1150, 2012 WL 2449952, at *5 (E.D. La.
June 27, 2012) (Fallon, J.), the court stated that “[a] critical element for establishing a premises
liability and negligence claim is a showing that the defendant had actual or constructive knowledge
of the condition.”82
To summarize, Louisiana’s Courts of Appeal are split on whether a plaintiff has the burden
of proving that a defendant-hospital had actual or constructive notice of a condition, and the
Louisiana Supreme Court has not addressed the issue. While the majority approach involves a
burden-shifting scheme that only requires plaintiff to initially prove that her fall occurred and injury
resulted from a foreign substance on the premises, the minority has retained the traditional rule
requiring the plaintiff to prove that the hospital had actual or constructive knowledge. Given the
unique considerations posed by the FTCA, the Court will adopt the minority approach and require
that Plaintiff prove that Defendant had actual or constructive knowledge. Eliminating the actual or
constructive knowledge requirement “would be to impose strict liability on the defendant,”83 which
the FTCA and the United States’ limited waiver of sovereign immunity preclude.84

81

Id. at *6.

82

Joliff, 2012 WL 2449952, at *6.

83

Wiggins, 2009 WL 2176043, at *6.

84

Artez, 604 F.2d at 426–27 (“The liability of the United States under the Act is limited sby section 1346(b)
to the “negligent or wrongful” acts of its employees; this language has been interpreted to preclude liability of the United
States based on strict liability in tort.”).

17

D.

Analysis
In her complaint, Plaintiff asserts that Defendant “had actual notice of the hazardous floor

condition.”85 However, in opposing a motion for summary judgment, the nonmoving party may not
rest upon the pleadings, but must identify specific facts in the record and articulate the precise
manner in which that evidence establishes a genuine issue for trial.86 In this case, Plaintiff has
offered no evidence to support the proposition that Defendant had actual notice. Further, in her
deposition, Plaintiff admitted that she did not witness anyone report to the nurses station that there
was something on the floor, and that she has no knowledge of whether anyone at the VA Hospital
knew that there was something on the floor.87
With respect to constructive knowledge, Plaintiff has offered no indication of how large the
alleged spill was, how long it had been on the floor, or whether the liquid was colored and easily
visible, or transparent and difficult to see. In her opposition, Plaintiff notes that “[o]f course, she is
unable to identify whether this was coffee, water, juice, or whatever,”88 though it appears to the
Court that following her fall, Plaintiff could have made some basic observations about the condition
of the floor.
Plaintiff acknowledges that she “is in a quandary as to how to carry her burden of proof,”89
but contends that Defendant’s motion for summary judgment should nonetheless be denied because
Defendant has failed to comply with its discovery requirements. As more fully explained in the

85

Rec. Doc. 9 at ¶ 13.

86

See, e.g., Celotex, 477 U.S. at 325; Ragas, 136 F.3d at 458.

87

Rec. Doc. 30-6, Deposition of Mary Alicia Connelly, dated Jan. 9, 2014, at p. 3.

88

Rec. Doc. 32 at p. 5.

89

Id.

18

Court’s order on Plaintiff’s “Motion for a Negative Presumption,” Plaintiff has failed to show that
Defendant has not met its discovery obligations. Defendant has explained that the security video
would have been overridden after thirty days after the accident,90 and has confirmed that there are
no maintenance logs or work orders.91 Moreover, despite Plaintiff’s claims that Defendant has
withheld witness names, Defendant provided a list of nurses working on 9G on February 3, 2011,92
and has made Nurse Collar-Hughes available for deposition.93
Further, Plaintiff has failed to show that additional discovery is warranted. On May 7, 2014,
Plaintiff filed a “Motion to Continue Trial,” asserting that “additional discovery has recently been
produced by the defendant, and additional depositions are needed. Plaintiff wishes to depose all
individuals who were recently identified by the defendant as being on the premises and/or working
at the time of the accident. Furthermore, defendant provided Affidavits from security personnel, as
well as other employees of the VA Hospital, in support of their Motion for Summary Judgment.
Plaintiff wishes to depose these individuals.”94 The Court notes that this “additional
discovery”—including the names of security personnel and the nurses on duty—has been available
to Plaintiff since February 11, 2014,95 and during that time Plaintiff has not requested any of the
depositions she now asserts are necessary.96

90

See Rec. Doc. 24-6, Declaration of Robert W. Kenyon, dated Feb. 10, 2014.

91

See Rec. Doc. 24-7, Declaration of Gary N. Speyrer, dated Feb. 5, 2014.

92

See Rec. Doc. 24-8.

93

See Rec. Doc. 24-4, Letter from Sunni J. LeBeouf, Assistant United States Attorney to J. Michael Daly, Jr.,
Walker Willard LLP, dated Jan. 22, 2014.
94

Rec. Doc. 45-1 at p. 1.

95

See Rec. Doc. 24 and attached exhibits.

96

Rec. Doc. 46.

19

IV. Conclusion
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits show
that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”97 In opposing a motion for summary judgement, the nonmoving party may not rest
upon the pleadings, but must identify specific facts in the record and articulate the precise manner
in which that evidence establishes a genuine issue for trial.98 In this case, Plaintiff has failed to
identify specific facts in the record that establishes a genuine issue regarding whether Defendant had
actual or constructive knowledge of the condition of the floor. Further, Plaintiff has not
demonstrated that additional discovery is warranted in this matter. Accordingly,
IT IS HEREBY ORDERED that Defendant’s “Motion for Summary Judgment”99 is
GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s “Motion to Continue Trial” is DENIED.100
NEW ORLEANS, LOUISIANA, this ____ day of May, 2014.

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

97

Fed. R. Civ. P. 56(a); see also Celotex, 477 U.S. at 322–23; Little, 37 F.3d at 1075.

98

See, e.g., Celotex, 477 U.S. at 325; Ragas, 136 F.3d at 458.

99

Rec. Doc. 30.

100

Rec. Doc. 46.

20