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
COUNSEL FOR PLAINTIFF/APPELLANT, ELIZABETH DAVID Stephen H.
COUNSEL FOR DEFENDANT/APPELLEE, DOLLAR TREE STORES, INC.
Donald E. McKay, Jr. Marc E. Devenport Tasha W. Hebert
Zachary D. Howser
composed of Judges Jude G. Gravois, Robert A. Chaisson, and
Hans J. Liljeberg
A. CHAISSON JUDGE.
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.
AND PROCEDURAL HISTORY
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.
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. 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.
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.
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.
applicable law in this case, Louisiana's Merchant
Liability Statute, La. R.S. 9:2800.6, states in pertinent
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 ...