FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. C-20144318 HONORABLE THOMAS R. DUPLANTIER,
Michael W. Robinson Pucheu, Pucheu & Robinson LLP COUNSEL
FOR PLAINTIFF/APPELLANT: Donna Keeven.
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.
composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H.
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
OF THE RECORD
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."
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.
appeal, Ms. Keeven raises three assignments of error for our
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, )
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 ...