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Scott v. Dillard's, Inc.

Court of Appeal of Louisiana, Fifth Circuit

March 11, 2015

SYLVIA SCOTT
v.
DILLARD'S, INC. A/K/A DILLARD DEPARTMENT STORES, INC

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 695-301, DIVISION " D" . HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING.

JOHN S. CREEVY, BRIAN D. KATZ, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR APPELLANT, SYLVIA SCOTT.

ROBERT D. PEYTON, ROBERT E. PEYTON, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR APPELLEE, HIGBEE LOUISIANA, L.L.C.

Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst.

OPINION

Page 469

[14-755 La.App. 5 Cir. 2] SUSAN M. CHEHARDY, J.

On appeal, plaintiff-customer challenges the summary judgment, dismissing her action for damages against defendant-merchant for a slip-and-fall on defendant's premises. For the following reasons, we affirm.

Facts and Procedural History

On November 27, 2009, Sylvia Scott, plaintiff-herein, entered the Dillard's Department Store at Esplanade Mall in Kenner, Louisiana to shop its " Black Friday" sale, which began at 8:00 a.m. Upon entering the exterior door at approximately 8:30 a.m., Ms. Scott stepped on a clear plastic " cling" sign that was on the floor, slipped, and fell onto the floor of the vestibule. Although initially Ms. Scott refused medical treatment, she eventually sought medical treatment, including pain management, physical therapy, and surgery.

Page 470

On November 23, 2010, Ms. Scott filed suit against " Dillard's, Inc., a/k/a Dillard Department Stores, Inc." for personal injuries that she sustained as a result of her slip-and-fall within their premises. On December 6, 2010, Dillard's[1] answered Ms. Scott's suit, denying all of her allegations.

[14-755 La.App. 5 Cir. 3] On June 12, 2012, Dillard's moved for summary judgment on the basis that Ms. Scott could not bear her burden of proof under La. R.S. 9:2800.6 that Dillard's created the hazard in question or had actual or constructive notice of the hazard. To its motion for summary judgment, Dillard's attached excerpts from Ms. Scott's deposition.

On July 9, 2014, Ms. Scott filed her opposition to Dillard's motion for summary judgment contending that there clearly existed a genuine issue of material fact as to whether Dillard's had constructive notice of the hazard in question. To her opposition, Ms. Scott attached her entire deposition; a copy of the front of the " cling" sign and the back of the sign showing one full and one partial footprint; a copy of Dillard's " Customer Accident Investigation Report" of her fall on November 27, 2009, which included photographs taken by Dillard's employee, " A. Richardson; " the deposition with exhibits of Dillard's former employee, Kristina Claudet-Theriot; and depositions without exhibits of Dillard's representatives, Michael Fuller Jones, Debora Ann Bryant, and David John Luster.

On July 28, 2014, after a hearing, the trial judge, relying on Flowers v. Wal-Mart Stores, Inc., 12-140 (La.App. 5 Cir. 07/31/12), 99 So.3d 696, 697, granted summary judgment in favor of Dillard's on the basis that Ms. Scott had " failed ... to ... make a positive showing that the sign had been there for some time" and " there was no evidence ...


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