APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 775-278, DIVISION
"A" HONORABLE RAYMOND S. STEIB, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, DESELLE MILTON-GUSTAIN AND
DONELL GUSTAIN Raynique Keelen
COUNSEL FOR DEFENDANT/APPELLEE, THE SALVAGE STORE, INC. AND
COVINGTON SPECIALTY INSURANCE COMPANY Paul D. Palermo Craig
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and John J. Molaison, Jr.
G. GRAVOIS JUDGE.
slip and fall case, plaintiffs, Deselle Milton-Gustain and
Donell Gustain, appeal a summary judgment granted in favor of
defendants, The Salvage Store, Inc. and its insurer,
Covington Specialty Insurance Company (collectively,
"The Salvage Store"), which judgment dismissed the
Gustains' claims for damages with prejudice. For the
following reasons, we affirm.
AND PROCEDURAL HISTORY
morning of September 8, 2016, the Salvage Store located in
Harahan, Louisiana, opened for business at 8:30 a.m. Mr. and
Mrs. Gustain arrived at the store between 8:30 and 9:30 a.m.
to do some shopping. After shopping in the store for
approximately fifteen to twenty minutes, Mrs. Gustain headed
to the produce section when she allegedly encountered an
"oily, slippery substance" located on the floor
near a wooden crate, which substance allegedly caused her to
slip and fall and sustain injuries to her neck and back.
August 23, 2017, the Gustains filed suit against The Salvage
Store seeking damages as a result of Mrs. Gustain's fall.
In their petition, the Gustains alleged that The Salvage
Store and its employees knew or should have known that
customers would regularly encounter the unknown substance
when entering the store, and that, absent some kind of
warning, customers would unlikely be able to notice the
substance because it appeared to be the same color as the
floor. The Gustains further alleged that The Salvage Store
breached its duty to keep the premises clean and safe from
defects and hazards, and from exercising due care under the
circumstances. The Gustains asserted they were entitled to
damages pursuant to the premises liability principles under
La. C.C. arts. 2317 and 2317.1, as well as under the merchant
liability statute, La. R.S. 9:2800.6.
Salvage Store answered the Gustains' petition for damages
on October 2, 2017 and discovery commenced. During a December
28, 2017 status conference, the parties stipulated to a
discovery cutoff date of October 1, 2018.
Salvage Store moved for summary judgment on August 6, 2018,
asserting that the Gustains' claim was governed by La.
R.S. 9:2600.6, which sets forth the burden of proof for a
plaintiff in a claim against a merchant for damages due to a
fall on the merchant's premises. The Salvage Store argued
that no genuine issues of material fact existed and that the
Gustains could not meet their burden to prove that The
Salvage Store created or had actual or constructive notice of
the allegedly unreasonably dangerous condition which caused
Mrs. Gustain to slip and fall as required under La. R.S.
9:2800.6. Specifically, The Salvage Store argued that the
Gustains could not establish the temporal element of La. R.S.
9:2800.6 as, based on their deposition testimony, they had no
evidence to establish exactly what was on the floor where
Mrs. Gustain fell, where the alleged substance came from, and
how long it was present on the floor prior to her fall, nor
whether The Salvage Store employees knew or should have known
of the substance prior to her fall.
Gustains filed an opposition to the motion for summary
judgment, asserting that genuine issues of material fact
existed as to how long the substance was present on the floor
prior to Mrs. Gustain's fall, and whether The Salvage
Store had actual or constructive notice of the condition
prior to her fall. In support of their opposition, the
Gustains attached numerous exhibits, the bulk of which were
objected to by The Salvage Store and excluded from evidence
by the Court.The Gustains averred that the written
statement by one of The Salvage Store's former employees,
Nelda Ardis-whom the Gustains were "awaiting to
depose"- created a genuine issue of material fact
precluding summary judgment. In its December 4, 2017
responses to discovery propounded by the Gustains, The
Salvage Store provided the name and last known address of Ms.
Ardis, as someone who was "known to or believed" to
be a person with information or knowledge of the facts
regarding Mrs. Gustain's slip and fall, and as someone
who had provided a written statement concerning the incident.
The Gustains claimed that Ms. Ardis's statement created a
genuine issue of material fact as to whether The Salvage
Store had constructive notice of the substance. Ms. Ardis was
alleged to have been in the vicinity of Mrs. Gustain at the
time of her fall and to have actually witnessed the
hearing on The Salvage Store's motion for summary
judgment on September 25, 2018, counsel for the Gustains
argued that because a motion to compel the deposition of Ms.
Ardis had been filed and was set to be heard on October 22,
2018, the Gustains should have been given the opportunity to
depose Ms. Ardis prior to the hearing on the motion for
summary judgment. Despite no motion for a continuance having
previously been filed by the Gustains, the trial court
inquired of counsel for The Salvage Store as to whether
defendants were amenable to continuing the hearing on the
motion for summary judgment until after Ms. Ardis's
deposition could be taken. Noting that five Salvage Store
employees had already been deposed, none of whom provided any
positive evidence that The Salvage Store had actual or
constructive notice of the alleged slippery substance in
which Mrs. Gustain allegedly slipped and fell, and further
averring that the Gustains' pending motion to compel had
not been properly served upon Ms. Ardis, defendants were not
agreeable to a continuance. Thus, the hearing continued on
and at its conclusion, based upon the admissible deposition
testimony and documentary evidence presented, the trial court
granted summary judgment in favor of The Salvage Store.
trial court issued a written judgment on October 24, 2018,
granting The Salvage Store's motion for summary judgment,
dismissing the Gustains' claims, with prejudice, finding
that the Gustains "failed to prove that defendant, The
Salvage Store, Inc., had actual or constructive knowledge of
the alleged unreasonably dangerous condition as required by
La. R.S. 9:2800.6." The instant appeal ensued.
OF ERROR/ISSUE PRESENTED FOR REVIEW
sole assignment of error/issue presented for this Court's
review is whether the trial court committed reversible error
by prematurely granting The Salvage Store's motion for
summary judgment and dismissing the Gustains' suit when
the Gustains did not have the opportunity to conduct adequate
discovery. Specifically, the Gustains argue that they were
deprived of a fair opportunity to prepare their case because
at the time The Salvage Store's motion for summary
judgment was granted, the trial court had notice that the
Gustains' motion to compel the deposition of Ms. Ardis
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." La. C.C.P. art. 966(A)(3).
"The burden of proof rests with the mover. Nevertheless,
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. 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
entitled to judgment as a matter of law." La. C.C.P.
appeal, our review of summary judgments is de novo
under the same criteria that governs the district court's
consideration of whether summary judgment is appropriate.
Landry v. Leson Chevrolet Company, Inc., 17-665
(La.App. 5 Cir. 6/16/18), 250 So.3d 360, 365. Thus, appellate
courts ask the same questions the trial court does in
determining whether summary judgment is appropriate: whether
there is any genuine issue of material fact, and whether the
mover is entitled to judgment as a matter of law. Breaux
v. Fresh Start Properties, L.L.C., 11-262 (La.App. 5
Cir. 11/29/11), 78 So.3d 849, 852. A decision as to the
propriety of a grant of summary judgment must be made with
reference to the substantive law applicable to the case.
Bach v. Bd. of River Port Pilot Comm'rs, 15-765
(La.App. 5 Cir. 5/12/16), 193 So.3d 355, 362.
Liability Law - La. R.S. 9:2800.6
parties argued below and before this Court that the
substantive law applicable to this case is La. R.S. 9:2800.6.
La. R.S. 9:2800.6(B) sets forth the burden of proof for a
plaintiff in a claim against ...