Tomaso v. Home Depot, U.S.A., Inc.

Decision Date05 June 2015
Docket NumberNo. 2014 CA 1467.,2014 CA 1467.
Citation174 So.3d 679
PartiesBenjamin TOMASO v. HOME DEPOT, U.S.A., INC. and KYZ Insurance Company.
CourtCourt of Appeal of Louisiana — District of US

174 So.3d 679

Benjamin TOMASO
v.
HOME DEPOT, U.S.A., INC. and KYZ Insurance Company.

No. 2014 CA 1467.

Court of Appeal of Louisiana, First Circuit.

June 5, 2015.


174 So.3d 679

James E. Shields, Sr., Gretna, LA, for Plaintiff/Appellant Benjamin Tomaso.

174 So.3d 680

Megan S. Peterson, M. Davis Ready, New Orleans, LA, for Defendant/Appellee Homes Depot, U.S.A., Inc.

Before WHIPPLE, C.J., McCLENDON, and HIGGINBOTHAM, JJ.

Opinion

McCLENDON, J.

A store patron appeals a summary judgment dismissing his suit for alleged injuries sustained when he fell from a lawn tractor. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 18, 2012, Benjamin Tomaso visited the Home Depot store located on Northshore Boulevard in Slidell, Louisiana. Mr. Tomaso parked his vehicle near the main entrance to the store, while his fiancée entered the store to return an item. Mr. Tomaso noticed lawn tractors near the store entrance, so he exited his vehicle and sat on one of the lawn tractors to “check it out.”

According to Mr. Tomaso, a Home Depot employee who was pushing a line of shopping carts back to the store's entrance requested that Mr. Tomaso get off of the lawn tractor because there was insufficient room to push the carts between Mr. Tomaso's parked vehicle and the tractor. As Mr. Tomaso attempted to get off the lawn tractor, he fell. At the time he fell, Mr. Tomaso was not sure what caused him to fall. After he fell, Mr. Tomaso noticed a small zip tie present on the footplate, or deck access panel, of the lawn tractor. Mr. Tomaso indicated that the zip tie was the “only thing” that could have caused him to fall.

On April 17, 2013, Mr. Tomaso filed suit against Home Depot, U.S.A., Inc., alleging that his “foot was snagged by a ... hazard ... that had negligently not been removed from the subject lawnmower,” which caused him extensive injuries.

On December 9, 2013, Home Depot filed a motion for summary judgment. Home Depot asserted that the zip tie was not a defective condition or otherwise inherently dangerous. Home Depot also asserted that Mr. Tomaso presented no evidence that any injury resulting from a zip tie was foreseeable or that Home Depot should have known that an injury could occur. Home Depot further urged that Mr. Tomaso could not prove causation because he was not sure what caused him to fall, but once he saw the zip tie, he considered that the only possible explanation.

After two continuances and to allow the taking of additional discovery, the trial court heard Home Depot's motion for summary judgment on May 19, 2014. Following the hearing, the trial court granted Home Depot's motion and dismissed plaintiff's action against Home Depot.

Mr. Tomaso has appealed, assigning the following as error:

1. The Trial court erred in finding Appellee was not negligent for failure to remove zip ties from the lawnmower(s) before allowing Appellant (patrons) to climb on the lawnmower(s) for inspection.
2. The Trial court erred in finding the negligently left zip tie on the lawnmower was not a hazard.
3. The Trial court erred in finding that the negligently left zip tie on the lawnmower was not an unreasonable risk of harm.
4. The Trial court erred in finding that Appellee's supervisor employee was not negligent in ordering Appellant to immediately alight the lawnmower without warning Appellant of the
174 So.3d 681
negligent hazardous zip tie as he was alighting from the lawnmower.

DISCUSSION

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA–C.C.P. art. 969 ; the procedure is favored and shall be construed to accomplish these ends. LSA–C.C.P. art. 966(A)(2). Summary judgment shall be rendered in favor of the mover if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion, show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA–C.C.P. art. 966(B)(2). The burden of proof to show that no material factual issue exists is on the mover. However, if the party moving for summary judgment will not bear the burden of proof at trial, the mover is not required to negate all essential elements of the adverse party's claim. Rather, the mover must point out to the trial court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of

proof at trial, there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA–C.C.P. art. 966(C)(2).

An appellate court reviews a trial court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court's...

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34 cases
  • Mills v. Cyntreniks Plaza, L.L.C.
    • United States
    • Court of Appeal of Louisiana (US)
    • August 19, 2015
    ...entitled to judgment as a matter of law. LSA–C.C.P. art. 966(B)(2) ; Tomaso v. Home Depot, U.S.A., Inc., 14–1467 (La.App. 1 Cir. 6/5/15), 174 So.3d 679, 681. The burden of proof remains with the movant. LSA–C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at t......
  • Alvarado v. Lodge at the Bluffs, LLC
    • United States
    • Court of Appeal of Louisiana (US)
    • March 29, 2017
    ...exercise of reasonable care, should have known of the defect. See Tomaso v. Home Depot, U.S.A., Inc. , 14-1467 (La.App. 1 Cir. 6/5/15), 174 So.3d 679, 682. The concept of constructive knowledge under Article 2317.1 imposes a reasonable duty on the owner or custodian to discover apparent def......
  • Alvarado v. Lodge At the Bluffs, LLC, 2016 CA 0624
    • United States
    • Court of Appeal of Louisiana (US)
    • March 29, 2017
    ...of reasonable care, should have knownPage 7 of the defect. See Tomaso v. Home Depot, U.S.A., Inc., 14-1467 (La. App. 1 Cir. 6/5/15), 174 So. 3d 679, 682. The concept of constructive knowledge under Article 2317.1 imposes a reasonable duty on the owner or custodian to discover apparent defec......
  • Blake Int'l, U.S.A. Rigs, L.L.C. v. State
    • United States
    • Court of Appeal of Louisiana (US)
    • September 18, 2015
    ...entitled to judgment as a matter of law. LSA–C.C.P. art. 966(B)(2) ; Tomaso v. Home Depot, U.S.A., Inc., 14–1467 (La.App. 1 Cir. 6/5/15), 174 So.3d 679, 681. The burden of proof remains with the movant. LSA–C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at t......
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