YVETTE DESALVO DAVIS VERSUS U-HAUL COMPANY OF LOUISIANA

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YVETTE DESALVO DAVIS NO. 13-CA-I004 VERSUS FIFTH CIRCUIT U-HAUL COMPANY OF LOUISIANA COURT OF APPEAL STATE OF LOUISIANA ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 718-878, DIVISION "0" HONORABLE ROSS P. LADART, JUDGE PRESIDING MAY 14,2014 SUSAN M. CHEHARDY CHIEF JUDGE Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert M. Murphy COURT OF APPEAL BEN E. CLAYTON ATTORNEY AT LAW 200 Commercial Square Road Suite D Slidell, Louisiana 70461 COUNSEL FOR APPELLANT, YVETTE DeSALVO DAVIS FIFTH CTRCtT1T Fit FT' MAY GLENN B. ADAMS LEANDRO R. AREA ATTORNEYS AT LAW 704 Carondelet Street New Orleans, Louisiana 70130 COUNSEL FOR APPELLEE, U-HAUL COMPANY OF LOUISIANA AFFIRMED 14 2014 Plaintiff-customer appeals the summary judgment dismissing her action for damages in a slip-and- fall case against defendant-merchant. For the following reasons, we affirm. Facts and Procedural History On June 13,2012, Yvette DeSalvo Davis ("Ms. Davis") allegedly injured herself when she slipped and fell on a piece of "cooked onion" on the floor of the If-Haul retail rental facility at #4 Westbank Expressway in Gretna, Louisiana. She filed suit on September 11,2012 against the store's operator, If-Haul Company of Louisiana ("V-Haul"), seeking damages for her personal injuries. On September 9,2013, If-Haul filed a motion for summary judgment contending that Ms. Davis would not be able to bear her burden of proof under La. R.S. 9:2800.6 that If-Haul had actual or constructive notice of the "slippery" substance prior to the occurrence. In support of its motion for summary judgment, If-Haul offered plaintiffs answers to interrogatories and requests for production, and its responses to plaintiff s requests for admissions. -2­ Ms. Davis, in her opposition to If-Haul's motion for summary judgment, offered affidavits from herself and her brother, Russell DeSalvo. Ms. Davis, in her affidavit, attested that, on June 13,2012, she was walking around the retail portion of the U'-Haul store when she slipped on "a piece of cooked onion" and fell. She attested that she had not noticed the "onion" before she fell. Ms. Davis further attested that there were two employees in the store when she fell; one of the employees took an incident report. Ms. Davis attested that she received medical treatment at the Ochsner Medical Center in Gretna. Finally, Ms. Davis attested that she was not impaired that day. Mr. Russell DeSalvo, plaintiff s brother who witnessed the incident, filed an affidavit that corroborated Ms. Davis' affidavit. On October 16,2013, the trial judge heard and granted If-Haul's summary judgment and dismissed plaintiffs suit. Plaintiff appeals that judgment. Law and Argument On appeal, Ms. Davis argues that the trial court erred in granting U'-Haul's motion for summary judgment. Ms. Davis contends that there exist genuine issues of material fact regarding whether Ll-Haul had "constructive notice" of the hazard in question. Ms. Davis contends that "the testimony of Ms. Davis and Mr. DeSalvo established the close proximity of at least two employees ofthe defendant at the time of the slip-and-fall accident on the U-Haul premises." Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits 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(B). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for -3­ one or more elements essential to the adverse party's claim. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that they will be able to meet their evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id.; Babin v. Winn-Dixie Louisiana, Inc., 00-0078 (La. 6/30/00), 764 So.2d 37, 38-41; Hardy v. Bowie, 98-2821 (La. 9/8/99), 744 So.2d 606. On appeal, our review of summary judgments is de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Muller v. Carrier Corp., 07-770 (La.App. 5 Cir. 4/15/08), 984 So.2d 883, 885. In a slip-and-fall case against a merchant, a plaintiff must prove the essential elements of a standard negligence claim in addition to the requirements under La. R.S.9:2800.6. White v. Wal-Mart Stores, 97-0393 (La. 9/9/97), 699 So.2d 1081. La. R.S. 9:2800.6 declares that a merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and tloors 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. Lousteau v. K-Mart Corp., 03-1182 (La.App. 5 Cir. 3/30/04), 871 So.2d 618,623, writ denied, 04-1027 (La. 6/25/04), 876 So.2d 835. Under La. R.S. 9:2800.6, a plaintiff has the burden of proving that the condition presented an unreasonable risk of harm, that the risk of harm was reasonably foreseeable, and that the merchant either created or had actual or constructive notice of the condition, which caused the damage, prior to the -4­ occurrence. Id. "Constructive notice" means that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. Id. To carry the burden of proving the temporal element of La. R.S. 9:2800.6(B)(2), a plaintiff must present positive evidence of the existence of the condition prior to the accident. Barrios v. Wal-Mart Stores, Inc., 00-2138 (La.App. 1 Cir. 12/28/01),804 So.2d 905, 907, writ denied, 02-0285 (La. 3/28/02), 812 So.2d 636. Though there is no bright-line time period, a plaintiff must show that" 'the condition existed for such a period of time .... ' " Id. (citing White v. Wal-Mart Stores, Inc., 699 So.2d at 1084). Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily an issue of fact. Id. In the instant case, we find that U-Haul pointed out that there was an absence of factual support for an essential element ofplaintiff s cause of action under La. R.S. 9:2800.6, because plaintiff was unable to satisfy the "constructive notice" requirement of the statute by showing that the "cooked onion" was on the floor for some period of time prior to her alleged fall. Accordingly, the district court properly granted summary judgment in favor ofU-Haul. Decree Based on the foregoing, the trial court judgment is affirmed. All costs in this court are assessed against plaintiff, Yvette DeSalvo Davis. AFFIRMED -5­ SUSAN M. CHEHARDY CHERYL Q. LANDRIEU CHIEF JUDGE CLERK OF COURT MARY E. LEGNON FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON ROBERT M. MURPHY STEPHEN J. WINDHORST HANS J. LIUEBERG JUDGES CHIEF DEPUTY CLERK SUSAN BUCHHOLZ FIRST DEPUTY CLERK FIFTH CIRCUIT 101 DERBIGNY STREET (70053) MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH Uniform Rules - Court of Appeal, Rule 2-20 THIS DAY MAY 14, 2014 TO THE TRIAL JUDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: /'1 13-CA-I004 E-NOTIFIED NO ATTORNEYS WERE ENOTIFIED MAILED BENJAMIN E. CLAYTON ATTORNEY AT LAW 200 COMMERCIAL SQUARE ROAD SUITE D SLIDELL, LA 70461 GLENN B. ADAMS LEANDRO R. AREA ATTORNEYS AT LAW 704 CARONDELET STREET NEW ORLEANS, LA 70130

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