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Guidry v. Brookshire Grocery Co.

Court of Appeals of Louisiana, Third Circuit

November 20, 2019

SHEILA M. GUIDRY
v.
BROOKSHIRE GROCERY COMPANY, ET AL.

          ON SUPERVISORY WRIT FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2015-4684-G HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

          Danielle Thompson Paul J. DeMahy The Thompson Law Office, LLC Attorneys for Plaintiff/Respondent Sheila M. Guidry

          Andrew H. Meyers Breaud & Meyers, APLC Attorneys for Defendant/Applicant Brookshire Grocery Company

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and John D. Saunders, Judges.

          SYLVIA R. COOKS JUDGE

         FACTS AND PROCEDURAL HISTORY

         Sheila M. Guidry (Plaintiff) allegedly sustained injuries when she slipped and fell in a Super 1 supermarket, owned by Brookshire Grocery Company (Defendant), on June 21, 2015. Plaintiff alleged an area of water approximately twelve inches in diameter was present on the floor for a sufficient period of time for Defendant to have been aware of the hazard in the exercise of ordinary care. The parties did not dispute that the presence of water on the polished concrete floor presents an unreasonably dangerous condition. The trial court granted summary judgment on the issue of liability in favor of Plaintiff. Defendant filed supervisory writs seeking review of the trial court's judgment asserting the trial court erred in finding it had constructive notice of a hazardous condition and failed to take remedial action resulting in Plaintiff's fall.

         ANALYSIS

         We review summary judgments de novo applying the same criteria governing the trial court's determination of whether to grant that summary judgment. Under the provisions of La.Code Civ.P. art 966(A)(3), a motion for summary judgment shall be granted upon a showing that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.

         Plaintiff brings her claims under La.R.S. 9:2800.6, commonly known as the merchant liability statute. It provides that:

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 hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) "Constructive notice" means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) "Merchant" means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, ...

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