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Landry v. Leson Chevrolet Company, Inc.

Court of Appeals of Louisiana, Fifth Circuit

June 6, 2018

ANNA LANDRY
v.
LESON CHEVROLET COMPANY, INC., AND WESTERN HERITAGE INSURANCE COMPANY

          ON 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 PRESIDING

          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 COMPANY

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson

          JUDE G. GRAVOIS JUDGE

         In this 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.

         FACTS AND PROCEDURAL HISTORY

         On the 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.

         After 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.

         In her 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.

         Defendants 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.

         In 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 alleged condition.

         Mrs. 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.[1] 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.

         The 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.

         On 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 judgment.

         ANALYSIS

         "After 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. art. 966(D)(1).

         On 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.

         The parties argued below and before this Court that the substantive law applicable to this case is La. R.S. 9:2800.6, [2] which provides:

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 the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was ...

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