ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 639-714, DIVISION " N" . HONORABLE CAROLYN GILL-JEFFERSON, A.D. HOC JUDGE PRESIDING.
H. EDWARD SHERMAN, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.
SIDNEY J. HARDY, LYNDA A. TAFARO, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois.
[13-792 La.App. 5 Cir. 2]
FREDERICKA HOMBERG WICKER, JUDGE.
Plaintiff, Michelle Sheffie, appeals the granting of summary judgment in favor of defendants, Wal-Mart Louisiana, LLC and Wal-Mart Real Estate Business Trust. Because we find that a genuine issue of material fact exists, precluding summary judgment in this case, we reverse the trial court's judgment and remand this matter to the trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Michelle Sheffie, filed suit in the Twenty-Fourth Judicial District Court against Wal-Mart Louisiana, LLC and Wal-Mart Real Estate Business Trust (hereinafter collectively referred to as " Wal-Mart" ) alleging that she sustained personal injuries when she slipped on a clear substance while shopping at Wal-Mart's Harahan location store on December 27, 2005. After the parties conducted preliminary discovery, Wal-Mart filed a motion for summary judgment asserting that plaintiff cannot satisfy her burden of proof under La. R.S. 9:2800.6.
[13-792 La.App. 5 Cir. 3] Specifically, Wal-Mart argued that plaintiff could not prove that it had constructive or actual notice of the substance she alleges caused her to slip; further, Wal-Mart asserted that plaintiff could not show that the liquid remained in the store aisle for a specific period of time prior to the accident to satisfy the temporal element under La. R.S. 9:2800.6.
Plaintiff filed an opposition to Wal-Mart's motion for summary judgment. In opposition, plaintiff attached numerous exhibits, including Wal-Mart's discovery responses. Through their discovery responses, Wal-Mart admitted that there was water on the floor in the area where plaintiff's accident occurred and that Wal-Mart associates are trained to continuously inspect and zone their departments for hazardous conditions. Plaintiff also attached her deposition testimony describing the events leading up to the slip and the La. C.C.P. art. 1442 deposition testimony of Wal-Mart representative James Thomas Raines. Mr. Raines testified that the site of plaintiff's slip would be considered a main aisle of the store, located between the jewelry counter and a line of cash registers, and that employees are trained to continuously conduct " safety sweeps" of their assigned departments or areas. Plaintiff further produced the deposition testimony of Jess Robinson, Jr., the assistant manager on duty at the time of the accident. Mr. Robinson responded to the scene after the accident and completed an accident report, verifying the [13-792 La.App. 5 Cir. 4] presence of a twelve-inch puddle of water on the floor where the accident occurred.
Additionally, plaintiff produced a surveillance video recording of the accident, obtained through discovery. Plaintiff attached the affidavit of private investigator Darrell Mittelstaedt, who reviewed and analyzed the surveillance video. Mr. Mittelstaedt attested that, in the twenty-two minute video, he observed five Wal-Mart employees walk by the area where plaintiff slipped and that, after the accident was reported, it took a Wal-Mart employee approximately two minutes to remove the water from the area where plaintiff slipped. The twenty-two minute video shows plaintiff's awkward body movement as she slipped and shows the traffic passing near the accident site.
Plaintiff also attached the affidavit of Kortney Rodgers, an asset protection coordinator for Wal-Mart at the time of the accident. Mr. Rodgers attested that he was the custodian of the store's surveillance recordings at the time of plaintiff's accident and that he in fact preserved the twenty-two minute surveillance video produced in connection with this litigation. He further attested that Wal-Mart never provided to him any instructions to preserve any particular length of surveillance recording following a reported accident. In his affidavit, Mr. Rodgers attested that he viewed the surveillance video in connection with ...