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Tomaso v. Home Depot, U.S.A., Inc.

Court of Appeals of Louisiana, First Circuit

June 5, 2015

BENJAMIN TOMASO
v.
HOME DEPOT, U.S.A., INC. and KYZ INSURANCE COMPANY

On Appeal from the Twenty-Second Judicial District Court. In and for the Parish of St. Tammany, State of Louisiana. No. 2013-11752. Honorable Peter Garcia, Judge Presiding.

James E. Shields, Sr., Gretna, Louisiana, for Plaintiff/ Appellant, Benjamin Tomaso.

Megan S. Peterson, M. Davis Ready, New Orleans, Louisiana, for Defendant/ Appellee, Homes Depot, U.S.A., Inc.

BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

OPINION

Page 680

[2014 1467 La.App. 1 Cir. 2] McClendon, J.

A store patron appeals a summary judgment dismissing his suit for alleged injuries sustained when he fell from a lawn tractor. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 18, 2012, Benjamin Tomaso visited the Home Depot store located on Northshore Boulevard in Slidell, Louisiana. Mr. Tomaso parked his vehicle near the main entrance to the store, while his fiancé e entered the store to return an item. Mr. Tomaso noticed lawn tractors near the store entrance, so he exited his vehicle and sat on one of the lawn tractors to " check it out."

According to Mr. Tomaso, a Home Depot employee who was pushing a line of shopping carts back to the store's entrance requested tat Mr. Tomaso get off of the lawn tractor because there was insufficient room to push the carts between Mr. Tomaso's parked vehicle and the tractor. As Mr. Tomaso attempted to get off the lawn tractor, he fell. At the time he fell, Mr. Tomaso was not sure what caused him to fall. After he fell, Mr. Tomaso noticed a small zip tie present on the footplate, or deck access panel, of the lawn tractor. Mr. Tomaso indicated that the zip tie was the " only thing" that could have caused him to fall.

On April 17, 2013, Mr. Tomaso filed suit against Home Depot, U.S.A., Inc., alleging that his " foot was snagged by a ... hazard ... that had negligently not been removed from the subject lawnmower," which caused him extensive injuries.

On December 9, 2013, Home Depot filed a motion for summary judgment. Home Depot asserted that the zip tie was not a defective condition or otherwise inherently dangerous. Home Depot also asserted that Mr. Tomaso presented no evidence that any injury resulting from a zip tie was foreseeable or that Home Depot should have known that an injury could occur. Home Depot further urged that Mr. Tomaso could not prove causation because he was not sure what caused him to fall, but once he saw the zip tie, he considered that the only possible explanation.

[2014 1467 La.App. 1 Cir. 3] After two continuances and to allow the taking of additional discovery, the trial court heard Home Depot's motion for summary judgment on May 19, 2014. Following the hearing, the trial court granted Home ...


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