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Clark v. Circle K Stores, Inc.

Court of Appeals of Louisiana, Third Circuit

February 6, 2019

JUDY CLARK
v.
CIRCLE K STORES, INC.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2015-2709 HONORABLE RONALD F. WARE, DISTRICT JUDGE

          Ryan J. Roemershauser Jade A. Forouzanfar Blue Williams, L.L.P. COUNSEL FOR DEFENDANT/APPELLEE: Circle K Stores, Inc.

          Melissa Shaw-Brown Erin McCall Alley Baggett, McCall, Burgess, Watson & Gaughan, L.L.C. COUNSEL FOR PLAINTIFF/APPELLANT: Judy Clark

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and D. Kent Savoie, Judges.

          JOHN D. SAUNDERS JUDGE

         This is a case involving a slip and fall at a convenience store. The merchant was granted a summary judgment under a finding of the trial court that the patron could not prove the elements under La.R.S. 9:2800.6 at trial. This appeal follows.

         FACTUAL AND PROCEDURAL HISTORY:

         Plaintiff/Appellant, Judy Clark, was a customer at the Circle K store located at 4501 S. Highway 27 in Sulphur, Louisiana on October 20, 2014. After exchanging a "Good Morning" with a Circle K employee, Clark went to get a fountain drink. As she approached the fountain drinks, she slipped, fell, and allegedly injured herself.

         Prior to the slip and fall, Mr. Adam McCoy and Mr. Robert Cummings entered the store as customers. Mr. Cummings filled his 44-ounce cup then proceeded to spill the drink onto the floor accidentally. Mr. McCoy, the husband of a Circle K employee who was not working at that time, went to grab a mop. According to Mr. McCoy, he yelled out generally that someone had spilled, and he thought that the employee had heard his declaration. Video evidence indicated that 11 seconds transpired between the spill and Clark's slip and fall.

         On July 9, 2015, Clark filed suit against Circle K Stores, Inc. (Circle K). She alleged injuries to her neck, back, right shoulder, right elbow, and headaches. After discovery inclusive of depositions and exchange of the video of the incident, Circle K filed a motion for summary judgment on the matter. The trial court heard arguments on November 28, 2017, and granted Circle K's motion.

         It is from this judgment that Clark presents two assignments of error.

         ASSIGNMENT OF ERROR NUMBERS ONE AND TWO:

         Clark's first assignment of error is that the trial court erred in granting Circle K's Motion for Summary Judgment on the issue of notice because she met her burden by offering evidence of actual notice on the part of Circle K. In her second assignment of error, Clark asserts that the trial court erred in considering reasonable care as it is a factual determination not proper for summary judgment. It was not an issue brought forth in Defendant's Motion for Summary Judgment, and ultimately Plaintiff/Appellant offered evidence that Circle K failed to use reasonable care, thereby precluding summary judgment.

         Appellate courts review summary judgments de novo, under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544. As such, both assignments of error require a de novo review wherein we give no weight to the trial court's finding. Thus, we ...


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