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
PLAINTIFF/APPELLANT, QUENTELLA BATISTE AND HAYWARD BATISTE
Danielle L. Smith
DEFENDANT/APPELLEE, UNITED FIRE AND CASUALTY COMPANY,
VERON'S SUPERMARKET, LLC AND GREG VERON Charles S. Green,
Jr., Henry N. Bellamy
composed of Judges Fredericka Homberg Wicker, Hans J.
Liljeberg, and Marion F. Edwards, Judge Pro Tempore.
EDWARDS, JUDGE PRO TEMPORE, J.
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.
AND PROCEDURAL HISTORY
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. 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
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.
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.
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
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.
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.
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. 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
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.
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.
for Summary Judgment
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.
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.
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.
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
Merchant Liability Statute - La. R.S. 9:2800.6
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 ...