Ducre v. Greater Lakeside Causeway Corp.
| Decision Date | 17 August 2022 |
| Docket Number | 22-C-93 |
| Citation | 348 So.3d 201 |
| Parties | Beatrice DUCRE v. GREATER LAKESIDE CAUSEWAY CORP., Causeway LLC of Delaware and XYZ Insurance Company |
| Court | Court of Appeal of Louisiana — District of US |
COUNSEL FOR PLAINTIFF/RESPONDENT, BEATRICE DUCRE, John D. Sileo, New Orleans, Casey W. Moll, New Orleans
COUNSEL FOR DEFENDANT/RELATOR, GREATER LAKESIDE, LLC (IMPROPERLY NAMED AS "GREATER, LAKESIDE CAUSEWAY CORP., CAUSEWAY LLC OF DELAWARE"), Sidney J. Angelle, New Orleans, Erik L. Vollenweider
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and John J. Molaison, Jr.
Relators, Defendants Greater Lakeside LLC and XYZ Insurance Company, seek this Court's supervisory review of the trial court's judgment of February 7, 2022 denying their motion for summary judgment. After a review of the pleadings, writ application, and opposition, we grant the writ application and reverse the trial court's decision. We grant summary judgment and dismiss the claims of respondent, Beatrice Ducre.
On May 31, 2019, Beatrice Ducre, plaintiff/respondent, filed a petition for damages relating to a slip and fall in the Lakeside Shopping Center, in Metairie. Ducre alleged that on April 20, 2019, while walking through the mall in the area between JCPenney's and Johnston & Murphy, she slipped on a wet floor, fell, and sustained severe injuries and damages.
Defendants, Greater Lakeside LLC and XYZ Insurance Company, moved for summary judgment on the grounds that Ms. Ducre could not prove that defendants had actual or constructive notice of the alleged condition prior to the alleged accident. Attached to their motion for summary judgment were the petition; depositions of Ms. Ducre, her daughter Keisha Hales, her nephew De'von Franklin, her grandson Dante Hales, and Felix Moncada, the assistant manager of the Johnston & Murphy store; and the affidavits of Lakeside General Manager Tricia Phillpott, Lakeside Maintenance Evening Mall Supervisor Linny Prestley, and Lakeside Maintenance employee Larry Gilbert, Jr. Defendants claim that neither Ms. Ducre nor her relatives, who were present at the time of the fall, had evidence as to how long the liquid substance was on the floor prior to the fall. They also alleged that General Manager Phillpott's affidavit showed that Lakeside and its employees had no record of, prior knowledge of, or notification of spills, leaks, wet floors, or liquid substances on the floor at or around the area where the fall occurred; General Manager Phillpott, in her affidavit, additionally stated that defendants have procedures in place to discover and remedy potential hazards, including: several employees who walk the mall, picking up trash and identifying hazards; a supervisor who oversees maintenance; a general manager who inspects; and security officers who roam common areas and report problems to maintenance. Maintenance Supervisor Prestly, in his attached affidavit, stated that he had patrolled and inspected the common area less than five minutes prior to the alleged fall.
In her opposition to the motion for summary judgment, Ms. Ducre attached an unpublished writ disposition of this Court, a photograph of the spill, and excerpts from the depositions of Phillpott, Prestly, and security guard Tyler Gagnet. Ms. Ducre argued in her opposition that defendants’ allegation that the area was checked thirty seconds before her fall is "unsupported, erroneous, and completely refuted by Gagnet's testimony."
After a hearing on January 27, 2022, the trial court rendered a judgment denying the motion for summary judgment.1
Appellate courts review the denial of a summary judgment de novo using the same criteria governing the trial court's consideration. Taylor v. Chipotle Mexican Grill, Inc. , 18-238 (La. App. 5 Cir. 12/27/18), 263 So.3d 910, 913-14. A motion for summary judgment should be granted "if the pleadings, depositions...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." La. C.C.P. art. 966(B)(2). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of most actions. La. C.C.P. art. 966(A)(2) ; Trench v. Winn-Dixie Montgomery LLC , 14-152 (La. App. 5 Cir. 9/24/14), 150 So.3d 472, 475. If the party moving for summary judgment, does not bear the burden of proof at trial, he must point out the absence of factual support for one or more elements essential to the adverse party's claim. La. C.C.P. art. 966(C)(2). Thereafter, the adverse party must produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden at trial. Id.
The propriety of the decision on a motion for summary judgment must be analyzed with reference to applicable substantive law. Bryant v. Ray Brandt Dodge, Inc. , 19-464 (La. App. 5 Cir. 3/17/20), 292 So.3d 190, 195. In a case in which the plaintiff is alleging premises liability pursuant to La. C.C. article 2317.1, an owner or custodian is answerable for damage only upon a showing that he or she "knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage."2 A plaintiff is required to show that defendant owners had either actual or constructive knowledge of the defect. Constructive knowledge imposes a duty to discover a defect "when it is shown to have existed for such a long period of time that one should have had knowledge of the condition." Dufrene v. Gautreau Family, LLC , 07-467 (La. App. 5 Cir. 2/22/08), 980 So.2d 68, 80, writ denied , 08-0629 (La. 5/9/08), 980 So.2d 694.
Ms. Ducre argues in her opposition that "the totality of the evidence and applicable jurisprudence" allows for the reasonable inference that the liquid was on the floor for "some time period" before the fall. This argument, however, does not comport with what is required by applicable jurisprudence. Direct evidence is not necessary, if a reasonable inference can be drawn from circumstantial evidence that it was more probable than not that a substance existed for some period of time prior to the accident. Ceasar v. Wal-Mart Stores, Inc. , 00-1181 (La. App. 3 Cir. 6/6/01), 787 So.2d 582. Mere speculation that the condition may have existed for some time period, however, is insufficient to show that the essential element of the length of time the alleged defect existed has been met. Scott v. Galleria Operating Co., L.L.C ., 17-104 (La. App. 5 Cir. 11/15/17), 230 So.3d 682, 686, writ denied , 17-2080 (La. 2/9/18), 236 So.3d 1262 ; See Babin v. Winn-Dixie, Louisiana, Inc. , 00-0078 (La. 6/30/00), 764 So.2d 37, 40.
Properly attached to defendants’ motion are the affidavits and deposition testimony of Lakeside employees and contractors to establish a lack of actual knowledge of the spill and a timeframe during which inspections were made to refute constructive knowledge. The affidavit of Gilbert, the maintenance employee responsible for that area, states that he patrolled the area less than five minutes before the fall and saw no liquid on the floor. Prestly testified in his deposition that the substance could not have been on the floor long because he had walked by that area not more than a couple of minutes, thirty seconds or so before he got the call that the fall had occurred. In Scott v. Galleria Operating Co., LLC. , this Court found defendants showed an absence of evidence that they had knowledge of a defect in the parking garage, through affidavits showing inspection efforts and lack of reported similar incidents. 230 So.3d at 686. Additionally, in that case we found the plaintiff did not present evidence of the length of time the alleged defect existed, an essential element. Id. Therefore, based upon the documents attached to defendants’ motion, the burden shifted to Ms. Ducre to show that she could establish the element of knowledge.
None of Ms. Ducre's witnesses could substantiate that defendants had knowledge of the liquid substance on the floor prior to the fall. Ms. Ducre also failed to present any evidence of the temporal element necessary to prove constructive knowledge. She presented no evidence of how long the liquid had been on...
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