Coleman v. Wal-Mart Stores, Inc.
| Decision Date | 06 November 1998 |
| Docket Number | No. 98 CW 0124.,98 CW 0124. |
| Parties | Patricia A. COLEMAN and Elder Joseph Coleman, III v. WAL-MART STORES, INC. and XYZ Insurance Company. |
| Court | Court of Appeal of Louisiana — District of US |
Geoffrey J. Orr, Metairie, for defendant/relator Wal-Mart Stores, Inc.
Travis L. Bourgeois, New Orleans, Alan M. Black, Slidell, for plaintiffs/respondents Patricia A. Coleman and Elder Joseph Coleman, III.
Before SHORTESS, C.J., and CARTER and WHIPPLE, JJ.
This matter is before us on remand from the Louisiana Supreme Court. At issue is the trial court's denial of defendant/relator's motion for summary judgment in a store slip and fall case.
Plaintiffs, Patricia and Elder Coleman, filed suit against relator, Wal-Mart Stores, Inc., seeking damages arising from the slip and fall Elder had on August 5, 1991. After a jury trial, judgment was signed on February 22, 1994, in conformity with the jury verdict in favor of Wal-Mart. The trial court then granted a new trial due to its failure to instruct the jury on strict liability. This court, acting through another panel, issued a ruling on defendant's application for supervisory writs on September 12, 1994, under docket number 94 CW 1214 and reversed the granting of the new trial, stating:
Plaintiffs concede in brief that there was no evidence introduced at trial that would prove or indicate the period of time that the foreign substance was on the floor. Under [LSA-]R.S. 9:2800.6 and Welch, et al. v. Winn-Dixie Louisiana, Inc., et al., 92-2372 (La.App. 1st Cir.8/22/94), , the trial court erred in granting the new trial.
However, on May 22, 1995, the Louisiana Supreme Court reversed the First Circuit's decision in Welch v. Winn Dixie Louisiana, Inc., 94-2331 (La.5/22/95); 655 So.2d 309. Thus, on December 7, 1995, this court, in a decision with one judge dissenting, granted a rehearing, recalled the earlier writ action and reinstated the trial court's ruling granting the motion for new trial. The Louisiana Supreme Court denied writs on February 28, 1996. Coleman v. Wal-Mart Stores, Inc., 96-0065 (La.2/28/96); 668 So.2d 362. Accordingly, the case was remanded to the trial court to proceed with the order granting a new trial. In the meantime, the Louisiana Supreme Court overruled its holding in Welch by its decision in White v. Wal-Mart Stores, Inc., 97-0393, p. 1 (La.9/9/97); 699 So.2d 1081, 1082.
Thereafter, on remand, Wal-Mart filed a motion for summary judgment using relevant portions of the transcript of the prior trial and discovery depositions. Relator contended that there was no evidence to show it had actual knowledge of the substance on the floor causing plaintiff's slip and fall. Relator further contended that in the absence of actual knowledge, plaintiffs were required to establish by positive proof the temporal element required by LSA-R.S. 9:2800.6(C) (1991), as interpreted by the Louisiana Supreme Court in White v. Wal-Mart Stores, Inc., to show relator had constructive knowledge. Relator maintained that because plaintiffs had failed at the first trial to show that the liquid had been on the floor for some time before Coleman's fall, and further, because plaintiffs had indicated that they would offer no new witnesses or exhibits, plaintiffs could not prove this essential element of their claim, i.e., the temporal element necessary to charge relator with constructive knowledge. Thus, relator argued, it was entitled to summary judgment dismissing plaintiffs' claims as a matter of law. Plaintiffs filed an opposition to Wal-Mart's motion for summary judgment, and after a hearing on the motion on December 5, 1997, relator's motion was denied by judgment dated December 18, 1997.
From the trial court's denial of the motion for summary judgment, Wal-Mart filed a supervisory writ application to this court, which was denied. Coleman v. Wal-Mart Stores, Inc., 98 CW 0124 (La.App. 1st Cir.4/15/98). Relator then applied to the Louisiana Supreme Court for review of this court's denial of the writ application. On June 19, 1998, the Louisiana Supreme Court granted the application for writ of certiorari and ordered a remand of the matter to this court for briefing, argument and opinion. Coleman v. Wal-Mart Stores, Inc., 98-1277 (La.6/19/98); 720 So.2d 1208.
On remand from the Supreme Court, Wal-Mart contends the trial court erred in its application of LSA-C.C.P. art. 966(C) and erred in denying its motion for summary judgment.
A motion for summary judgment is a procedural device used to avoid a full-scale trial where there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1st Cir.6/20/97); 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97); 703 So.2d 29. It should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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.
Previously, our cases held that summary judgments were not favored and were to be used cautiously and sparingly. Any doubt was to be resolved against granting the motion and in favor of a trial on the merits. However, in 1996, the legislature amended LSA-C.C.P. art. 966 to overrule the presumption in favor of trial on the merits. Summary judgments are now favored, and the documents submitted by both parties are to be equally scrutinized. Berzas v. OXY USA, Inc., 29,835, pp. 4-5 (La.App. 2nd Cir.9/24/97); 699 So.2d 1149, 1152; Hayes v. Autin, 96-287, p. 6 (La.App. 3d Cir.12/26/96); 685 So.2d 691, 694,writ denied,97-0281 (La.3/14/97); 690 So.2d 41.
In 1997, by Act No. 483, the legislature again amended LSA-C.C.P. art. 966 to incorporate the federal summary judgment analysis. The 1997 amendment to LSA-C.C.P. art. 966 applies retroactively and is to be utilized by this court in assessing summary judgments granted prior to the effective date of the amendment. Morgan v. Earnest Corp., 97-0869, p. 7 (La.App. 1st Cir.11/7/97); 704 So.2d 272, 276, writ denied, 97-3031 (La.2/20/98); 709 So.2d 775. Under the amended version of LSA-C.C.P. art. 966, the initial burden continues to remain with the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense, the nonmoving party then must produce factual support sufficient to satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. LSA-C.C.P. arts. 966 and 967; Berzas, 29,835 at p. 8; 699 So.2d at 1154.
Appellate courts review summary judgments de novo under the same criteria that govern the trial court's determination of whether a summary judgment is appropriate. Sanders, 96-1751 at p. 7; 696 So.2d at 1035. 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 this case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1st Cir.12/29/97); 706 So.2d 525, 528.
Louisiana Revised Statute 9:2800.6 (1991), as revised in 1990 and in effect at the time of the instant accident, addressed the burden of proof in claims against merchants and provided in relevant part:
The Louisiana Supreme Court has held that the burden of proof rests with the plaintiff to prove each of the three elements set forth in LSA-R.S. 9:2800.6(B). White, 97-0393 at p. 4; 699 So.2d at 1084. Thus, to recover against a merchant, the claimant must prove: (1) the condition which caused the injury created a foreseeable and unreasonable risk of harm; (2) the merchant had actual or constructive notice that the condition existed for a period of time prior to the accident; and (3) the merchant failed to exercise reasonable care. White, 97-0393, p. 4 (La.9/9/97); 699 So.2d at 1084. As set forth in White, the failure to prove any one of the three elements will negate a claimant's cause of action.
In White, the Louisiana Supreme Court discussed constructive notice and the need for positive proof of the temporal element, stating as follows:
[B]ecause constructive notice is plainly defined to include a mandatory temporal element, we find that where a claimant is relying upon constructive notice under La. R.S. 9:2800.6(B)(2) (1991), the claimant must come forward with positive evidence showing that the damage-causing condition existed for some period of time, and that such time was sufficient to...
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