APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 759-798, DIVISION
"A" HONORABLE RAYMOND S. STEIB, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, ANNA LANDRY David L. Browne
Cynthia M. Cimino
COUNSEL FOR DEFENDANT/APPELLEE, LESON CHEVROLET COMPANY,
INC., AND WESTERN HERITAGE INSURANCE COMPANY Doris T.
Bobadilla John C. Getty
Cynthia M. Cimino COUNSEL FOR DEFENDANT/APPELLEE, LESON
CHEVROLET COMPANY, INC., AND WESTERN HERITAGE INSURANCE
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Robert A. Chaisson
G. GRAVOIS JUDGE
slip and fall case, plaintiff/appellant, Mrs. Anna Landry,
appeals a summary judgment granted in favor of defendants,
Leson Chevrolet Company, Inc. ("Leson"), and its
liability insurer, Western Heritage Insurance Company
(collectively "defendants"), which judgment
dismissed her claims against defendants with prejudice. For
the following reasons, we find that genuine issues of
material fact remain in this matter that preclude the
granting of summary judgment in favor of defendants at this
time. We accordingly reverse the judgment and remand the
matter for further proceedings.
AND PROCEDURAL HISTORY
morning of April 13, 2015, Mrs. Landry brought her vehicle, a
Suburban, to Leson Chevrolet in Harvey, Louisiana, for
scheduled service. In her deposition, Mrs. Landry testified
that she lived about thirty minutes from Leson and that it
had started raining while she was on the way there. When she
arrived at Leson's service department, which she had used
regularly for her vehicle's service in the past, she was
directed by a Leson employee to park her vehicle in one of
the four service bays, which had ceramic floors and which
were covered and protected from the elements. The bays were
described as four distinct driveways into which customers
would pull their cars and be met by a service agent. When
Mrs. Landry exited her vehicle under the covered service bay,
she stepped out on to the ceramic floor and immediately fell,
landing on her bottom. Mrs. Landry stated that she was
wearing flip flops at the time. She stated that she always
exited her vehicle in the same manner, by turning sideways to
the left and placing her feet on the running board of her
vehicle to aid in her descent.
being helped to her feet by a Leson employee, Mrs. Landry
went with the service technician, Shane Lambert, to his
cubicle, where he wrote up her service ticket and secured her
"loaner" car from the dealership, after which she
drove straight to the emergency room because she was in great
pain. At the emergency room, she was examined and diagnosed
with a broken tailbone. She returned to Leson two days later,
requesting that they author an incident report regarding her
fall in the service bay. On that date, Mrs. Landry met with
Mr. Timothy Colson, the service department manager, who was
not present when she had fallen two days earlier. After
speaking with Mrs. Landry and two other Leson employees who
were present on the day of her fall, Mr. Colson prepared an
incident report of Mrs. Landry's fall.
petition, filed on April 12, 2016, Mrs. Landry alleged that
she slipped and fell due to slick and wet conditions of the
floor of Leson's dealership due to rainwater that had
accumulated on the service bay floor. She alleged that the
excessive water and/or puddle on the floor where she fell
constituted a hazardous and unreasonably unsafe condition for
dealership patrons like her that was reasonably foreseeable
to Leson, about which Leson had actual or constructive
notice, and about which Leson failed to exercise reasonable
care to remedy. She further alleged that Leson did not
provide any warning to its customers of the slick and wet
conditions of the floor of its dealership. She asserted that
she was entitled to damages from defendants pursuant to the
general negligence principles of La. C.C. arts. 2315 and
2316, and the premises liability principles under La. C.C.
arts. 2317 and 2317.1.
moved for summary judgment on January 20, 2017, arguing that
they are not liable for any of Mrs. Landry's injuries
because of the open and obvious condition that she observed
and of which she was aware prior to her alleged slip and
fall. They also argued that Mrs. Landry cannot meet her
burden that the alleged condition of the service bay at the
time of the incident constituted an unreasonable risk of harm
from which Leson owed Mrs. Landry a duty of protection.
Additionally, they argued that Mrs. Landry cannot prove that
Leson had created the condition or had actual or constructive
notice of the condition.
their motion for summary judgment, defendants argued that
Mrs. Landry's claim for damages is governed by La. R.S.
9:2800.6. Defendants argued that the evidence produced in
discovery showed that Mrs. Landry was aware that the floors
were generally wet (and that some of the rainwater came from
her car) and that she agreed that the generally wet condition
of the floor was "open and obvious." Accordingly,
they argued that under La. R.S. 9:2800.6, they owed no duty
to Mrs. Landry, and that she could not meet her evidentiary
burden of proof at trial. Their motion also pointed out that
Mrs. Landry could not establish the temporal element of La.
R.S. 9:2800.6, as she could not state exactly what was on the
floor where she specifically fell, nor how long it might have
been there, given her deposition testimony that she did not
look at the floor prior to stepping out of her vehicle.
Accordingly, they argued, Mrs. Landry did not present any
evidence that Leson had actual or constructive notice of the
Landry opposed the motion for summary judgment, arguing that
genuine issues of material fact remained and that defendants
had not borne their statutory burden of
proof. Citing the deposition testimony of
several Leson employees, Mrs. Landry argued in her opposition
that their testimonies established that Leson had no policies
or procedures in place for maintaining the service bay floor
hazard-free, that Leson did not exercise reasonable care to
address the "hazardous condition" of its floor that
was "extremely wet from rain, " and that Leson did
nothing to warn its customers of the hazardous condition that
morning. She also argued that Leson could not be exonerated
because the hazardous condition was "open and obvious,
" because material issues of fact remained, particularly
about Leson's rainy day procedures. Finally, she argued
that material issues of fact remained regarding whether Leson
had actual or constructive notice of the condition.
motion for summary judgment was heard on September 13, 2017,
whereupon the trial court took the matter under advisement.
On September 15, 2017, the trial court issued a written
judgment granting defendants' motion for summary
judgment, dismissing Mrs. Landry's case with prejudice.
The trial court also issued written reasons for judgment that
same day. Mrs. Landry's timely appeal followed.
appeal, Mrs. Landry argues that the trial court erred in
applying an "inapplicable" burden of proof, namely
that she failed to put forth "concrete" evidence in
support of her claim. She also argues that the trial court
erred when it ignored direct and circumstantial evidence of
the unreasonably dangerous condition-the rain-slickened
ceramic floor-upon which she slipped. Alternatively, she
argues that the trial court erred in otherwise failing to
find that genuine issues of material fact existed, thus
precluding the granting of defendants' motion for summary
an opportunity for adequate discovery, 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 burden of proof rests with the mover. Nevertheless,
if the mover will not bear the burden of proof at trial on
the issue that is before the court on the motion for summary
judgment, the mover's burden on the motion does not
require him to negate all essential elements of the adverse
party's claim, action, or defense, but rather to 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. The burden is on the adverse party to
produce factual support sufficient to establish the existence
of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law." La. C.C.P.
appeal, our review of summary judgments is de novo
under the same criteria that govern the district court's
consideration of whether summary judgment is appropriate.
Pizani v. Progressive Ins. Co., 98-225 (La.App. 5
Cir. 9/16/98), 719 So.2d 1086, 1087. Thus, appellate courts
ask the same questions the trial court does in determining
whether summary judgment is appropriate: whether there is any
genuine issue of material fact, and whether the mover is
entitled to judgment as a matter of law. Breaux v. Fresh
Start Properties, L.L.C., 11-262 (La.App. 5 Cir.
11/29/11), 78 So.3d 849, 852. A decision as to the propriety
of a grant of a motion for summary judgment must be made with
reference to the substantive law applicable to the case.
Bach v. Bd. of River Port Pilot Comm'rs, 15-765
(La.App. 5 Cir. 5/12/16), 193 So.3d 355, 362.
parties argued below and before this Court that the
substantive law applicable to this case is La. R.S. 9:2800.6,
A. A merchant owes a duty to persons who use his premises to
exercise reasonable care to keep his aisles, passageways, and
floors in a reasonably safe condition. This duty includes a
reasonable effort to keep the premises free of any hazardous
conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a
person lawfully on the merchant's premises for damages as
a result of an injury, death, or loss sustained because of a
fall due to a condition existing in or on a merchant's
premises, the claimant shall have the burden of proving, in
addition to all other elements of his cause of action, all of
(1) The condition presented an unreasonable risk of harm to
the claimant and that risk of harm was ...