GENOVESE, Judge.
The Defendants, Gold Rush Casino and OM Operating, LLC, appeal the judgment of the trial court granting a motion for partial summary judgment on the issue of liability in favor of the Plaintiff, Reginald J. Bell. Specifically, the issue is whether the record on appeal presents a genuine issue of material fact. Finding that it does, we reverse and remand for further proceedings.
DISCUSSION OF THE RECORD
Plaintiff, Reginald Bell, alleged in his petition that his injuries occurred on March 9, 2003, while he was descending a flight of three steps inside the Gold Rush Casino near Opelousas, St. Landry Parish, Louisiana. The petition stated in part, "... there was a piece of bolt protruding from the stairs, which caught on Plaintiff's pants, contributing to his fall." Additionally, the petition alleged that the accident was due to the negligence and/or strict liability of Gold Rush in failing to provide handrails to assist patrons in traversing the stairs; in failing to properly light the stairs and premises, particularly since Gold Rush was aware that at least one other patron had allegedly fallen in the same area; and, in failing to remove the piece of protruding bolt.
Pursuant to a status conference held on August 28, 2003, a scheduling order was issued setting this matter for trial on January 29, 2004. On November 10, 2003, Plaintiff filed a motion for partial summary judgment on the issue of liability alleging negligence and strict liability under Louisiana Civil Code Articles 2315 and 2317. Plaintiff's motion was originally set for hearing on December 5, 2003; however, the hearing was continued by agreement of the parties in order to pursue settlement discussions and mediation.
On December 22, 2003, Plaintiff's counsel filed a motion to reset the hearing on the summary judgment. The trial court reset the hearing for January 22, 2004, seven days prior to trial.
In Defendants' memorandum in opposition to the motion for partial summary judgment filed on January 21, 2004, defense counsel objected to the court's hearing of this motion so close to trial, specifically noting that La.Code Civ.P. art. 966(D) mandates that a ruling on a motion for summary judgment shall not be rendered less than ten days prior to trial. However, Defendants did not seek a continuance of said trial date. Nonetheless, the trial court heard arguments on Plaintiff's motion on January 22, 2004, and rendered written reasons for judgment granting Plaintiff's motion for partial summary judgment on the issue of liability on January 26, 2004, only three days prior to the scheduled trial. The judgment granting Plaintiff's motion for partial summary judgment was designated a final judgment under La.Code Civ.P. art. 1915 by the trial
ISSUES
On appeal, Defendants contend that the trial court erred in: (1) rendering a judgment on a motion for summary judgment less than ten days prior to the trial; (2) granting Plaintiff's motion for summary judgment when genuine issues of material fact exist as to an unreasonable risk of harm; (3) finding that Defendants had a duty to install handrails on steps; (4) failing to consider Plaintiff's comparative fault; and (5) considering the deposition testimony of individuals from a separate civil proceeding.
DISCUSSION
TIMELINESS OF COURT'S RULING
Plaintiff moved for summary judgment on the issue of liability on November 10, 2003, more than two months before the trial. The original hearing date of December 5, 2003 was continued by agreement of the parties to pursue mediation and settlement negotiations. Pursuant to Plaintiff's motion to reset filed on December 22, 2003, the trial court reset the hearing on Plaintiff's motion for partial summary judgment for January 22, 2004.
The requirement of La.Code Civ.P. art. 966(D) that a judgment on the motion be rendered at least ten days prior to the scheduled trial date prevents the parties from being burdened with unnecessary trial preparation. Lassere v. State, 00-306 (La.App. 1 Cir. 3/28/01), 808 So.2d 513; Bell v. Uniroyal, Inc., 96-2838 (La.App. 4 Cir. 6/11/97), 696 So.2d 268. Though the time requirements in this case were not met, it is noted that neither party sought a continuance of the trial. Though Defendants assert being burdened, this does not equate to prejudice and does not invalidate a ruling on summary judgment.
Two other courts, the second and fourth circuit, have held that the violation of La.Code Civ.P. art. 966(D), which calls for summary judgments to be rendered at least ten days before the trial date, was not a ground to reverse a summary judgment absent prejudice to the opposing party. In Strong's Plumbing, Inc. v. Leon Angel Constructors, Inc., 35,105 (La.App. 2 Cir. 10/12/01), 796 So.2d 926, the trial court rendered summary judgment only three days before trial date.
In Bell, the trial court rendered summary judgment eight days before the trial date. The fourth circuit held that there was no evidence that the opponent's case was prejudiced by the delay and, because it appeared that the reason for the delay was the opponent's own last-minute submission of an affidavit, the violation of La.Code Civ.P. art. 966 was not grounds to reverse the summary judgment. Id.
In the case at bar, following the court's rendition of written reasons for judgment granting the Plaintiff's motion for partial summary judgment, the trial court granted Defendants' request for a stay of the proceedings on January 27, 2004. Thus, there was no trial on January 29, 2004. Therefore, this issue is moot because no trial took place. Defendants' case was not prejudiced by the court's ruling on the motion for summary judgment just three days prior to trial. We conclude, therefore, that Defendants' having failed to establish sufficient grounds to reverse the trial court's ruling on the summary judgment on the basis of untimeliness.
SUMMARY JUDGMENT
Appellate courts review summary judgments de novo using the same criteria that govern the trial court's consideration of
In this case, there are questions of material fact as to how the Plaintiff fell and what caused his fall. Plaintiff's petition presents a version of how the alleged trip and fall occurred that is different from a statement Plaintiff gave to his treating physician, Dr. Elemer Raffai, on his initial visit just two days after the alleged accident. Questions as to whether Plaintiff tripped because of a bolt, a light cover, and/or his inattentiveness are glaring. A review of the record, including Plaintiff's petition, Plaintiff's deposition, and the notes of Plaintiff's physician from his initial visit only two days after the alleged accident, do not provide clear answers. There are also questions of law relative to comparative fault and whether or not the Defendants had a legal duty to install handrails on the steps in question. These issues were not fully considered by the trial court. Questions of fact as to the nature of Plaintiff's fall trigger the legal issue of comparative fault which cannot be adjudicated by summary judgment.
Defendants argue that the trial court erred in granting Plaintiff's motion for partial summary judgment on the issue of liability in its finding that the stairs were unreasonably dangerous, and that Defendants had notice or knowledge of their condition. Defendants claim the trial court wrongly relied on deposition testimony not elicited in these proceedings. This court articulated jurisprudence pertaining to Mr. Bell's cause of action in LeJeune v. Riviana Foods, 97-1091, pp. 2-4 (La.App. 3 Cir. 2/18/98), 707 So.2d 1038, 1039-40, writ denied, 98-749 (La.5/1/98), 718 So.2d 418:
LeJeune, 707 So.2d at 1039-40.
In opposition to Plaintiff's motion, Defendants introduced the affidavits of James Mayfield and John Sylvester, security guards at the Gold Rush casino. Both Mayfield and Sylvester state in their respective affidavits that, contrary to the allegations of Plaintiff, Reginald Bell, and Plaintiff's witness, Ronald Dupre, they were never advised, nor informed, by either Mr. Dupre or any other patron of the Gold Rush casino that handrails needed to be, or should be, installed on the steps in question. Further, Mr. Mayfield was on duty on the date of Plaintiff's alleged trip and fall and he attests that he did not find any bolts missing from the light fixture, nor did he find any other problem or defect with the light fixture on the stairs.
Plaintiff, Reginald Bell, offered the deposition testimony of Moses Williams and Ronald Dupre in support of his motion for summary judgment. Neither Williams nor Dupre were deposed relevant to these proceedings but, instead, were deposed by Plaintiff's counsel in reference to separate, ongoing litigation against these same Defendants. Plaintiff introduced these collateral depositions in an attempt to prove the existence of a defect or condition in the case at bar. The trial court took these depositions into consideration when it ruled, in part, "[t]he risk that patrons would fall was greatly and clearly foreseeable, given past occurrences in which other people had fallen on those stairs." Depositions in other proceedings can be used for other purposes, such as impeachment. Depositions in other proceedings are, however, collateral depositions and are not depositions "on file" for use in summary judgments as required by La.Code Civ.P. art. 966(B) and should not be considered in a motion for summary judgment. The trial court erroneously relied upon the collateral depositions of Mr. Williams and Mr. Dupre in making its determination.
After reviewing the record, we find that the trial court erred in granting summary judgment in favor of Plaintiff, Reginald Bell. In Brittain v. Family Care Services,
Id.; see also Greer v. Dresser Indus., Inc., 98-129 (La.App. 3 Cir. 7/1/98), 715 So.2d 1235, writ denied, 98-2094 (La.11/6/98), 728 So.2d 867.
In the case at bar, the trial court based its ruling, in part, on a finding that the Gold Rush Casino had knowledge or notice of the existence a dangerous condition. This a judicial determination of a subjective fact, for which jurisprudence has found summary judgment inappropriate.
Considering that there are questions of material fact and unresolved legal liability issues, particularly the legal issue of comparative fault, summary judgment on the issue of liability should not have been granted.
For the above reasons, the judgment of the trial court granting Plaintiff's motion for partial summary judgment on the issue of liability is reversed and the matter is remanded for trial on the merits. Costs of this appeal are assessed against Plaintiff-Appellee, Reginald J. Bell.
Comment
User Comments