942065 La.App. 1 Cir. 6/23/95, Perkins v. K-Mart Corp.

• Decision Date: 23 June 1995
• Citation: 657 So.2d 725
• Parties: Cir
• Court: Court of Appeal of Louisiana — District of US

Page 725

657 So.2d 725

942065 La.App. 1 Cir. 6/23/95

Yvette PERKINS v. K-MART CORPORATION.

No. 94 CA 2065.

Court of Appeal of Louisiana First Circuit.

June 23, 1995.

Rehearing Denied July 25, 1995.

Adair D. Jones, Baton Rouge, for plaintiff/appellant-Yvette Perkins.

Ian A. MacDonald, Lafayette, for defendant/appellee-K-Mart Corp.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

[942065 La.App. 1 Cir. 2] CARTER, Judge.

This is an appeal from a trial court judgment granting the defendant's motion for summary judgment.

FACTS

At approximately 10:00 a.m. on March 13, 1993, plaintiff, Yvette Perkins, was attacked and robbed in the K-Mart parking lot located at 5905 Florida Boulevard in Baton Rouge. On January 21, 1994, plaintiff filed an action for damages with interrogatories against K-Mart Corporation (K-Mart). Plaintiff alleged that K-Mart was negligent in that it breached its duties to plaintiff in the following respects:

(1) failing to keep a proper lookout for the safety of its patrons;

(2) failing to provide adequate warning and security to protect patrons against hazards which the defendant knew or should have known to exist;

(3) failing to avoid obvious, known, and foreseeable hazards;

(4) failing to operate the business in a safe and prudent manner with due regard to the safety and property of others;

(5) failing to warn the plaintiff of obvious, known, and foreseeable hazards;

(6) allowing the plaintiff to be accosted, threatened, terrorized, assaulted, endangered, and robbed; and,

(7) any other act of negligence, fault, or breach of duty which may be proved at the trial of this matter.

On May 11, 1994, K-Mart filed a motion for summary judgment, contending that there were no genuine issues of material fact in dispute and that it was entitled to judgment as a matter of law. K-Mart argued that plaintiff could not establish the facts necessary to prove that K-Mart owed a duty to protect her from criminal acts of an unidentified third person. In support of its motion for summary judgment, K-Mart filed excerpts from plaintiff's deposition and its answers to plaintiff's interrogatories. K-Mart's answer to interrogatory number six indicates that it had no knowledge of any criminal attack before the date of the alleged criminal attack on plaintiff.

[942065 La.App. 1 Cir. 3] In opposition to K-Mart's motion for summary judgment, plaintiff filed an affidavit, stating, among other things, that she did not have personal knowledge of previous criminal activities at K-Mart.

On June 6, 1994, a hearing was held on K-Mart's motion for summary judgment, and the trial court granted the motion. In his oral reasons for judgment, the trial judge indicated that, based on the evidence, it was undisputed that K-Mart had no knowledge of any prior criminal activities in its parking lot. Therefore, the judge reasoned that, based on Louisiana jurisprudence, K-Mart had no duty to protect plaintiff from unforeseeable criminal acts of an independent third person. On June 16, 1994, the trial judge signed a judgment, granting K-Mart's motion for summary judgment and dismissing plaintiff's claims against K-Mart.

On June 17, 1994, plaintiff filed a motion for a new trial, contending that the judgment was contrary to the law and the evidence. Plaintiff also alleged that K-Mart deceived the court in its answer to plaintiff's interrogatory number six, i.e., that it had no personal knowledge of previous criminal activities in its parking lot. Attached to plaintiff's motion for a new trial was a copy of a July 27, 1991, newspaper article about a K-Mart patron being shot by a robbery suspect in the K-Mart parking lot located at 5905 Florida Boulevard in Baton Rouge. On June 17, 1994, the trial court denied plaintiff's motion for new trial.

Plaintiff appealed from the June 16, 1994, judgment, assigning the following specifications of error:

1. The court erred in granting the defendant's summary judgment where the defendant's summary judgment was not accompanied by supporting affidavits, and plaintiff's opposing affidavit showed that there were genuine issues of material facts.

2. The court erred in denying the plaintiff's motion for a new trial where the record clearly shows the defendant committed fraud or ill practice in claiming it had no knowledge of previous criminal activities.

[942065 La.App. 1 Cir. 4] SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d 1115, 1120 (La.App. 2nd Cir.), writ denied, 587 So.2d 695 (La.1991). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that 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; Thompson v. South Central Bell Telephone Company, 411 So.2d 26, 27 (La.1982); Legros v. Norcen Exploration, Inc., 583 So.2d 859, 860 (La.App. 1st Cir.), writs denied, 588 So.2d 101, 109 (La.1991).

A fact is material if its existence is essential to the plaintiff's cause of action under the applicable theory of recovery and without which the plaintiff could not prevail. Material facts are those that potentially insure or preclude recovery, affect the litigant's ultimate success, or determine the outcome of a legal dispute. Penalber v. Blount, 550 So.2d 577, 583 (La.1989).

The burden is upon the mover for summary judgment to show that no genuine issue of material fact exists, and only when reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law is summary judgment warranted. Robertson v. Our Lady of Lake Regional Medical Center, 574 So.2d 381, 384 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1136 (La.1991). To satisfy this burden, the mover must meet a strict standard by showing that it is quite clear as to what the truth is and exclude any real doubt as to the existence of material fact. Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d at 1120. The court must closely scrutinize the papers supporting the position of the mover, while the papers of the party opposing the motion are to be treated indulgently. Ortego v. Ortego, 425 So.2d 1292, 1297 (La.App. 3rd Cir.1982), writ denied, 429 So.2d 147 (La.1983).

When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided, must set forth specific facts showing that there is a [942065 La.App. 1 Cir. 5] genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. LSA-C.C.P. art. 967.

Summary judgments are not favored and should be used cautiously and sparingly. Penalber v. Blount, 550 So.2d at 583. In determining whether material facts have in fact been disposed of, any doubt is to be resolved against granting the summary judgment and in favor of trial on the merits. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980). This is true even if grave doubt exists as to a party's ability to establish disputed facts at trial. Equipment, Inc. v. Anderson Petroleum, Inc., 471 So.2d 1068, 1070-71 (La.App. 3rd Cir.1985). Where the trial court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits, and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Jones v. Briley, 593 So.2d 391, 393 (La.App. 1st Cir.1991).

Appellate courts are to review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Sun Belt Constructors, a Division of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350, 352 (La.App. 5th Cir.1988).

DUTY OF K-MART

In order to prevail in Louisiana in a negligence action under a duty-risk analysis, the plaintiff must prove (1) that the defendant owed a duty of care to the plaintiff; (2) that the defendant breached the duty; (3) that the breach was a cause in fact of the harm; and (4) that the risk and harm encountered by the plaintiff fall within the scope of the protection afforded by the duty breached (proximate cause). Coblentz v. North Peters Parking, Inc., 533 So.2d 98, 101 (La.App. 4th Cir.1988); Crochet v. Hospital Service District No. 1 of Terrebonne Parish, 476 So.2d 516, 517 (La.App. 1st Cir.), writ [942065 La.App. 1 Cir. 6] denied, 478 So.2d 1235 (La.1985). The plaintiff must also prove resultant damages. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1370 (La.1984).

Although a business establishment is not the insurer of the safety of its patrons, it is under a duty to take reasonable care for the safety of its patrons. Rodriguez v. New Orleans Public Service, Inc., 400 So.2d 884, 887 (La.1981); Willie v. American Casualty Company, 547 So.2d 1075, 1081 (La.App. 1st Cir.1989), amended on remand by 576 So.2d 1023 (La.App. 1st Cir.), writs denied, 584 So.2d 678 (La.1991); Coblentz v. North Peters Parking, Inc., 533 So.2d at 101; Miles v. Flor-Line Associates, 442 So.2d 584, 586 (La.App. 1st Cir.1983); Phillips v. Equitable Life Assurance Company of the United States, 413 So.2d 696, 698 (La.App. 4th Cir.), writ denied, 420 So.2d 164 (La.1982); Pennington v. Church's Fried Chicken, Inc., 393 So.2d 360, 362 (La.App. 1st Cir.1980). However, this duty does not extend...