APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2012-03355, DIVISION " I-14" . Honorable Piper D. Griffin, Judge.
Lawrence Blake Jones, David C. Whitmore, SCHEUERMANN & JONES, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
Godfrey Bruce Parkerson, Lacey E. Sarver, PLAUCHE MASELLI PARKERSON LLP, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.
(Court composed of Judge Terri F. Love, Judge Paul A. Bonin, Judge Madeleine M. Landrieu). LOVE, J., CONCURS AND ASSIGNS REASONS. LANDRIEU, J., DISSENTS IN PART AND CONCURS IN PART.
[2014-1316 La.App. 4 Cir. 1] PAUL A. BONIN,
Royanne Davis claims that she slipped and fell on a kitty-litter-like material which had been spread over an oil slick near the gas pumps in the parking lot of a convenience store owned by the defendants, Cheema One, Inc. On motion of Cheema and its insurer, the trial court granted summary judgment and dismissed Ms. Davis's case with prejudice. Ms. Davis appealed.
Applying the Merchant Liability Statute, La. R.S. 9:2800.6, we find upon our de novo review that the trial judge incorrectly dismissed with prejudice Ms. Davis's lawsuit in its entirety. Considering Ms. Davis's deposition testimony and the reasonable inferences therefrom to which she is entitled in summary judgment proceedings, we find that there is a genuine issue of material fact whether Cheema created the claimed dangerous condition on its premises. We do find, however, that Ms. Davis failed to make a positive showing in support of her alternative theory of recovery that Cheema had constructive notice of the dangerous condition, which precludes her recovery under that theory. And as a consequence Cheema is [2014-1316 La.App. 4 Cir. 2] entitled to a partial summary judgment dismissing that alternative theory of recovery.
Thus we amend the trial court judgment to delete its decretal language dismissing with prejudice the lawsuit. We also grant partial summary judgment in Cheema's favor
on the constructive notice theory of recovery. Finally, we remand the matter to the trial court for further proceedings solely under the theory of recovery that Cheema created the condition on its premises which caused Ms. Davis's damages.
We explain our holding in greater detail below.
We first discuss this matter's procedural history. Ms. Davis filed suit against Cheema and its insurer on April 5, 2012. In her petition, Ms. Davis alleges that she was a customer at Cheema's Belle Chasse, Louisiana Spur and Deli when, in the process of purchasing gasoline, she slipped and fell on a foreign substance on the premises. Her petition claims that the fall resulted in a broken fibula, tibia, and ankle, as well as other injuries to her head, back, ribs, legs, feet, and hands. The petition asserts that Ms. Davis's injuries were caused by Cheema's failure to: 1) properly maintain the premises; 2) discover and correct the unsafe condition on the premises; 3) exercise reasonable care to prevent unsafe conditions on the premises; and, 4) warn her about the unsafe condition. Ms. Davis, [2014-1316 La.App. 4 Cir. 3] accordingly, claims that Cheema and its insurer are liable to her for damages. After issue was joined by Cheema, the parties engaged in discovery practice. They subsequently held a status conference in February 2014 wherein the trial court set cut-off dates and the parties selected a September 15, 2014 trial date.
On June 20, 2014, Cheema filed a motion for summary judgment asking the trial judge to dismiss Ms. Davis's action because she cannot prove an essential element of her claim. Specifically, Cheema admitted for the purposes of its motion that Ms. Davis could prove the existence of a foreign substance on its premises -- a kitty-litter-like substance spread out over an eight-foot diameter area near a gas pump -- but contended that she cannot establish that it had actual or constructive notice of the substance. Cheema, accordingly, argued that since Ms. Davis could not establish the notice element of her action, and there was no genuine issue of material fact, it was entitled to a judgment of dismissal as a matter of law.
In support of its motion, Cheema submitted a black and white photocopy of a photograph of the area in which Ms. Davis's fell, and excerpts from several deposition transcripts. Ms. Davis filed an opposition memorandum in which she argued that the motion should be denied because there are genuine issues of material fact as to whether the hazardous condition, i.e., the foreign substance on the premises, was created by one of Cheema's employees. Specifically, Ms. Davis [2014-1316 La.App. 4 Cir. 4] argued that if " the inference to be drawn from the evidence and the perceived general knowledge of the trier of fact is that litter-like, absorbent substances are used to absorb gas or oil spills, then the reasonable inference is that it is placed there by employees of the gas station, as opposed to some good Samaritan." Ms. Davis also asserted that there was a genuine issue of material fact as to whether Cheema's cleanup procedures and protective measures
were sufficient to detect any uncreated spills on premises. In support of her opposition, Ms. Davis attached excerpts from several deposition transcripts, and a duplicate black and white photocopy of the photograph originally introduced by Cheema. In response, Cheema filed a supplemental memorandum on July 23, 2014, and attached additional deposition extracts.
The trial court was confronted, therefore, with whether a genuine issue of fact existed as to whether Cheema either created or had constructive notice of the substance that caused Ms. Davis's fall. The parties argued the merits of Cheema's motion before the trial court on July 25, 2014. The record establishes that the trial judge granted the motion in favor of Cheema, Inc., Cheema One, Inc., and Century and dismissed Ms. Davis's claims with prejudice. Ms. Davis subsequently sought a timely devolutive appeal of the trial court's judgment.
[2014-1316 La.App. 4 Cir. 5] II
We now examine the statutory law and jurisprudence which governs our review of Cheema's motion for summary judgment and establishes the standards for merchant liability.
We apply a de novo standard of review in examining trial court rulings on summary judgment motions. See Hare v. Paleo Data, Inc., 11-1034, p. 9 (La.App. 4 Cir. 4/4/12), 89 So.3d 380, 387. We, accordingly, use the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Id. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966 B; Catahoula Parish School Board v. Louisiana Machinery Rentals, LLC, 12-2504, pp. 8-9 (La. 10/15/13), 124 So.3d 1065, 1071. We, nevertheless (and importantly in this case), view the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. See Hines v. Garrett, 04-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765.
On a motion for summary judgment, the burden of proof remains with the movant. La. C.C.P. art. 966 C(2). However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, [2014-1316 La.App. 4 Cir. 6] action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966 C(2). If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment should be granted. Id.
We also note that a " summary judgment may be rendered dispositive of a . . . theory of recovery . . . even though the granting of the summary judgment does not dispose of the entire case as to that party or parties." La. C.C.P. art. 966 E. This is consistent with Louisiana's system of pleading which allows a litigant to assert several inconsistent or mutually exclusive theories of recovery, causes of action, or defenses as long as the allegations are well-grounded in fact, warranted by existing law or a good faith ...