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
BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
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.
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.
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.
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.
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 ...