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Bryant v. Premium Food Concepts, Inc.

Court of Appeals of Louisiana, First Circuit

April 26, 2017

GRADY WAYNE BRYANT AND RHONDA PATTEN BRYANT
v.
PREMIUM FOOD CONCEPTS, INC. DBA POPEYE'S FRIED CHICKEN #4065 AND STATE FARM FIRE AND CASUALTY COMPANY

         On Appeal from the 22nd Judicial District Court, Parish of Washington, State of Louisiana Trial Court No. 106857, The Honorable Walter J. Rothschild, Judge Presiding

          Vincent F. Wynne, Jr. James C. Arceneaux, IV Jeremy D. Goux Covington, Louisiana Attorneys for Plaintiffs/Appellants, Grady Wayne Bryant and Rhonda Patten Bryant

          Marianne S. Pensa Metairie, Louisiana Attorney for Defendants/Appellees, Premium Food Concepts, Inc. DBA Popeye's Fried Chicken #4065 and State Farm Fire and Casualty Company.

          BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.

         

          CRAIN, J.

         In this personal injury suit arising from a slip and fall, the plaintiffs appeal a summary judgment dismissing their claims for damages. We reverse and remand for further proceedings.

         FACTS

         Grady Wayne Bryant and his wife, Rhonda Patten Bryant, filed suit against Premium Food Concepts, Inc., doing business as Popeye's Fried Chicken, and its insurer (collectively, "Popeye's"), seeking damages for injuries sustained when Mr. Bryant slipped and fell on "a pile of grease" as he stepped off of the curb of the restaurant's rear parking lot. Popeye's generally denied the allegations of the petition and filed a motion for summary judgment on the basis that the Bryants could not prove that Popeye's created or had actual or constructive knowledge of the alleged substance that caused Mr. Bryant's fall, and therefore, could not meet their burden of proof under the Louisiana Merchant Liability Statute. The trial court agreed that the evidence presented did not establish the temporal element necessary to prove constructive notice and granted summary judgment dismissing the Bryants' claims. The Bryants now appeal.

         DISCUSSION

         A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966B(2). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. See La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Reynolds v. Bordelon, 14-2371 (La. 6/30/15), 172 So.3d 607, 610.

         A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code Civ. Pro. art. 966F(1). The burden of proof is on the mover. See La. Code Civ. Pro. art. 966C(2). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Pro. art. 966C(2); Temple v. Morgan, 15-1159 (La.App. 1 Cir. 6/3/16), 196 So.3d 71, 76, writ denied, 16-1255 (La. 10/28/16), 208 So.3d 889.

         Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Mills v. Cyntreniks Plaza, L.L.C., 14-1115 (La.App. 1 Cir. 8/19/15), 182 So.3d 80, 82, writ denied, 15-1714 (La. 11/6/15), 180 So.3d 308. Popeye's motion for summary judgment is based on the Louisiana Merchant Liability Statute, Louisiana Revised Statutes 9:2800.6. Thus, as a threshold matter, we consider whether Section 9:2800.6 applies to this case.

Section 9:2800.6 provides:
A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any ...

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