Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Milton-Gustain v. The Salvage Store, Inc.

Court of Appeals of Louisiana, Fifth Circuit

October 2, 2019

DESELLE MILTON-GUSTAIN AND DONELL GUSTAIN
v.
THE SALVAGE STORE, INC. AND COVINGTON SPECIALTY INSURANCE COMPANY

          ON 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 PRESIDING

          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 V. Sweeney

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and John J. Molaison, Jr.

          JUDE G. GRAVOIS JUDGE.

         In this 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.

         FACTS AND PROCEDURAL HISTORY

         On the 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.

         On 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.

         The 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.

         The 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.

         The 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.[1]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.[2] 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 incident.[3]

         At 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.

         The 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.

         ASSIGNMENT OF ERROR/ISSUE PRESENTED FOR REVIEW

         The 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 was pending.

         LAW AND ANALYSIS

         Summary Judgment

         "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." 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. art. 966(D)(1).

         On 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.

         Merchant Liability Law - La. R.S. 9:2800.6

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.