Jackson v. Sears Auth. Retail Dealer Store

• Decision Date: 12 June 2002
• Docket Number: No. 36,166-CA.,36,166-CA.
• Citation: 821 So.2d 590
• Parties: Anthony JACKSON, Plaintiff-Appellant v. SEARS AUTHORIZED RETAIL DEALER STORE, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

821 So.2d 590

Anthony JACKSON, Plaintiff-Appellant v. SEARS AUTHORIZED RETAIL DEALER STORE, et al., Defendants-Appellees.

No. 36,166-CA.

Court of Appeal of Louisiana, Second Circuit.

June 12, 2002.

Bruscato, Tramontana & Wolleson, Monroe, By: Anthony J. Bruscato, Catherine Leary, Avondale, for Appellant.

Davenport, Files & Kelly, L.L.P., By: W. David Hammett, Monroe, for Appellees.

Before PEATROSS, KOSTELKA and DREW, JJ.

KOSTELKA, J.

In this personal injury action, Anthony Jackson ("Jackson") appeals the summary judgment granted in favor of Kenthel, Inc., a corporation doing business as Sears Authorized Retail Dealer Store ("Sears"), and its insurer, United Fire and Casualty Company ("United"). We affirm.

FACTS

On February 9, 2000, Jackson and his mother, Carolyn Smith ("Smith"), shopped for a washing machine and dryer at the Ruston, Louisiana Sears store, owned and operated by Thelma and Kenneth Brewster. On his way out of the store, Jackson stopped to look at a group of cloth fold-up chairs intended for use in leisure activities. As he did so, Thelma Brewster assisted him. The store sold different designs of the chair. While the store's supply of the type of chair that Jackson desired to purchase was contained in boxes, one chair of a different design had been placed on display. The chair had three legs and foot and head rests and could be folded up and placed in an accompanying bag. When Jackson sat on the edge of the chair, it tipped over causing him to fall to the floor and injure himself. As a result, Jackson instituted suit against Sears and United.

On October 12, 2001, Sears sought a motion for summary judgment arguing that because it was a non-manufacturing seller, it had no responsibility to Jackson for any defects in the product without proof that it knew or should have known of the defect and failed to disclose it. Moreover, Sears urged that it had no duty to instruct Jackson on how to sit in a chair. After hearing arguments and reviewing the material submitted in support of and in opposition to the motion, the trial court granted summary judgment in favor of Sears concluding that as a matter of law, Sears owed no duty to Jackson. This appeal ensued.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria which govern the district courts' consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup'rs of Louisiana State University, 591 So.2d 342 (La.1991); Steier v. Heller, 31,733 (La.App.2d Cir.05/05/99), 732 So.2d 787. The law governing the summary judgment procedure is set forth in La. C.C.P. art. 966. As amended in 1996, Article 966 provides that the summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by Article 969. La. C.C.P. art. 966(A)(2); Steier, supra; Traweek v. Jackson, 30,248 (La.App.2d Cir.02/25/98), 709 So.2d 867. The motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

As again amended in 1997, Article 966 now provides that when 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, he is not required to negate all essential elements of the opposing party's claim, action, or defense. Rather, once the mover points out that there is an absence of factual support for one or more elements essential to the opposing party's claim, action, or defense, and the opposing party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and summary judgment shall be granted. La. C.C.P. art. 966(C)(2); Steier, supra. Further, La. C.C.P. art. 967 provides that the opposing party cannot rest on the mere allegations or denials of his pleadings but must present evidence which will establish that material facts are at issue. Id. Ultimately, however, the burden of proof remains with the mover who must meet the initial burden of making a prima facie showing of entitlement to summary judgment. See, Mark Tatum and Judge William Norris, III, Summary Judgment and Partial Judgment in Louisiana: The State We're In, 59 La. L.Rev. 131, 141 (1998).

The question of whether a duty exists is a question of law which may be resolved by summary judgment when it is clear that no duty exists and the credibility of witnesses is not in dispute. Gullette v. Caldwell Parish Policy Jury, 33,440 (La.App.2d Cir.06/21/00), 765 So.2d 464.

After de novo review of the case, we agree with the trial court's determination that Sears is entitled to summary judgment as a matter of law.

The deposition testimony of Jackson's expert in structural engineering, John Maroney ("Maroney"), submitted in opposition to the motion for summary judgment, is persuasive in our determination.¹ Therein, Maroney stated his belief that the cause of the accident was Jackson's sitting in the chair in a "vulnerable position" which caused it to turn over. Maroney described the chair's propensity to lean forward when weight is applied to the front edge as a "defect in the chair..." that "they did not take ... into consideration when they designed the chair ...." Maroney felt this was "probably a design defect in the chair ...." and offered alternate design suggestions including shortening the cloth seat of the chair to eliminate its tendency to tip frontward. Maroney stated he did not think the chair's collapse was caused by incorrect assembly.²

Jackson contends that this testimony shows the cause of the accident to have been the chair's "inherent instability" which qualifies as a hazardous condition under either the merchant liability provisions of La. R.S. 9:2800.6(A)³ or La. C.C. arts. 2315 and 2317, for which Sears had the duty to inspect, detect, warn of or remedy prior to...