Clark v. J-H-J Inc., 2013 CA 0432.
| Decision Date | 01 November 2013 |
| Docket Number | No. 2013 CA 0432.,2013 CA 0432. |
| Parties | Annette CLARK v. J–H–J INC. d/b/a Piggly Wiggly and Bunker Hill Underwriters Agency Inc. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Anne E. Watson, Opelousas, LA, for Plaintiff–Appellant, Annette D. Clark.
Nicholas J. Zeringue, Thibodaux, LA, for Defendants–Appellees, J–H–J, Inc, d/b/a Piggly Wiggly & Bunker Hill Underwriters Agency, Inc.
Before PETTIGREW, McDONALD, and McCLENDON, JJ.
Plaintiff, Annette Clark, a store patron who slipped and fell on a dark colored liquid substance, allegedly sustaining injuries, appeals a judgment that granted the motion for summary judgment of defendants, J–H–J, Inc. d/b/a Piggly Wiggly and its insurer Great Midwest Insurance Company (hereinafter “Piggly Wiggly”), and dismissed her suit with prejudice. For the reasons that follow, we affirm.
On August 12, 2010, Ms. Clark allegedly slipped on a liquid substance and fell near the check-out counter at the Piggly Wiggly in Baton Rouge, Louisiana, where she regularly shopped for groceries. Ms. Clark, who was alone at the time, had been in the store for approximately fifteen to twenty minutes shopping and then proceeded to check out. Ms. Clark indicated she took about two or three steps away from the check-out counter, “and [her] right foot went that way and [she] went down on [her] left knee.” Ms. Clark sustained a broken knee cap, which required surgery to repair. On August 1, 2011, Ms. Clark filed suit against Piggly Wiggly 1 for injuries allegedly sustained as a result of her fall.
On June 13, 2012, Piggly Wiggly filed a motion for summary judgment alleging it was entitled to judgment as a matter of law as there was no genuine issue of material fact with respect to liability. Piggly Wiggly argued that Ms. Clark could not establish that it either created the hazardous condition or had actual or constructive notice of any such condition as required by La. R.S. 9:2800.6. Following a hearing on the motion, the trial court agreed and rendered summary judgment in favor of Piggly Wiggly on December 20, 2012, dismissing Ms. Clark's claims, with prejudice. From this judgment, Ms. Clark appeals, contending that the trial court erred in granting summary judgment in favor of Piggly Wiggly as there were genuine issues of material fact that precluded same.
Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court's determination of the issues. Berard v. L–3 Communications Vertex Aerospace, LLC, 2009–1202, p. 5 (La.App. 1 Cir. 2/12/10), 35 So.3d 334, 339–340,writ denied,2010–0715 (La.6/4/10), 38 So.3d 302. The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La.Code Civ. P. art. 966(A)(2). Its purpose is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 2004–0806, p. 7 (La.6/25/04), 876 So.2d 764, 769. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgmentas a matter of law. La.Code Civ. P. art. 966(B)(2).2
On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Janney v. Pearce, 2009–2103, p. 5 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 288–289,writ denied,2010–1356 (La.9/24/10), 45 So.3d 1078.
In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines, 2004–0806 at 1, 876 So.2d at 765. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Daniels v. USAgencies Cas. Ins. Co., 2011–1357, p. 8 (La.App. 1 Cir. 5/3/12), 92 So.3d 1049, 1055.
Louisiana Revised Statutes 9:2800.6 sets forth the burden of proof for a plaintiff in a claim against a merchant for damages due to a fall on the premises. As amended by 1996 La. Acts, No. 8, § 1, which amendments took effect May 1, 1996, subsection (B) requires the plaintiff to prove that:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
To prove constructive notice, the plaintiff must show that the substance remained on the floor “for such a period of time that it would have been discovered if the merchant had exercised reasonable care.” La. R.S. 9:2800.6(C)(1).
In White v. Wal–Mart Stores, Inc., 97–0393 (La.9/9/97), 699 So.2d 1081, the Louisiana Supreme Court noted that the temporal element in a slip and fall claim requires a “positive showing” by the plaintiff that the hazardous condition existed for some time prior to the fall.3 The White court noted as follows:
There is a temporal element included: “such a period of time ...” The statute does not allow for the inference of constructive notice absent some showing of this temporal element. The claimant must make a positive showing of the existence of the condition prior to the fall. A defendant merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall. Notwithstanding that such would require proving a negative, the statute simply does not provide for a shifting of the burden.
Though there is no bright line time period, a claimant must show that “the condition existed for such a period of time ...” Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. This is not an impossible burden.
White, 97–0393 at 4–5, 699 So.2d at 1084–1085 (footnote omitted).
In the instant case, Ms. Clark argues that she can satisfy her burden of proving that Piggly Wiggly had constructive notice of the existence of the substance on the floor before her fall simply by the mere presence of cashiers in the area where she fell. She further directs the court's attention to the accident report, wherein a Piggly Wiggly employee described the condition that caused the accident as “It appears that another customer rolled in a basket with busted cokes dripping and [Ms.] Clark fell in the path of that buggy.” Ms. Clark asserts that if a Piggly Wiggly employee knew the cause of the spill, it should have been cleaned up. In essence, Ms. Clark contends there is a genuine issue as to whether the condition...
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