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David v. Dollar Tree Stores, Inc.

Court of Appeals of Louisiana, Fifth Circuit

October 2, 2019

ELIZABETH DAVID
v.
DOLLAR TREE STORES, INC., ABC CORPORATIONS 1-3, AND JOHN DOES 1-5

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 764-108, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, ELIZABETH DAVID Stephen H. Vogt

          COUNSEL FOR DEFENDANT/APPELLEE, DOLLAR TREE STORES, INC. Donald E. McKay, Jr. Marc E. Devenport Tasha W. Hebert Zachary D. Howser

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

          ROBERT A. CHAISSON JUDGE.

         In this case arising from a slip and fall, Elizabeth David appeals an October 31, 2018 judgment of the trial court which granted Dollar Tree Stores, Inc.'s motion for summary judgment and dismissed Ms. David's claims with prejudice. For the following reasons, we affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         On August 30, 2015, at around 6:00 p.m., Ms. David entered the Dollar Tree store located at 800 South Clearview Parkway in Harahan, Louisiana. According to her petition for damages and her deposition testimony, Ms. David entered the store alone, located and selected some body spray that she intended to purchase, and proceeded to the cashier to pay for her items. Less than five minutes later, she decided to buy more bottles of body spray, so she returned to the aisle where the body spray was located. After picking up another two bottles, as she turned to return to the cash register, she slipped and fell on a thawed piece of once-frozen mini pizza approximately the size of a fifty-cent piece. Ms. David did not see the mini pizza at any time prior to her fall and there were no known witnesses to her fall. Ms. David reported the incident to the cashier and the assistant manager.

         In response to Ms. David's petition for damages, Dollar Tree filed a motion for summary judgment in which it argued that Ms. David could not meet her evidentiary burden to prove that Dollar Tree had constructive notice of the hazardous condition of the mini pizza on the floor prior to Ms. David's fall as required under La. R.S. 9:2800.6.[1] Following a hearing on the motion, the trial court agreed with Dollar Tree's position and granted its motion for summary judgment. Ms. David's timely appeal followed.

         On appeal, Ms. David argues that the trial court erred in granting the motion for summary judgment by failing to consider reasonable inferences of fact sufficient to defeat the motion. In particular, Ms. David asserts that the fact that the frozen mini pizza had thawed is sufficient for a finder of fact to infer that the hazardous condition had existed for some period of time prior to the accident so that it should have been discovered and corrected. We consider this argument in our de novo review below.

         DISCUSSION

         Appellate courts review summary judgments de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Pouncy v. Winn-Dixie Louisiana, Inc., 15-189 (La.App. 5 Cir. 10/28/15), 178 So.3d 603, 605. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966. 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. Id. 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. Id. 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. Id.

         The applicable law in this case, Louisiana's Merchant Liability Statute, La. R.S. 9:2800.6, states in pertinent parts:

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 ...

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