Opinion
2022 CA 1145
06-02-2023
TANYA WHITE v. DT WILLIAMS, LLC D/B/A WILLIAMS FUNERAL HOME
Robert P. Kemp Madisonville, LA Counsel for Appellant Plaintiff-Tanya White Jude H. Trahant, Jr. Madisonville, LA Counsel for Appellees Defendants-DT Williams, LLC d/b/a Williams Funeral Home
Appealed from the Twenty-Second Judicial District Court Parish of St. Tammany State of Louisiana Docket Number 2019-12247 Division E The Honorable William H. Burris, Presiding Judge
Robert P. Kemp Madisonville, LA Counsel for Appellant Plaintiff-Tanya White
Jude H. Trahant, Jr. Madisonville, LA Counsel for Appellees Defendants-DT Williams, LLC d/b/a Williams Funeral Home
Before: Welch, Penzato, and Lanier, JJ.
WELCH, J.
In this action for damages, the plaintiff, Tanya White, appeals a trial court judgment granting a motion for summary judgment filed by the defendant, DT Williams LLC d/b/a Williams Funeral Home ("Williams"), and dismissing Ms. White's claims against Williams with prejudice. Based on our de novo review of the undisputed material facts, we find the contractual waiver of liability signed by Ms. White to be valid and enforceable, thus entitling Williams to judgment as a matter of law dismissing Ms. White's claim. Accordingly, we affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL HISTORY
On May 1, 2019, Ms. White commenced this proceeding, seeking damages that resulted from viewing her father's body in a decomposed state while it was under the care of Williams. According to Ms. White's petition, her father, Richard White, passed away on or about Friday, May 4, 2018, and his body was subsequently entrusted to Williams by Mr. White's sister, Kathy White. Ms. White alleged that after Williams discovered Ms. White was the proper next of kin, a meeting was arranged at the funeral home for 11:00 a.m. the following Monday, May 7, 2018; however, Ms. White arrived approximately two hours before the appointment.
Ms. White further alleged that upon arrival, she noticed that the doors were propped open, and she immediately noticed a "very strong and foul odor" in the building. Ms. White claimed that upon being informed that her father's body had decomposed, and thus was the source of the odor, she demanded to see her father's body immediately; however, Williams' employees attempted to dissuade her from viewing her father's remains as they were not ready for viewing. Eventually, Williams acquiesced, but required Ms. White to sign a waiver that released Williams from any liability for viewing the remains of her father and advised her that, in their professional opinion, Mr. White's remains should not be viewed. After signing the waiver, Ms. White viewed Mr. White's remains and alleged that his body was swollen and deteriorated beyond recognition. Accordingly, Ms. White sought damages for her emotional, psychological, and other related injuries, which resulted from her viewing the allegedly mishandled remains of her father.
In response to Ms. White's petition Williams filed an answer that generally denied Ms. White's allegations and asserted several defenses, including the affirmative defense that Ms. White was precluded from recovery because she signed the contractual waiver releasing Williams from liability. On November 20, 2020, Williams filed its first motion for summary judgment seeking dismissal of Ms. White's claims. First, Williams claimed that Ms. White could not prove negligence or fault on the part of Williams because she could not prove that Williams violated any of Louisiana's statutes, rules, or regulations pertaining to its handling of Mr. White's remains. Williams cited to the determination by the Louisiana State Board of Embalmers and Funeral Directors ("the Board") that there had been no violation on the part of Williams in support of their argument. Alternatively, Williams argued that Ms. White was precluded from recovery because she signed a contractual waiver of liability for injuries that could arise from her viewing of Mr. White's remains.
We note that Williams also argued that Ms. White assumed the risk of any mental or emotional damages by disregarding the warnings provided by Williams and/or its employees as to the condition of Mr. White's remains. The trial court apparently rejected that argument, as it denied Williams' motion for summary judgment. There are no issues on appeal concerning whether Ms. White assumed the risk of any mental or emotional damages.
In opposition to Williams' motion for summary judgment, Ms. White argued that there were genuine issues of material fact regarding the timing of Mr. White's death. She also challenged the Board's conclusion that there were no violations of Louisiana law, specifically claiming that Williams violated La. R.S. 37:848(D)(2-3), which provide that "if [a] body is to be held by a funeral establishment longer than thirty hours after the time of death," the body must "be embalmed," "refrigerated continuously at a temperature not to exceed forty-five degrees Fahrenheit" or otherwise properly disposed of within a certain period of time. Lastly, Ms. White admitted that, although there was no genuine issue of material fact as to her signing the contractual waiver of liability, she argued that it was, nevertheless, absolutely null pursuant to La. C,C. art. 2004 or otherwise unenforceable because it was ambiguous and/or was a contract of adhesion.
At the hearing on March 3, 2021, the trial court denied the motion for summary judgment due to the facts -both as to the condition of Mr. White's body and when it was discovered-being incomplete and conflicting. Williams then amended its answer to assert the affirmative defense of immunity from liability. Following Ms. White's deposition in July 2021 and Williams' amendment of its answer, Williams filed a second motion for summary judgment on March 1, 2022.
In Williams' second motion for summary judgment, Williams sought summary judgment dismissing Ms. White's claims on the basis of immunity from liability pursuant to La. R.S. 37:855(B), which provides funeral directors, funeral establishments, and any respective employee thereof with immunity for following the directions or relying on representations made by persons representing themselves to be the proper person for arranging funeral goods and services for the remains of a decedent. In the alternative, Williams again urged that there was no genuine issue of material fact as to whether Ms. White signed the contractual waiver of liability, thus precluding her from any recovery for injuries she allegedly sustained as a result of viewing her father's remains.
We note that the trial court found this statute to be inapplicable, and therefore, declined to grant summary judgment on this issue. Furthermore, this ruling was not challenged on appeal; therefore, we decline to address whether the immunity set forth in La. R.S. 37:855(B) provides an affirmative defense in this case.
In opposition to Williams' second motion for summary judgment, Ms. White argued that Williams was not entitled to summary judgment as a matter of law because the statutory immunity cited by Williams-La. R.S. 37.855(B)-was inapplicable, because Williams' duty to take adequate care of her father's remains was imposed by law, not by representation of someone claiming to have the authority to arrange funeral goods or services. Although not raised as an issue by Williams in its motion for summary judgment, out of an abundance of caution, Ms. White also challenged the applicability of La. R.S. 37:855(C), which provides immunity from liability for a funeral establishment or employee thereof for permitting any interested person to view human remains in the care of the funeral establishment, as unconstitutional. Ms. White opposed the validity of the contractual waiver of liability on the same grounds in her original opposition-that it was absolutely null under La. C.C. art. 2004, that it was ambiguous, and that it was adhesionary.
We note La. R.S. 37:855(C) was enacted pursuant to 2020 La. Acts, No. 329, §1, eff. June 12, 2020, which was over a year after the initial filing of Ms. White's petition. The trial court found, and we agree, that this provision is not applicable to the instant case. See La. C.C. art. 6 (providing that in the absence of a clear legislative intent stating otherwise, substantive laws only apply prospectively); Segura v. Frank , 630 So.2d 714, 723 (La. 1994) (providing that substantive laws establish or change rules, rights, or duties); and Bourgeois v. A.P. Green Indus., Inc., 2000-1528 (La. 4/3/01), 783 So.2d 1251, 1259 (providing that once a party has acquired a right to assert a cause of action prior to a change in the law, that right is a vested right). Accordingly, the trial court did not address the constitutionality of this provision and it is not an issue on this appeal. Therefore, we need not consider the issue.
After a hearing on June 1, 2022, the trial court granted the motion for summary judgment and dismissed Ms. White's claims against Williams. In written reasons for judgment issued by the trial court on June 16, 2022, the trial court found that the documents offered on summary judgment established that Ms. White was repeatedly warned not to view her father's body and was advised of the condition of his remains prior to signing the contractual waiver releasing Williams from liability arising out of viewing the body and that the contractual waiver of liability signed by Ms. White was valid. The trial court farther found the documents also established that all of Ms. White's alleged damages or injuries were derived from viewing her father's remains, and she was, therefore, precluded from recovering those damages from Williams pursuant to the contractual waiver of liability. A judgment in accordance with the trial court's ruling, granting Williams's motion for summary judgment and dismissing all of Ms. White's claims against Williams, was signed on July 11, 2022. It is from this judgment that Ms. White appeals.
ASSIGNMENTS OF ERROR
On appeal, Ms. White contends that the trial court erred in granting Williams' motion for summary judgment because the contractual waiver of liability was null pursuant to La. C.C. art. 2004. She alternatively claims that it was unenforceable because it was ambiguous and/or a contract of adhesion.
On appeal, Ms. White also argues that the trial court erred by not finding that Williams violated La. R.S. 37:848(D)(2) and (3) by improperly storing Mr. White's remains. However, this issue pertains to the merits of Ms. White's action against Williams; it was not raised in Williams' motion for summary judgment, was not properly before the trial court, and is not properly before this Court. See La. C.C.P. art. 966(F). Therefore, we decline to consider this assignment of error.
LAW AND DISCUSSION
Summary Judgment
The summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action ... and shall be construed to accomplish these ends." Jackson v. Wise, 2017-1062 (La.App. 1stCir. 4/13/18), 249 So.3d 845, 850, writ denied, 2018-0785 (La. 9/21/18), 252 So.3d 914 (quoting La. C.C.P. art 966(A)(2)). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).
A "genuine issue" is triable, meaning that reasonable people could disagree. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. In other words, if reasonable persons could only reach one conclusion, then a trial is unnecessary for that issue. Id., A fact is "material" if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of a legal dispute. South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3rd Cir. 1991), writ denied, 596 So.2d 211 (La. 1992). In other words, the presence or absence of a "materiar fact would affect the outcome of a trial on the merits. Smith, 639 So.2d at 751.
The initial burden of proof is on the mover. See La. C.C.P. art. 966(D)(1). When the party filing the motion for summary judgment will bear the burden of proof at trial, he must support his motion for summary judgment with credible evidence that would entitle him to a directed verdict if not controverted at trial. Aucoin v. Larpenter, 2020-0792 (La.App. 1st Cir. 4/16/21), 324 So.3d 626, 632, writ denied, 2021-00688 (La. 9/27/21), 324 So.3d 87. The mover can meet this burden by filing supporting documentary evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with its motion for summary judgment. La. C.C.P. art. 966(A)(4). See also Mercadel v. State Through Department of Public Safety and Corrections, 2018-0415 (La.App. 1st Cir. 5/15/19), 2019 WL 2234404 *2. The mover's supporting documents must prove the essential facts necessary to carry the mover's burden. Successions of Millet, 2021-0355 (La.App. 1st Cir. 12/22/21), 340 So.3d 252, 257; Mercadel, 2019 WL 2234404 at *2.
However, if trie moving party 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 must only point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1); see also La. C.C.P. art. 966, comments-2015, comment (j).
If the motion for summary judgment is properly supported, the burden shifts to the non-moving party to produce factual support 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. Sketchier v. Hernandez, 2020-0292 (La.App. 1st Cir. 5/19/21), 326 So.3d 912, 916. If the non-moving party fails to produce such factual support, then La. C.C.P. art. 966(D)(1) mandates the granting of the motion for summary judgment See Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La. 6/30/00), 764 So.2d 37, 40; Jenkins v. Hernandez, 2019-0874 (La.App. 1st Cir. 6/3/20), 305 So.3d 365, 371, writ denied. 2020-00835 (La. 10/20/20), 303 So.3d315.
Appellate courts review evidence de novo, using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. See Bass v. Disa Global Solutions, Inc., 2019-1145 (La.App. 1stCir. 6/12/20), 305 So.3d 903, 906, writ denied, 2020-01025 (La. 11/4/20), 303 So.3d 651. In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether or not there is a genuine issue of material fact. Van Cleave v. Temple, 2018-1353 (La.App. 1st Cir. 5/31/19), 278 So.3d 1005, 1011. 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. Georgia-Pacific Consumer Operations, LLC v. City of Baton Rouge, 2017-1553 (La.App. 1st Cir. 7/18/18), 255 So.3d 16, 22, writ denied, 2018-1397 (La. 12/3/18), 257 So.3d 194.
Waiver of Liability
On appeal, Ms. White contends that the trial court erred in granting Williams' motion for summary judgment on the basis of the contractual waiver of liability, arguing that it was invalid or absolutely null pursuant to La. C.C. art. 2004. We disagree.
Louisiana Civil Code article 2004 provides:
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.
Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
We note that although "physical injury" is not expressly defined, the jurisprudence is clear that physical injuries, such as harm that results to one's person, are separate and distinct from emotional and psychological injuries. See Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La. 1990); Gibbs v. Petroleum Helicopters, Inc., 629 So.2d 437,439 (La.App. 3rd Cir 1993).
Thus, under La. C.C. art. 2004, as long as one's negligence does not cause physical injury to another, contractual provisions are valid to eliminate or limit liability for injury due to negligence, but not for injury caused by intentional acts or gross negligence. Wilson v. Two SD, LLC , 2015-0959 (La.App. 1st Cir. 12/23/15), 186 So.3d 103, 109. See also Freeman v. Dep't of Highways, 253 La. 105, 114-115, 217 So.2d 166 (1968) (stating a clause limiting liability for intentional delays would subject the contract to a purely potestative condition, which is absolutely null).
An act is intentional when the actor either (1) consciously desires the result of his or her action, regardless of the likelihood of success, or (2) has knowledge to a substantial certainty that the harm will occur, regardless of his or her desire to achieve that result. Bazley v. Tortorich , 397 So.2d 475, 481 (La. 1981). Gross negligence is characterized as the entire absence of care with complete disregard to the rights of others. Listach v. West Baton Rouge Parish School Board, 2021-0079 (La.App. 1st Cir. 6/9/21), 328 So.3d 450, 455, writ denied, 2021-00982 (La. 11/3/21), 326 So.3d 887; Binkley v. Landry, 2000-1710 (La.App. 1st Cir. 9/28/01), 811 So.2d 18, 25, writ denied, 2001-2934 (La. 3/8/02), 811 So.2d 887.
In this case, Williams claimed in its motion for summary judgment that there was no genuine issue of material fact that Ms. White signed the contractual waiver of liability and that the contractual waiver of liability was legally enforceable; thus, Williams was entitled to judgment as a matter of law dismissing Ms. White's claims. In support of its motion for summary judgment, Williams attached several documents, including Ms. White's deposition and several sworn affidavits from employees of Williams, all of which reference the contents of the contractual waiver of liability and Ms. White's signing thereof. More specifically, the contractual waiver of liability, which was a document entitled "Release of Liability," was attached to and identified by Ms. White in her deposition, and it provided as follows:
I hereby release Williams ..., its owners and employees, of any liability incurred while viewing the unnamable remains of Richard W. White, Date of Death: 5-4-2018.
Please be advised that in the professional opinion of the Funeral Director of Williams ..., the remains should not be viewed.
The "Release of Liability" document was signed by Ms. White, as Mr. White's next of kin, and was dated May 7, 2018.
In opposition to Williams' motion for summary judgment, Ms. White admitted that she signed the contractual waiver of liability (the "Release of Liability" document); however, she argued that it was absolutely null under La. C.C. art. 2004, because Williams sought to limit its liability in advance of their allegedly negligent conduct. However, we find this argument lacks merit and is based on a misstatement of the law. As set forth above, La. C.C. art. 2004 declares clauses in contracts that limit liability in advance to be absolutely null if either (1) the damages are caused by intentional or grossly negligent acts, or (2) the harm purporting to be waived is a physical injury.
In Ms. White's deposition, she stated that all of her damages were derived from the viewing of her father's body and were psychological and emotional injuries. Thus, she did testify that she sustained any physical injuries. Furthermore, in opposition to Williams' motion for summary judgment, Ms. White did not put forth any supporting documents to establish that Williams' actions in this case were intentional, grossly negligent, or done with an entire absence of care. To the contrary, the documents reflect that Williams attempted to mitigate the damage by repeatedly warning Ms. White that the body was not ready for viewing, thus exercising enough care as to not be grossly negligent. Accordingly, because it was established that Ms. White signed the Release of Liability, that all of the damages Ms. White allegedly sustained were psychological or emotional injuries-not physical injuries-and because there was no showing of a genuine issue of material fact as to whether Williams acted intentionally or was grossly negligent, we find, as a matter of law, that the contractual waiver of liability was valid.
Contractual Interpretation, Ambiguity, and Adhesion
Ms. White alternatively asserts that the trial court erred by not finding the contractual waiver of liability to unenforceable because it is ambiguous in its application and/or is a contract of adhesion. However, we find no merit to these contentions.
When interpreting a contract, the focus is on determining the common intent of the parties. La. C.C. art. 2045. Each contractual provision must be read in pari materia with other provisions, so that each is given meaning suggested by the contract as a whole. See La. C.C. art. 2050. When the words of a contract are clear, explicit, and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. Moreover, if a contract is susceptible to two different interpretations, one rendering the contract effective and the other rendering the contract ineffective, the contract must be interpreted in the way that renders it effective. See La. C.C. art. 2049.
The first sentence of the contractual waiver of liability, as set forth above, is drafted in broad terms so as to exclude any damages that may arise from viewing the body. The second sentence qualifies the first sentence by stating that the body should not be viewed. These two provisions, when read together, make it clear that the injury contemplated by the parties was the psychological or emotional injury or distress that may arise from viewing the remains of a loved one that are in no condition to be viewed. Therefore, the contractual waiver of liability is enforceable as written.
Ms. White contends that the language of the contract is too broad and could encompass injuries such as slipping and falling, head injuries from falling light fixtures, and foot injuries caused by rolling gurneys. However, this interpretation is not only implausible, but it would also render the contract an absolute nullity due to those injuries being physical injuries, thus not waivable under La. C.C. art 2004. Since the latter interpretation would render this contract an absolute nullity, while the former, more reasonable interpretation would not, the former interpretation must be applied pursuant to La. C.C. art. 2049. Therefore, the contractual waiver of liability is enforceable despite any alleged ambiguity.
Lastly, with regard to Ms. White's claim of adhesion, a contract of adhesion is a standard contract, usually printed and often in small print, prepared by one party with superior bargaining power for the adherence or rejection of a weaker party. Aguillard v. Auction Management Corp., 2004-2804 (La. 6/29/05), 908 So.2d 1, 9, citing S. Litvinoff, 6 Louisiana Civil Law Treatise-Obligations (Book I), § 194, pp. 346-349 (1969); Ameriprint, LLC v. Canon Solutions America, Inc., 2021-94 (La.App. 5th Cir. 5/24/21), __So.3d __, __, 2021 WL 2093283 *3. The issue presented by a contract of adhesion is whether the party truly consented to all the printed terms. Aguillard, 908 So.2d at 9, citing Saul Litvinoff, Consent Revisited: Offer Acceptance Option Right of First Refusal and Contracts of Adhesion in the Revision of the Louisiana Law of Obligations, 47 La. L. Rev. 699, 757-759 (1987).
As previously set forth, in support of Williams' motion for summary judgment, it established through the affidavits of Williams' employees and the deposition of Ms. White that Ms. White signed the Release of Liability and that she knew of the contents of the document. Thus, the burden shifted to Ms. White to show a genuine issue of material fact regarding her consent to the waiver, but she failed to do so-Ms. White admitted that she signed the document and that she knew of its contents. Moreover, it cannot be said that there was a large disparity in bargaining power between Williams and Ms. White. Although Ms. White would not have been able to view her father's body at the moment she demanded on the morning of May 7, 2018 had she not signed the contractual waiver of liability, she would have been afforded an opportunity to view her father's body after Williams had time to adequately prepare the body.
For all of the foregoing reasons, we find that Williams established Ms. White signed a valid and enforceable contractual waiver of liability for the damages allegedly sustained by Ms. White in viewing her father's remains, and that Ms. White failed to meet her burden of demonstrating a genuine issue of material fact or that Williams was not entitled to judgment as a matter of law. Therefore, the trial court properly granted Williams' motion for summary judgment and dismissed Ms. White's claims against Williams.
CONCLUSION
For all of the above and foregoing reasons, the July 11, 2022 judgment of the trial court granting DT Williams LLC d/b/a/ Williams Funeral Home's motion for summary judgment and dismissing Tanya White's claims is affirmed. All costs of this appeal are assessed to the plaintiff/appellant, Tanya White.
AFFIRMED.