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Miller v. Shelter Insurance Co.

Court of Appeals of Louisiana, Third Circuit

January 30, 2019



          Jerry Lytel Lavespere, Jr. Attorney at Law COUNSEL FOR PLAINTIFF/APPELLANT: Billy B. Miller

          Jason R. Bell Cox, Cox, Filo, Camel & Wilson COUNSEL FOR PLAINTIFF/APPELLANT: Billy B. Miller

          Michael M. Thompson Taylor, Wellons & Duhe COUNSEL FOR DEFENDANT/APPELLEE: Lowe's Home Centers, Inc.

          Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.


         Plaintiff, Billy Miller, appeals the trial court's summary judgment in favor of Defendant, Lowe's Home Centers, L.L.C., dismissing his claims against it. For the following reasons, we reverse and remand for further proceedings.


         On April 12, 2016, Mr. Miller filed a petition alleging that he was injured on or about October 9, 2015, when a vehicle driven by Lance Carruth struck him in the parking lot of a Lowe's store as he was walking out of the store. Mr. Miller named Mr. Carruth, and Mr. Carruth's insurer, Shelter Insurance Company, as Defendants. On June 2, 2016, Mr. Miller filed a supplemental and amending petition against Lowe's alleging that his injuries were caused by the fault and negligence of a Lowe's employee, including "failing to warn;" "failing to keep a proper lookout;" and "failure to use reasonable care and caution." On March 8, 2017, a judgment was signed dismissing Mr. Miller's claims against Mr. Carruth and Shelter, pursuant to a joint motion by the parties.

         Lowe's filed a Motion for Summary Judgment on June 15, 2017, seeking the dismissal of Mr. Miller's claims. It argued that Mr. Miller would not be able to prove that Lowe's breached a duty, or that any alleged breach of duty was a cause- in-fact of the accident. Specifically, Lowe's argued that, on the day of the accident, Mr. Carruth

pulled [his] vehicle in front of the contractor entrance of Lowes. As he parked his vehicle, a forklift approached and needed room to get around Mr. Carruth's vehicle. Lowes anticipates argument in opposition to this Motion that the operator of the forklift, David Fontenot, signaled Mr. Carruth to reverse. That issue is not material. There is no dispute that Lance Carruth checked his mirrors prior to reverse and was looking towards the back of his vehicle at all times while proceeding in reverse. Carruth was not looking at any Lowe's employee and he was not relying on any indication from a Lowe's employee that the path was clear to proceed in reverse.

         Therefore, according to Lowe's, Mr. Carruth "assumed the risk of potentially harming a customer by looking backward and proceeding in reverse," and summary judgment was appropriate.

         In support of its motion, Lowe's attached the deposition of Mr. Carruth, wherein Mr. Carruth testified that on the day of the accident at issue, he was driving his 2010 Chevrolet Silverado and had gone to Lowe's to purchase building materials. He left the items he wished to purchase in the store and then moved his vehicle from the parking lot into the loading area in front of the store. He indicated that as he was pulling into the loading area, there was a red Dually to his right, so he pulled into the left lane of the loading area, and there was a forklift to his immediate front left, which was facing the building. He testified that as he pulled into the loading area, the driver of the forklift, who he assumed was a Lowe's employee, gestured to him to back up so that the forklift driver could get to the red Dually.

         Mr. Carruth also testified in his deposition that there was a flag attendant near the forklift, who was also a Lowe's employee. He indicated that the flag attendant had her back towards his vehicle and did not direct Mr. Carruth to back up.

         According to Mr. Carruth's deposition testimony, as he shifted his truck into reverse, he looked into his left mirror, and then turned to his right to back up. He testified: "[O]ut of nowhere, I see, I guess Mr. Miller. . . . And then I see him hobbling around so I put . . . my truck rather in Park and got out and asked him what happened and he said he hit his leg on my hitch." Mr. Carruth indicated he assumed Mr. Miller was coming out of the store and that he had approached his vehicle from the left side. Mr. Carruth further testified in his deposition as follows:

Q. . . . . So you would not have been backing up if it wouldn't have been for the Lowe's employee directing you to backup; correct?
. . . .
A. That's correct.
. . . .
Q. Okay. To your knowledge, the Lowe's employee was just getting you to move so they could access the ...

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