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Keeven v. Wen-Star, Inc.

Court of Appeals of Louisiana, Third Circuit

December 6, 2017

DONNA KEEVEN
v.
WEN-STAR, INC., ET AL.

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20144318 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

          Michael W. Robinson Pucheu, Pucheu & Robinson LLP COUNSEL FOR PLAINTIFF/APPELLANT: Donna Keeven.

          Eric D. Burt Sidney W. Degan, III Degan, Blanchard & Nash COUNSEL FOR DEFENDANTS/APPELLEES: Wen-Star, Inc. Wen-Star of Louisiana, Inc. d/b/a Wendy's Amtrust North America, Inc.

          Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.

          VAN H. KYZAR, JUDGE

         In this slip and fall liability case, the plaintiff, Donna Keeven, appeals the judgment of the trial court granting summary judgment in favor of the defendants, Wen-Star, Inc., Wen-Star Louisiana, Inc., d/b/a as Wendy's, and Amtrust North America, Inc. For the following reasons, we reverse and remand.

         DISCUSSION OF THE RECORD

         On August 26, 2013, Ms. Keeven entered a Wendy's fast-food restaurant, located on Ambassador Caffery, in Lafayette, Louisiana. After entering, she turned to the right and walked down the hall in the direction of the ladies' restroom. However, before she reached door, her feet slipped out from underneath her, causing her to fall to the floor. On August 22, 2014, Ms. Keeven filed a petition for damages against Wendy's Wen-Star, Inc., Wen-Star Louisiana, Inc., d/b/a as Wendy's, and Amtrust North America, Inc., as insurer (collectively referred to as "Wendy's"), seeking damages for injuries she suffered as a result of this incident. In her petition, she alleged that she slipped and fell due to "water and/or other liquid(s) on the floor, which she was later informed was condensation from the air conditioning unit, of which condition the employees and/or management were aware or should have been aware."

         After answering Ms. Keeven's petition, Wendy's filed a motion for summary judgment, asserting that no genuine issue of material fact existed and that Ms. Keeven could not meet her burden of proving that Wendy's created or had actual or constructive notice of the allegedly unreasonably dangerous condition as required under La.R.S. 9:2800.6. Ms. Keeven opposed the motion. Following a February 6, 2017 hearing on the motion, the trial court granted summary judgment in favor of Wendy's and dismissed Ms. Keeven's claims with prejudice. A written judgment was rendered by the trial court on February 23, 2017. It is from this judgment that Ms. Keeven appeals.

         On appeal, Ms. Keeven raises three assignments of error for our review:

1. The trial court erred in granting the Motion for Summary Judgment, dismissing all claims of the Plaintiff-Appellant.
2. The trial court erred in concluding that there was insufficient evidence which created an issue of fact, which should have been determined by the trier of fact, taking into account the credibility of Ms. Keeven, Amanda Bob, persons working for Wendy's and whether there was spot mopping meant to remove the extra slippery substance on the floor prior to Ms. Keeven exiting the restroom, and whether the manager did acknowledge in an admission against interest to Ms. Keeven that the air conditioner had been leaking.
3. The [trial] court erred in imposing the same burden on Ms. Keeven as those persons who cannot identify the substance on the floor, when the issue in this case was not whether a substance on the floor was left by a customer, but was a substance believed to have originated from actions and/or inactions of the defendant store owner (In other words, the trial [court] erred by analyzing the Motion for Summary Judgment as if Ms. Keeven slipped on a foreign substance left by a customer, in requiring her to identify precisely such substance, and provide evidence showing that there had been inadequate inspections and/or inadequate cleanups of such items left by another customer, )

         OPINION

         Louisiana Code of Civil Procedure Article 966 provides that summary judgment procedure is favored and that it "is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." La.Code Civ.P. art. 966(A)(2). It further provides that summary judgment "shall be granted if the motion, memorandum, and supporting documents 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.P. art. 966(A)(3). Although the burden of proof rests with the mover, if the mover will not bear the burden of proof at trial then he need only point out to the trial court "the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La.Civ.Code art. 966(D)(1). Once this occurs, the burden ...


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