Lewis v. Albertson's Inc.
| Decision Date | 28 June 2006 |
| Docket Number | No. 41,234-CA.,41,234-CA. |
| Citation | 935 So.2d 771 |
| Parties | Magalene LEWIS, et ux., Plaintiffs-Appellants, v. ALBERTSON'S INC., et al., Rio Beach & Back Yard Flag Chair, All-Luminum Products, Inc., and Travelers Insurance, Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
J. Michael Rhymes, Monroe, Ivan Jerome Daigs, for Appellants.
Cook, Yancey, King & Galloway by Samuel William Caverlee, Scott Louis Zimmer, Ashley G. Simoneaux, Shreveport, for Appellee, Albertson's, Inc.
Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell by Donald James Armand, Jr., Shreveport, for Appellees, Traveler's Ins. and All-Luminum Products, Inc.
Before BROWN, GASKINS and LOLLEY, JJ.
Magalene Lewis and her husband, Sellus Lewis, appeal a judgment of the 26th Judicial District Court, Parish of Bossier, State of Louisiana, which, following a hearing, granted summary judgments in favor of the defendants/appellees. Albertson's Inc. ("Albertson's"), and All-Luminum, Inc. ("All-Luminum") in conjunction with its insurer, Travelers Indemnity Company of Connecticut ("Travelers"), answered the appeal. For the following reasons, we affirm.
On May 16, 2003, Magalene Lewis started feeling ill while shopping at the Albertson's store in Bossier City, Louisiana. As she began to be escorted to her car, Mrs. Lewis felt faint and sat down in a lawn chair on display at the store. Unable to support her weight, the chair collapsed and allegedly injured Mrs. Lewis. She later filed an incident report with Albertson's.
The Lewises filed suit against the alleged manufacturer of the chair, All-Luminum, and the seller, Albertson's. During discovery for the case, it was learned that the chair involved in the incident had been disposed of by an employee at Albertson's. Albertson's and All-Luminum filed separate motions for summary judgment. The trial court granted All-Luminum's motion. The Lewises filed a memorandum in opposition to Albertson's motion for summary judgment. The trial court took the matter under advisement and requested additional briefing.
Thereafter, the Lewises filed an amended petition adding the claim of spoliation of the evidence against Albertson's. Albertson's filed a second motion for summary judgment on the spoliation claim. The trial court granted both of Albertson's motions for summary judgment finding that: (1) there was no liability for the chair and, (2) there was no evidence to support the spoliation claim. This appeal ensued.
In their first assignment of error, the Lewises argues that the trial court erred in granting Albertson's motion for summary judgment on the basis that the evidence did not show that Albertson's knew or should have known of the defect in the chair. Related to that is their second assignment of error in which they argue that the trial court erred in finding that the Lewises could not prevail on their claim based on spoliation of the evidence; the evidence that was thrown out, they claim, would have supported their liability claim. As stated, the trial court granted Albertson's motion for summary judgment on the spoliation issue and the product liability claim in favor of the defendants.
Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file and any affidavits, 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. The mover has the burden of establishing the absence of a genuine issue of material fact. However, if the mover will not bear the burden of proof at trial on the matter, the mover is not required to negate all essential elements of the adverse party's 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 or action. The non-moving party must then produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. NAB Natural Resources v. Willamette Industries, Inc., 28,555 (La. App.2d Cir.08/21/96), 679 So.2d 477.
At the outset, we note that the Lewises moved to appeal the summary judgment in favor of All-Luminum and Travelers. All-Luminum and Travelers noted in their brief that no assignments of error and no arguments have been offered with regard to manufacturer liability. After reviewing the appellees' brief we find that the Lewises have abandoned their appeal against All-Luminum and Travelers, and the judgment is not before this court. U.R.C.A. Rule 1-3 and 2-12.4.
The Lewises do allege, however, that Albertson's is liable for the defective chair. Albertson's asserts that it is not responsible for damages in tort absent a showing that it knew or should have known the product was defective and failed to declare it. Here, the Lewises' spoliation claim does not preclude a motion for summary judgment as to the issue of product liability. See e.g. Allen v. Blanchard, 1999-2077 (La.App. 1st Cir.03/31/00), 763 So.2d 704. Although the actual chair was not produced the Lewises maintained the burden to prove that an issue of material fact existed, namely that Albertson's knew or should have known and failed to declare the alleged defect in the chair.
A non-manufacturing seller is not required to inspect the product prior to sale to determine the possibility of inherent vices or defects. Jackson v. Sears Authorized Retail Dealers Store, 36,166 (La.App.2d Cir.06/12/02), 821 So.2d 590. The law is clear that a non-manufacturing seller of a defective product is not responsible for damages in tort absent a showing that he knew or should have known the product was defective and failed to declare it. Id.
After a de novo review of the case, we agree with the trial court's determination that Alberton's is entitled to summary judgment as a matter of law. The trial court found the evidence established that neither Albertson's nor Magalene Lewis had knowledge of the defect. At the deposition of Nick Walker, the assistant manager at Albertson's at the...
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