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Campbell v. Dolgencorp, LLC

Court of Appeals of Louisiana, First Circuit

January 9, 2020

GREGORY ALLEN CAMPBELL
v.
DOLGENCORP, LLC

          Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. 647731. The Honorable William A. Morvant, Judge Presiding

          Charlotte C. McDaniel McGehee Baton Rouge, Louisiana Counsel for Plaintiff/Appellant Gregory Allen Campbell

          Kaye N. Courington Daniel R. Estrada New Orleans, Louisiana Counsel for Defendant/Appellee DG Louisiana, LLC

          BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

          THERIOT, J.

         Gregory Allen Campbell appeals the Nineteenth Judicial District Court's judgment granting DG Louisiana, LLC's motion for summary judgment. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On April 21, 2016, Gregory Allen Campbell filed a petition for damages, naming Dolgencorp, LLC ("Dolgencorp") as defendant. In the petition, Campbell alleged that he was injured at a store owned and operated by Dolgencorp. Specifically, Campbell alleged that while he was in the store's bathroom, he encountered a wet area with no warning signs posted where he slipped and fell. Campbell claimed that the wet area was caused by a mop bucket that had been left to drain.

         On June 6, 2016, DG Louisiana, LLC ("DG") filed a notice of removal, removing the lawsuit from the Nineteenth Judicial District Court, Parish of East Baton Rouge, State of Louisiana, to the United States District Court for the Middle District of Louisiana. DG averred that it had been incorrectly referred to in Campbell's petition as Dolgencorp. The matter was subsequently remanded back to the Nineteenth Judicial District Court.

         On September 6, 2016, Campbell filed a supplemental petition for damages, naming DG as a defendant and reiterating all of the allegations of the original petition. On February 2, 2017, Campbell filed a motion and order to dismiss Dolgencorp, on the grounds that DG is the proper defendant. The trial court signed an order dismissing Dolgencorp on February 3, 2017.

         On July 2, 2018, DG filed a motion for summary judgment, asserting that Campbell cannot satisfy his burden of proof under La. R.S. 9:2800.6. On August 27, 2018, Campbell fax-filed a motion and order to strike DG's motion for summary judgment and for sanctions. Campbell argued that DG's motion for summary judgment was premature, alleging that DG had prevented Campbell from conducting discovery and ignored several attempts to set up a 1442 deposition of DG. On the same date, Campbell fax-filed an opposition to DG's motion for summary judgment. On the following day, August 28, 2018, Campbell filed several exhibits supporting the opposition to DG's motion for summary judgment.

         On September 5, 2018, DG filed a reply to Campbell's opposition to the motion for summary judgment, in which DG alleged that Campbell's exhibits were untimely pursuant to La. Code Civ. P. art. 966. Specifically, DG argued that because the hearing on the motion for summary judgment was set for September 10, 2018, the exhibits should have been filed and served on August 27, 2018. DG pointed out that Campbell fax-filed the opposition on August 27, 2018, but did not file the exhibits in support of that opposition until August 28, 2018.

         The hearing on the motion for summary judgment was held on September 10, 2016. On October 9, 2018, the trial court signed a judgment ordering that Campbell's exhibits be stricken as untimely. The trial court also granted DG's motion for summary judgment. Finally, the trial court denied Campbell's motion to strike DG's untimely motion for summary judgment and for sanctions. In oral reasons, the trial court stated that Campbell cannot satisfy any of the elements of La. R.S. 9:2800.6. Specifically, the trial court noted that Campbell did not know what he had slipped in, how long the unknown substance had been there, or whether the employees knew about the unknown substance. The trial court further noted that even if Campbell could satisfy the first element of La. R.S. 9:2800.6(B) (the condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable), Campbell could not prove that DG had either created or had actual or constructive notice of the condition that caused the damage, nor could Campbell prove that DG had failed to exercise reasonable care.

         This appeal followed.

         ASSIGNMENTS OF ERROR

         Campbell assigns the following as error.

         (1) The trial court erred in granting summary judgment, which was ...


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