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Dupuy v. DG Louisiana, LLC

Court of Appeals of Louisiana, Third Circuit

August 10, 2017

DIANA DUPUY
v.
DG LOUISIANA, LLC

         SUPERVISORY WRIT FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 15-2013 HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE.

          Cory P. Roy, Brandon J. Scott, Renee Y. Roy, Roy & Scott, Attorneys at Law COUNSEL FOR PLAINTIFF: Diana Dupuy.

          Peter J. Wanek Trevor C. Davies Lynda A. Tafaro, McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, COUNSEL FOR DEFENDANT/RELATOR: DG Louisiana, LLC.

          Court composed of John D. Saunders, Shannon, J. Gremillion, and John E. Conery, Judges.

          SHANNON J. GREMILLION JUDGE.

         Relator, DG Louisiana, LLC, seeks supervisory writs from the trial court's judgment denying Relator's motion for summary judgment. For the following reasons, the writ is denied.

         STATEMENT OF THE CASE

         This case involves an accident that occurred while Plaintiff, Diana Dupuy, was shopping at Relator's Dollar General Store in Marksville, Louisiana. Plaintiff went to the store on July 21, 2014, but was unable to find a shopping cart. She asked Rose Maricle, who was employed by Relator at the time, about getting a shopping cart to use. Maricle, who was on a smoke break, allegedly informed Plaintiff that she could use a shopping cart that was filled with cardboard boxes and located in one of the aisles of the store. Plaintiff began to unload the boxes from the cart so that she could use it. Allegedly, when Plaintiff lifted a box containing canned goods from the shopping cart, the cart fell onto her chest and legs, causing her to fall backwards into the store's shelving. As a result of the accident, Plaintiff filed a personal injury lawsuit against Relator. Relator filed a motion for summary judgment seeking dismissal of Plaintiff's lawsuit. Following a hearing, the trial court denied Relator's motion for summary judgment. Relator now seeks review of the trial court's ruling.

         SUPERVISORY RELIEF

         Since the denial of a motion for summary judgment is an interlocutory ruling from which no appeal may be taken, the only practical remedy available to avoid a possible useless trial on the merits is to request that the appellate court exercise its supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers, 526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988).

         ON THE MERITS

         Relator argues that the trial court erred when it denied Relator's motion for summary judgment. Relator notes that with regard to the liability of the custodian for a defective thing, La.Civ.Code art. 2317.1 provides as follows:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

         Also, Relator notes that in order to prevail in a claim against a merchant for a fall on the merchant's premises, a plaintiff is required to prove the elements of a general tort claim as well ...


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