Bell ex rel. Cox v. Big Star of Tallulah, Inc.
| Decision Date | 11 August 2021 |
| Docket Number | No. 54,032-CA,54,032-CA |
| Parties | Crystal BELL O/B/O D'arbri COX, Plaintiff-Appellant v. BIG STAR OF TALLULAH, INC. and AmTrust North America, Inc., Defendants-Appellees |
| Court | Court of Appeal of Louisiana — District of US |
S. DOUGLAS BUSARI & ASSOC., LLC, By: S. Douglas Busari, Tallulah, Counsel for Appellant
BLUE WILLIAMS, L.L.P., Metairie, By: Robert I. Baudouin, Richard E. Gruner, Jr., Counsel for Appellees
Before MOORE, GARRETT, and STEPHENS, JJ.
The plaintiff, a woman seven months pregnant, slipped and fell on a foreign substance on the floor of a grocery store. Three months later, she gave birth to a child severely disabled due to prenatal brain hemorrhaging. She sued the grocer for her damages and those suffered by the infant, whose disabilities she alleged arose from injuries sustained in the slip and fall. Following discovery, the grocer and its insurer moved for summary judgment on grounds that the plaintiff could not meet her burden of proof under La. R.S. 2800.6, the Merchant Liability statute. After a hearing, the trial court agreed and granted summary judgment in favor of the defendants dismissing the plaintiff's claims.
This appeal followed. We affirm.
Late on a Sunday afternoon, October 27, 2017, Crystal Bell slipped and fell while walking through the chip and water aisle of the Big Star of Tallulah, Inc., a/k/a Doug's Market, a grocery store in Tallulah, Louisiana. Ms. Bell was not pushing a grocery cart when the accident occurred; rather, she was carrying her grocery items in her arms as she headed to the front of the store.
Ms. Bell stated that she was walking into the aisle when she suddenly did a split on the floor landing on the bottom of her stomach. Her grocery items scattered everywhere. She said she "blanked out," but when she came to she saw some white stuff on the floor. She did not recall whether there was a lot or a little of this substance on the floor, but she said that one pant leg was wet from it. She was wearing shoes that she described as "flats."
Ms. Bell reported the fall to the assistant manager, Boyd Wyatt, whom she said she had seen on a nearby aisle before the accident. Wyatt got some paper towels and went with Ms. Bell to the location of the accident. He described the foreign substance as a clear, whitish-looking substance about the size of a nickel. He speculated that it was mayonnaise or salad dressing possibly spilled from a sandwich by someone eating while walking through the store. He cleaned it up with a paper towel. Ms. Bell said that Wyatt had some difficulty cleaning black scuff marks made through the substance, which she said were possibly from a grocery cart; however, this testimony was not corroborated by Wyatt's deposition testimony. Wyatt said that he wrote down Ms. Bell's account of the accident on a pad and placed it on the store manager's desk. The record contains a copy of the note, which reads:
The note also has Ms. Bell's address and telephone number and is signed, "Mr. Wyatt, asst. manager."
Stuart Allen King, the store manager, had already left for the day about 3:00 p.m. when the accident occurred. He did not learn of the incident until the following morning. He said he immediately contacted the insurance carrier.
The store has a video surveillance system consisting of 31 cameras focused on areas throughout the store. Wyatt did not customarily review video footage; he said that King was the person to do so. He asked King about the results of the video surveillance of Ms. Bell's accident, and King told him that the video did not show anything.
After she gave Wyatt her account of the accident, Ms. Bell finished purchasing her items and returned to the car in the parking lot where her friend Cassie Stewart was waiting. Ms. Stewart said that Ms. Bell walked out of the store dragging one leg and her pants were wet. Ms. Stewart drove Ms. Bell to the Madison Parish Hospital emergency room, in Tallulah. The medical record of her visit indicates that Ms. Bell arrived at the hospital at 5:58 PM. She complained of pain in her left elbow, left leg, pelvic and lower back resulting from a fall. The report notes that Ms. Bell was not in acute distress and was calm and cooperative; her due date was 1/20/2018; and the medical staff monitored the baby's heartbeat as well as Ms. Bell's. Ms. Bell was taking medication, Methyldopa, for her blood pressure three times daily. She was given Tylenol for pain and released with instructions to follow up with her treating physician within 48 hours.
According to Ms. Bell, other than pelvic pain, the first indication that something might be wrong regarding her pregnancy was on January 4, 2018, when she had a scheduled visit with her OB-GYN who she said was going to schedule a C-section for her on January 10. Instead, he told her to go to Glenwood Medical Center, in West Monroe, to be admitted for observation. She attributed his concerns to her elevated blood pressure, which she attributed to the pain. After her admission at Glenwood, the staff began prepping her for a C-section. Ms. Bell gave birth to a baby girl, D'arbri Cox, on January 5, 2018.
Approximately one hour after her birth, the baby was transferred to St. Francis Medical Center, in Monroe, and placed in the NICU due to respiratory depression. A CT scan showed massive hemorrhagic events in the child's brain, injury to her sagittal sinus with bleeding in the intraparenchymal region in the proximity of the sagittal sinus on the right side; and, a subgaleal hematoma in the same region. There was also evidence of epidural, subdural, subgaleal hematomas and massive frontal bilateral hematomas. According to Ms. Bell, the child spent most of the next five months in the hospital undergoing two surgeries before she was allowed to go home. She said D'arbri currently lives with her and receives therapy three times per week.
On September 7, 2018, 11 months after the accident, Ms. Bell filed suit against Big Star of Tallulah, Inc. (a/k/a Doug's IGA Grocery Store), and its insurer, later identified as Republic Fire and Casualty Insurance Company (hereinafter, collectively referred to as "Big Star"). The petition sought damages for pain and suffering, mental anguish, permanent injuries and disability, economic losses, and loss of enjoyment of life.
Big Star denied the allegations and raised several affirmative defenses including Ms. Bell's exclusive fault, comparative fault, failure to mitigate damages, and third-party fault. Following discovery, Big Star moved for summary judgment on grounds that Ms. Bell could not meet her burden of proof pursuant to La. R.S. 2800.6.
At the hearing on the motion, Big Star argued that the nickel-sized dollop of mayonnaise did not create an unreasonable risk of harm, nor was it a foreseeable risk; the grocery store did not create the hazard, nor did it have constructive notice of the presence of a foreign substance on the floor; and the store had in place adequate safety precautions and procedures that were followed on the day of the accident.
The trial court agreed with Big Star in all respects and granted summary judgment. This appeal followed.
On appeal, Ms. Bell raises two assignments of error. First, she alleges the trial court erred by granting summary judgment when she presented positive evidence of the existence of the condition for a period of time prior to her slip and fall. Second, she contends that the trial court erred by not addressing the issue of spoliation of evidence.
Appellate courts review motions for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Matlock v. Brookshire Grocery Co. , 53,069 (La. App. 2 Cir. 11/20/19), 285 So. 3d 76, writ denied , 20-00259 (La. 4/27/20), 295 So. 3d 389 ; Bank of Am., N.A. v. Green , 52,044 (La. App. 2 Cir. 5/23/18), 249 So. 3d 219. Summary judgment is favored by law and provides a vehicle by which the just, speedy, and inexpensive determination of an action may be achieved. La. C.C.P. art. 966(A)(2). We review the record and all reasonable inferences to be drawn from it in the light most favorable to the nonmoving party. Matlock, supra.
A motion for summary judgment shall be granted if, after adequate discovery, the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).
La. C.C.P. art. 966(D)(1) provides:
The burden of proof rests with the mover. Nevertheless, if the mover 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's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to 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. The burden is on the adverse party to produce factual support sufficient 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.
In this case, the defendants assert that Ms. Bell does not have, nor can she produce, factual support to establish the essential elements of her claim under the Merchant Liability statute, La. R.S. 9:2800.6, which provides, in part:
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