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Batiste v. United Fire And Casualty Co.

Court of Appeals of Louisiana, Fifth Circuit

March 14, 2018

QUENTELLA BATISTE AND HAYWARD BATISTE
v.
UNITED FIRE AND CASUALTY COMPANY, VERON'S SUPERMARKET, LLC AND GREG VERON

         ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ST. JAMES, STATE OF LOUISIANA NO. 37, 139, DIVISION "A" HONORABLE JASON VERDIGETS, JUDGE PRESIDING

          FOR PLAINTIFF/APPELLANT, QUENTELLA BATISTE AND HAYWARD BATISTE Danielle L. Smith

          FOR DEFENDANT/APPELLEE, UNITED FIRE AND CASUALTY COMPANY, VERON'S SUPERMARKET, LLC AND GREG VERON Charles S. Green, Jr., Henry N. Bellamy

          Panel composed of Judges Fredericka Homberg Wicker, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore.

          EDWARDS, JUDGE PRO TEMPORE, J.

         Plaintiffs, Quentella Batiste and her husband, Hayward Batiste, appeal the trial court's judgment granting summary judgment in favor of defendants, Veron's Supermarket, LLC, ("Veron's Supermarket") and its insurer, United Fire and Casualty Company ("United Fire")(or collectively, "Veron's Supermarket"). For the following reasons, we find the trial court properly determined that the Batistes will not be able to prove that Veron's Supermarket had constructive notice of an allegedly hazardous condition, an essential element of their cause of action pursuant to La. R.S. 9:2800.6. Accordingly, we affirm the trial court judgment.

         FACTS AND PROCEDURAL HISTORY

         On August 3, 2015, Quentella and Hayward Batiste filed suit against Veron's Supermarket and its insurer, United Fire, seeking to recover damages for injuries allegedly sustained as result of a November 9, 2014 slip and fall accident inside Veron's Supermarket in Lutcher, Louisiana.[1] The Batistes contend that Ms. Batiste, accompanied by her adolescent granddaughter, slipped and fell in a puddle of water while traversing the supermarket's beer and beverage aisle as she made her way to the check-out counter located at the front of the store. Ms. Batiste purportedly suffered injuries to her left shoulder necessitating surgery as a result of the fall.

         Veron's Supermarket subsequently filed a motion for summary judgment on the basis that the Batistes could not meet their burden of proof under La. R.S. 9:2800.6, the Louisiana Merchant Liability Statute. Specifically, Veron's Supermarket argued the Batistes could not prove Veron's Supermarket created or had actual or constructive knowledge of the allegedly hazardous condition (i.e., water on the floor of the aisle), an essential element of their claim under La. R.S. 9:2800.6, because the Batistes failed to demonstrate that the alleged water on the floor existed for such a period of time that it would have been discovered if Veron's Supermarket had exercised reasonable care.

         In support of its motion for summary judgment, Veron's Supermarket submitted the deposition testimony of Ms. Batiste wherein she testified that she did not know where the alleged substance upon which she fell came from, what caused it, how long the substance was present on the floor prior to her fall, or whether anyone at the store had actual knowledge that the alleged substance was present on the floor before she fell. Additionally, Veron's Supermarket submitted surveillance video taken at the time of Ms. Batiste's fall, which it claimed failed to show any condition existing on the floor that could have caused Ms. Batiste to fall. Veron's Supermarket also submitted the deposition testimony of several of its employees, including Michael Fountain, George Maroudas, and Evonté Brown, each of whom testified that they did not observe or feel any substance on the floor immediately after Ms. Batiste's fall. Based on the evidence presented, Veron's Supermarket averred that Ms. Batiste could not prove that Veron's Supermarket had constructive notice of a hazardous condition that existed on the floor for some period of time prior to her fall and, thus, could not carry her burden of proof of this element at trial mandating the grant of summary judgment in its favor.

         The Batistes also filed a partial motion for summary judgment on the issue of spoliation of evidence, an issue raised for the first time in their motion, arguing that Veron's Supermarket intentionally destroyed portions of the surveillance videotape that captured the condition of the floor that existed for a length of time both prior and subsequent to Ms. Batiste's slip and fall, which the Batistes claim would have shown the liquid substance on the floor as well as what the store employees did to remove the spill. Because the footage preserved by Veron's Supermarket captured only fifty-five seconds, and only showed Ms. Batiste's actual slip and fall, the Batistes sought to have the lower court impose an adverse presumption against Veron's Supermarket "as to the single issue they cannot prove: that the condition of the aisle presented an unreasonable risk of harm." According to the Batistes, Veron's Supermarket selectively preserved only that portion of the videotape that was beneficial to its case and intentionally destroyed or purged the remainder of the videotape because the remainder was detrimental to Veron's Supermarket's case and favorable to the Batistes.

         Additionally, the Batistes claimed that, based on the deposition testimony of Evonté Brown, wherein she conceded that the store's maintenance records did not substantiate that she had performed a floor check during the hour prior to the incident in violation of the store's clean-up policies and procedures, "constructive notice" on the part of Veron's Supermarket should have been inferred since the evidence showed that reasonable care had not been exercised. Arguing that the adverse presumption applied and that they had proven every element of their case (i.e., that Veron's Supermarket had constructive notice that the liquid substance on the floor presented an unreasonable risk of harm and had existed on the aisle for a period of time prior to Ms. Batiste's fall, and that Veron's Supermarket had failed to exercise reasonable care to keep its aisles and floors free of hazardous conditions), the Batistes argued Veron's Supermarket was not entitled to summary judgment.

         In response to the Batistes' spoliation claim, Veron's Supermarket filed a Motion to Strike objecting to "improper summary judgment evidence and argument" submitted by the Batistes in support of their claim. Specifically, Veron's Supermarket objected to the Batistes' attempt to convert their opposition to Veron's Supermarket's motion for summary judgment into an untimely filed discovery motion, and objected to various exhibits submitted by the Batistes in support of their spoliation claim.

         The parties' respective motions came for hearing on April 17, 2017, at which time the trial court agreed with Veron's Supermarket that no genuine issue of material fact existed, and that the evidence presented did not establish the temporal element necessary in order for the Batistes to carry their burden of proving constructive notice.[2] Thereafter, on May 8, 2017, the trial court issued a judgment that granted summary judgment in favor of Veron's Supermarket and dismissed the Batistes' suit, with prejudice.[3]

         The Batistes now appeal the May 8, 2017 judgment of the trial court on the basis that they proved all elements of their claim as mandated in La. R.S. 9:2800.6, specifically the notice requirement, by offering sufficient evidence that Veron's Supermarket had constructive notice of the unsafe condition that caused their damages prior to Ms. Batiste's slip and fall. The Batistes also challenge the trial court's finding that no genuine issue of material fact existed regarding whether Veron's Supermarket intentionally, and without reasonable explanation, destroyed videotape evidence that was detrimental to their case and beneficial to the Batistes.

         DISCUSSION

         Standard of Review

         When reviewing a district court's ruling on a motion for summary judgment, we apply the de novo standard of review. Flowers v. Wal-Mart Stores, Inc., 12-140, p. 4 (La.App. 5 Cir. 7/31/12), 99 So.3d 696, 698. We use "the same criteria that govern the trial court's determination of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law." Reynolds v. Bordelon, 14-2371, p. 3 (La. 6/30/15), 172 So.3d 607, 610.

         Motion for Summary Judgment

         A motion for 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. C.C.P. art. 966(A)(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. See La C.C.P. art. (A)(2); Robinson v. Jefferson Parish School Bd., 08-1224, p. 17 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043.

         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. C.C.P. art. 966(F). Ordinarily, the burden of proof is on the mover. See La. C.C.P. art. 966(D)(1). 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 the 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. C.C.P. art. 966(D)(1); Temple v. Morgan, 15-1159, pp. 12-13 (La.App. 1 Cir. 6/3/16), 196 So.3d 71, 76. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Babin v. Winn Dixie La., Inc., 00-0078, p. 7 (La. 6/30/00), 764 So.2d 37, 40.

         A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. King v. Illinois Nat. Ins., 08-1491, p. 10 (La. 4/3/09), 9 So.3d 780, 784. A genuine issue of material fact is one as to which reasonable minds could disagree; if reasonable minds could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.; Alwell v. Meadowcrest Hosp., Inc., 07-376, p. 4 (La.App. 5 Cir. 10/30/07), 971 So.2d 411, 414. When examining factual issues, courts may not consider the merits of the case, make credibility determinations, evaluate testimony, or weigh evidence. Manis v. Zemlik, 11-799, p. 8 (La.App. 5 Cir. 5/8/12), 96 So.3d 509, 512-513. Therefore, "despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor." Id., 11-799, p. 7, 96 So.3d at 512-513.

         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. Cyntrenicks v. Plaza, L.L.C., 14-1115, pp. 3-4 (La App. 1 Cir. 8/19/15), 182 So.3d 80, 82. Veron's Supermarket's motion for summary judgment is governed by La. R.S. 9:2800.6, the Louisiana Merchant Liability Statute.

         Louisiana Merchant Liability Statute - La. R.S. 9:2800.6

         Louisiana Revised Statute 9:2800.6 governs merchant liability for slip and fall cases and places a heavy burden of proof on plaintiffs in claims against a merchant for damages arising out of a fall on the premises. Thus, in order for the Batistes to prevail in their negligence claim for the injuries Ms. Batiste purportedly suffered, they ...


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