BILLY B. MILLER
SHELTER INSURANCE COMPANY, ET AL.
FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
255, 535 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE
Lytel Lavespere, Jr. Attorney at Law COUNSEL FOR
PLAINTIFF/APPELLANT: Billy B. Miller
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.
composed of Sylvia R. Cooks, John E. Conery, and D. Kent
KENT SAVOIE JUDGE
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.
AND FACTUAL BACKGROUND
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.
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.
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
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.
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
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 ...