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Luft v. Winn Dixie Montgomery, LLC

Court of Appeals of Louisiana, Fifth Circuit

February 8, 2017

TAMI J. LUFT
v.
WINN DIXIE MONTGOMERY, LLC D/B/A WINN DIXIE, WINN DIXIE STORES, INC., ABC INSURANCE COMPANY, XYZ, INC., AND DEF INSURANCE COMPANY

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 748-843, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, TAMI J. LUFT Leo J. Palazzo Jason J. Markey

          COUNSEL FOR DEFENDANT/APPELLEE, WINN DIXIE MONTGOMERY, LLC AND WINN DIXIE STORES, INC. Stephen N. Elliott Caroline D. Elliott

          Panel composed of Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson

         AFFIRMED

         SMC

         MEJ

         RAC

          SUSAN M. CHEHARDY CHIEF JUDGE

         Plaintiff, Tami Luft, appeals the 24th Judicial District Court's April 11, 2016 judgment granting summary judgment in favor of defendant, Winn-Dixie Montgomery, LLC ("Winn-Dixie"), and dismissing with prejudice Ms. Luft's slip-and-fall claim against Winn-Dixie. For the reasons that follow, we affirm this judgment of the district court.

         FACTS AND PROCEDURAL HISTORY

         On April 20, 2015, Ms. Luft filed suit against Winn-Dixie for damages arising out of a May 21, 2014 slip-and-fall incident at the Winn-Dixie store in Gretna, Louisiana. Ms. Luft alleged that she sustained injuries when she tripped and fell on a clear piece of plastic from shelving in the store.

         Following preliminary discovery, on February 16, 2016, Winn-Dixie filed a motion for summary judgment, claiming that Ms. Luft could not satisfy her burden of proof under La. R.S. 9:2800.6. Winn-Dixie argued that Ms. Luft could not prove that Winn-Dixie either created or had actual or constructive notice of the condition that allegedly caused her to trip and fall. In support of its motion for summary judgment, Winn-Dixie attached the deposition of Ms. Luft and an affidavit of Jason Lollis, the manager on duty at the time of the incident.

         In Ms. Luft's deposition, she explained that after getting off work at 6:00 a.m. on May 21, 2014, she slept until 3:00 p.m., watched television, and then around 5:00 p.m., went to the Winn-Dixie store at the corner of Belle Chasse Highway and Wall Boulevard in Gretna for snacks and bread. She picked up a bag of pretzels on the chip aisle and continued toward the back of the store to pick up bread when she hit something with her left foot, twisted her right knee, and fell to the ground, catching herself with her hands. On the ground she found a clear piece of plastic that was 4 inches tall, 18-20 inches long, and appeared to have been dislodged from the bottom shelf near the site of her fall. There were other similar pieces of plastic on the bottom shelf, keeping the products in place. These plastic barriers were not ...


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