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Burns v. Sedgwick Claims Mgmt. Servs., Inc.

Court of Appeals of Louisiana, Fifth Circuit

November 25, 2014

ELOUISE BURNS
v.
SEDGWICK CLAIMS MANAGEMENT SERVICES, INC. AND WINN-DIXIE MONTGOMERY, LLC

Page 148

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 709-554, DIVISION " B" . HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING.

CESAR R. BURGOS, ROBERT B. EVANS, III, GABRIEL O. MONDINO, ROBERT J. DAIGRE, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

STEPHEN N. ELLIOTT, CAROLINE D. ELLIOTT, ATTORNEYS AT LAW, Metairie, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Hans J. Liljeberg.

OPINION BY:

FREDERICKA HOMBERG WICKER, J.

OPINION

Page 149

[14-421 La.App. 5 Cir. 2] In this slip and fall case, plaintiff appeals a summary judgment granted in favor of defendant-merchant. For the following reasons, we affirm.

Page 150

FACTUAL AND PROCEDURAL BACKGROUND

On December 19, 2011, plaintiff, Elouise Burns, filed suit in the Twenty-Fourth Judicial District Court against Winn-Dixie Montgomery, LLC, (" Winn-Dixie" ) for damages arising out of a slip and fall accident at a Winn-Dixie store in Westwego.[1] In her petition, plaintiff alleged that she slipped and fell due to the accumulation of water or an unknown substance present on the floor of the store's ice cream aisle.

On August 2, 2013, following preliminary discovery, Winn-Dixie filed a motion for summary judgment, asserting that no genuine issue of material fact existed and that plaintiff could not meet her burden to prove that Winn-Dixie [14-421 La.App. 5 Cir. 3] created or had actual or constructive notice of the alleged unreasonably dangerous condition as required under La. R.S. 9:2800.6.[2] In support of its motion for summary judgment, Winn-Dixie attached plaintiff's deposition testimony to point out an absence of factual support to prove plaintiff's claim that Winn-Dixie had actual or constructive notice of the alleged hazardous condition. In her deposition, plaintiff testified that she did not see any liquid on the floor prior to her fall and that she did not know how long the liquid had been on the floor prior to her fall.

Plaintiff filed an opposition to the motion for summary judgment, asserting that a genuine issue of material fact existed as to whether Winn-Dixie had actual or constructive notice of the hazardous condition based upon the proximity of the location where plaintiff slipped to the location of the cash registers in the store. To support her opposition, plaintiff attached the affidavit

Page 151

of Joshua Allison, a law clerk with plaintiff's counsel's law firm, attesting to his August 23, 2013 visit to the Winn-Dixie store located in Westwego. Mr. Allison attested that he visited the store and that he observed the proximity of the location where plaintiff slipped to the location of the cash registers and customer service desks at the front of the [14-421 La.App. 5 Cir. 4] store. Mr. Allison attested that the aisle where plaintiff slipped provides a clear and unobstructed view to the cash registers, where several employees were located on the date of his inspection.[3]

Additionally, at the hearing on the motion for summary judgment, plaintiff introduced copies of her July 13, 2012 Answers to Interrogatories as well as Winn-Dixie's August 6, 2012 Answers to Interrogatories and Request for Production of Documents. Plaintiff argued that her deposition testimony as well as the discovery submitted in opposition to the motion for summary judgment proved that there were no wet floor signs in the area where she slipped. Plaintiff further argued that the evidence demonstrated the proximity of the location of the cash registers to the location of the accident at issue--which plaintiff contended was sufficient to prove constructive notice under La. R.S. 9:2800.6.

On September 26, 2013, the trial court granted summary judgment in favor of Winn-Dixie, dismissing plaintiff's suit against it. On October 2, 2013, plaintiff filed a motion for new trial arguing that the granting of summary judgment was contrary to the law and evidence; that plaintiff had discovered new evidence to defeat summary judgment that was not available prior to the summary judgment hearing; and that the granting of a new trial in this case is within the trial court's discretion and in the interest of justice.

Following a contradictory hearing on January 15, 2014, the trial court denied plaintiff's motion for new trial.[4] This timely appeal follows.

[14-421 La.App. 5 Cir. 5] Procedural Note

Initially, a review of the record reflects that the motion for appeal in this case references the January 15, 2014 denial of plaintiff's motion for new trial rather than the September 26, 2013 judgment on Winn-Dixie's motion for summary judgment.

The denial of a motion for new trial is an interlocutory judgment which is not appealable. Pignona v. Farber, 13-192 (La.App. 5 Cir. 10/9/13), 128 So.3d 390, 395-96. Rather, the denial of a motion for new trial is reviewable only under the appellate court's supervisory jurisdiction for abuse of discretion. Id. However, Louisiana courts have held that appeals are favored in law, must be maintained whenever possible, and will not be dismissed for mere technicalities. Any doubt ...


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