Tate v. Outback Steakhouse of Fla., L.L.C.

• Decision Date: 16 September 2016
• Docket Number: NO. 2016 CA 0093,2016 CA 0093
• Citation: 203 So.3d 1075
• Parties: Cheryl Tate v. Outback Steakhouse of Florida, L.L.C., and Outback Steakhouse
• Court: Court of Appeal of Louisiana — District of US

203 So.3d 1075

Cheryl Tate

v.Outback Steakhouse of Florida, L.L.C., and Outback Steakhouse

NO. 2016 CA 0093

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: September 16, 2016

A.M. "Tony" Clayton, Michael P. Frugé, Richard J. Ward, III, Port Allen, LA, Attorneys for Plaintiff-Appellant, Cheryl Tate

John P. Wolff, III, Tori S. Bowling, Sydnee D. Menou, Baton Rouge, LA, Attorneys for Defendant-Appellee, Outback Steakhouse of Florida, L.L.C.

BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.

HIGGINBOTHAM, J.

In this personal injury suit arising out of a slip and fall, a restaurant patron appeals a summary judgment granted in favor of the restaurant, dismissing the patron's claim for damages.

BACKGROUND

On September 21, 2012, Cheryl Tate, her husband and two friends entered an Outback Steakhouse restaurant on South Acadian Thruway in Baton Rouge, Louisiana. Within moments, while either her husband or one of her friends were still holding the entryway door open, Ms. Tate was greeted by the restaurant's hostess and immediately led toward a table. Instantly, after taking only two-to-three steps, Ms. Tate slipped and fell in an unknown clear liquid substance on the floor, which she did not see prior to falling. Ms. Tate commenced proceedings against Outback Steakhouse of Florida, L.L.C., and Outback Steakhouse (collectively referred to as "Outback"), pursuing damages for injuries she allegedly sustained as a result of the fall. After discovery was complete, Outback filed a motion for summary judgment, seeking dismissal of Ms. Tate's claims on the grounds that she would be unable to meet her burden of proof that Outback had actual or constructive knowledge of any substance on the restaurant's floor. After a hearing, the trial court signed a judgment on November 5, 2015, granting Outback's motion for summary judgment and dismissing Ms. Tate's claims. It is from this judgment that Ms. Tate now appeals.

APPLICABLE LAW

On appeal, summary judgments are reviewed de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Sunrise Const. and Development Corp. v. Coast Waterworks, Inc., 2000–0303 (La.App. 1 Cir. 6/22/01), 806 So.2d 1, 3, writ denied, 2001–2577 (La. 1/11/02), 807 So.2d 235. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions, together with 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. Code Civ. P. art. 966(B)(2).¹ The initial burden of proof is on the moving party; however, if the moving party will not bear the burden of proof at trial, the moving party's burden on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, the nonmoving party must produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact and the motion should be granted. La. Code Civ. P. art. 966(C)(2).

A genuine issue is a triable issue. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Smith v. Our Lady of the Lake Hosp., Inc., 93–2512 (La. 7/5/94), 639 So.2d 730, 751. A fact is material when its existence or non-existence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. King v. Illinois Nat. Ins. Co., 2008–1491 (La. 4/3/09), 9 So.3d 780, 784. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Manno v. Gutierrez, 2005–0476 (La.App. 1 Cir. 3/29/06), 934 So.2d 112, 116.

The applicable substantive law in this case is set forth in the premises liability statute, La. R.S. 9:2800.6, which provides in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.

B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:

(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.

C. Definitions:

(1) "Constructive notice" means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition. [Emphasis added.]

DISCUSSION

A determination of whether the trial court properly granted summary judgment dismissing Ms. Tate's claims against Outback hinges on whether Ms. Tate failed to establish a prima facie case of premises liability under La. R.S. 9:2800.6. Pursuant to that statute, Ms. Tate has the mandatory burden of proving that the clear liquid substance on the floor where she slipped and fell at Outback presented an unreasonable risk of harm to her, that the risk of harm was reasonably foreseeable, that Outback either created or had actual or constructive notice of the condition prior to the occurrence, and that Outback failed to exercise reasonable care to eliminate the condition. Ms. Tate has the burden to prove each element of her cause of action under La. R.S. 9:2800.6(B) in addition to the remaining elements of her negligence action: duty, breach, cause in fact, risk and harm within the scope of duty, and actual damages. See White v. Wal–Mart Stores, Inc., 97–0393 (La. 9/9/97), 699 So.2d 1081, 1083–1084. The failure to prove any one of the required elements will negate a claimant's cause of action. Coleman v. Wal–Mart Stores, Inc., 98–0124 (La.App. 1 Cir. 11/6/98), 721 So.2d 1068, 1072.

Ms. Tate contends that the trial court erred in combining the constructive notice and the reasonableness elements of the premises liability statute when it...