Judy N. Brown and John W. Brown VS Amar Oil Company d/b/a Swifty's Food Mart No. 15 and First Financial Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2011 CA 1631 JUDY N BROWN AND JOHN W BROWN V VERSUS AMAR OIL COMPANY DSWIFTY FOOD MART NO 15 A BS i AND FIRST FINANCIAL INSURANCE COMPANY 7udgment Rendered OV 0 8 201 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 561 016 Honorable William A Morvant Judge Catherine L Plauche III Frank Tomeny Baton Rouge LA Kevin P Landreneau Counsel for Plaintiffs Appeilants Judy N Brown and John W Brown Johanna R Landreneau Counsel for Defendants Appellees Amar Oil Co d Swifty Food a b s Baton Mart No 15 and First Financial Ins Co Rouge LA BEFORE PETTIGREW GAIDRY MCDONALD McCLENDON AND WELCH 7 q A f 1 G c C 7 H NT SS e as y McCLENDON 7 In this personal injury suit the plaintiffs appeal a summary judgment granted in favor of the defendants dismissing their claim for damages For reasons that follow we affirm FACTUAL AND PROCEDURAL HISTORY On November 9 2007 the plaintiffs Judy N Brown and John W Brown commenced these proceedings against the defendants Amar Oil Company d a b s Swifty Food Mart No 15 Swifty and its liability insurer First Financial Insurance s Company First Financial seeking damages for injuries sustained by them as a result of a fall by Ms Brown According to the allegations of the plaintiffs petition on November 11 2006 Ms Brown entered Swiftys for the purpose of purchasing a beverage when she tripped on a dangerous condition in the doorway of the entrance which caused her to fall and hit her head on some shelving resulting in her suffering head trauma and loss of consciousness It is undisputed that the dangerous condition alleged in the plaintiffs petition was a flipped floor mat up On September 17 2010 the defendants filed a motion for summary judgment claiming that the plaintiffs would be unable to meet their burden of proof under LSA S 2800 R 9 and therefore sought dismissai of the plaintiffs claims against them By 6 judgment signed on May 18 2011 the trial court granted the defendants motion for summary judgment and dismissed the plaintiffs claims It is from this judgment that the plaintiffs now appeal APPLICABLE LAW Summary judgment is appropriate only if the pleadings depositions answers to interrogatories and admissions on file together with any affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law 836 P C LSA art 9666 Collins v Randali 02 La 1 Cir 12 0209 App 02 20 2d So 352 354 In determining whether summary judgment is appropriate appellate courts conduct a de novo review of the evidence employing the same criteria that govern the trial court determination of whether summary judgment is s appropriate Sanders v Ashland Oil Inc 96 La 1 Cir 6 696 1751 App 97 20 2 2d So 1031 1035 writ denied 97 La 10 703 So 29 1911 97 31 2d The initial burden of proof is on the moving party However if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the mover burden on the motion does not require him s to negate all essential elements of the adverse party claim action or defense but s rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party claim action or defense Thereafter if s the adverse parry fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material fact LSA art 966C It is oniy after the motion has been made and P C 2 properly supported that the burden shifts to the moving non parry Pugh v St Tammany Parish School Bd 07 La 1 Cir 8 994 So 95 98 1856 App 08 21 2d writ denied 08 La 11 996 So 1113 2316 08 21 2d A genuine issue is a triable issue More precisely an issue is genuine if reasonable persons could disagree If on the state of the evidence reasonable persons could reach only one conclusion there is no need for a trial on that issue In determining whether an issue is genuine courts cannot consider the merits make credibility determinations evaluate testimony or weigh evidence Smith v Our Lady of the Lake Hosp Inc 93 La 7 639 So 730 751 A fact is material 2512 94 5 2d when its existence or non may be essential to the plaintiff cause of action existence s under the applicable theory of recovery Facts are materiai if they potentially insure or preclude recovery affect a IitiganYs ultimate success or determine the outcome of the legal dispute King v Illinois Nat Ins Co 08 La 4 9 So 780 784 1491 09 3 3d Because it is the applicable substantive law that determines materialiry whether a particular fact in dispute is material can be seen only in light of substantive law applicable to the case Hall v Our Lady of the Lake R 06 La 1 Cir C M 1425 App 07 20 6 968 So 179 185 2d The applicable substantive law in this case is set forth in LSA 9 S 6 R 2800 which provides in pertinent part A A Merchant owes a duty to persons who use his premises to 3 exercise reasonable care to keep his aisles passageways and floors in a reasonably safe condition This duty includes a reasonabie 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 premises for damages as a result of an injury s death or loss sustained because of a fall due to a condition existing in or on a merchant premises the claimant shall have the burden of proving s 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 shouid have known of the condition DISCUSSION The plaintiffs have the burden of proving that the floor mat where Ms Brown tripped presented an unreasonable risk of harm to her that the risk of harm was reasonably foreseeable that Swifty either created or had actual or constructive notice s of the condition prior to the occurrence and that Swifty sfailed to exercise reasonable care to eliminate the condition The plaintiffs contend that the trial court erred in finding that they could not show that Swifty had constructive notice of the unsafe s condition of the floor mat They further claim that the trial court erred in finding that the flipped up mat did not create an unreasonable risk of harm Finally the plaintiffs contend that the trial court erred in not finding that the unsafe condition caused Ms Brown to fall The defendants maintain however that summary judgment was appropriate as there were no genuine issues of material fact In support of their motion for summary judgment the defendants offered excerpts of the deposition testimony of Ms Brown excerpts of the deposition testimony 4 of Brandon Amar the designated representative of Swifty and their answers to the s s plaintiff interrogatories According to the excerpts of Ms Brown deposition she s could not recall any detaiis regarding her entry into and fall at Swifty She stated that s all she could remember was that she walked into the store s caught her omething foot she couldn balance or catch herself and she fell According to the excerpts of t the deposition of Mr Amar Cintas maintains their rugs weekly and Swifly has had s no incidents of patrons slipping or falling because of a rug in the store Additionally he stated that Swifty did not have any documentation or checklist concerning the s frequency that the interior of Swifly is supposed to be inspected swept or mopped s In their answers to the plaintiffs interrogatories the defendants identified the only witness to the incident stated that there was a surveillance video of the incident in the custody of Mr Amar and stated that an accident report was prepared shortly after the accident manner Additionally they described the accident as occurring in the following On November 11 2006 around 11 am a customer exiting the store 20 inadvertently turned over the corner of a mat at the front of the store According to the surveillance video at 11 am Ms Brown entered the store tripped on her own feet 23 or stepped on the turned mat and apparently fell forward up Additionally the defendants stated that the accident appear to be caused by the plaintiff either ed tripping herself or stepping on the mat and then tripping on the edge of the mat The plaintiffs offered no evidence in opposition to the motion for summary judgment After conducting a de novo review of the evidence submitted in support of the motion for summary judgment we conclude that the defendants showed that there was an absence of support for essential elements of the plaintiffs claim including that the flipped up mat had existed for such a period of time that it would have been discovered Also in support of their motion for summary judgment the defendants relied on the defendants responses to the plaintiffs request for production of documents including a copy of the store surveillance video of the incident Competent summary judgment evidence includes the pleadings depositions answers to interrogatories admissions on file and affidavits P C LSA art 9668 We note that at the beginning of the hearing on the motion for summary judgment counsel for Swifty submitted the s motions memorandum and attached exhibits into the record as exhibits on this motion without apparent objection and the trial murt allowed their introduction Having been offered and introduced into evidence without objection we find no error in the trial court consideration of this evidence Cf s Sheffie v Wal Louisiana LLC 11 La 5 Cir 5 92 So 625 holding that a Mart 1038 App 12 31 3d surveillance video that was not offered and introduced into evidence on a motion for summary judgment could not be considered Nonetheless even without the video our decision would remain the same 5 if Swifty had exercised reasonable care In the absence of any evidence presented by s the plaintiffs as to the location of any Swifty employee prior to the accident or s whether a Swifly employee had an opportunity to see the flipped up mat before Ms s Brown entered the store the plaintiffs failed to show that Swifty had constructive s notice of the condition Moreover even if an employee was in the area the presence of an employee in the vicinity in which the condition exists does not alone constitute constructive notice S R LSA 1 6C 2800 9 Additionally in the absence of any evidence by the plaintiffs the plaintiffs did not show that Swifty failed to exercise s reasonable care in this matter Not only was no evidence presented to show that a s Swifly employee was present in the area of the floor mat but no evidence was presented to show that if an employee was in the area of the floor mat the employee knew or in the exercise of reasonable care should have known of the condition The plaintiffs failed to establish that they would be able to satisfy their evidentiary burden of proof at trial Accordingly summary judgment in favor of Swifty s and First Financial was appropriate CONCLUSION For the above and foregoing reasons the May 18 2011 judgment of the trial court is affirmed All costs of this appeal are assessed to the plaintiffs Judy N Brown and John W Brown AFFIRM ED 2 Having found that the plaintiffs failed to establish that Swifty shad actual or constructive notice of the condition we need not address the plaintiffs argument that the turned up floor mat created an unreasonable risk of harm 6 JUDY N BROWN AND NUMBER 2011 CA 1631 70HN W BROWN FIRST CIRCUIT VERSUS AMAR OIL COMPANY DB A COURT OF APPEAL SFOOD MART NO 15 SWIFTY AND FIRST FINANCIAL INSLJRANCE COMPANY STATE OF LOUISIANA WELCH 7 dissenting I respectfully dissent I find that summary judgment was inappropriate because the defendants did not establish the absence of factual support for any specific element of the plaintiffs claims and therefore the burden did not shift to the plaintiffs to provide factual evidence sufficient to establish that they will be able to satisfy their evidentiary burden at trial The burden of proof on the motion for summary judgment shifts to the non moving party only after the motion has been properly supported by the mover Pugh v St Tammany Parish School Board 2007 La App 1 Cir 1856 08 21 8 994 So 95 98 writ denied 2008 La 11 996 So 2d 2316 08 21 2d 1113 I disagree with the majority conclusion that the defendants showed that s there was an absence of factual support on the issue of constructive notice It is well settled that there is no bright line time period for demonstrating that the condition existed far a period of time that it would have been discovered if the merchant had exercised reasonable care White v Wal Stores Inc 97 Mart 0393 La 9 699 So 1081 1084 Although some time period must be 97 2d 85 shown whether the period of time is sufficiently lengthy that a merchant should 1 Although the supreme court in White interpreted the version of La R 9 prior to its S 2800 6 amendment by 1996 La Acts 1 Ex No 1 eff May 1 1996 the requirement in the Sess 8 statute that the plaintiff prove that the condition existed for such a period of time was not changed by the 1996 amendments Thus the analysis in White regarding the temporal element of LSA 9 equally applicable to the instant case See Williams v Shoney Inc S 6is R 2800 s 0607 99 La App l Cir 00 31 3764 2d So 1021 1024 n3 have discovered the condition is necessarily a question of fact Id The defendants offered evidence of the temporal element of the plaintiffs claim in its answers to the plaintiffs interrogatories by stating that approximately three minutes prior to 7udy Brown fall another patron exiting the store flipped over the floor mat s Whether this period of time was of sufficient length that Swifty through its s employees should have discovered the condition a question of fact it does not demonstrate that plaintiffs will be unable to satisfy their evidentiary burden at trial See Wheelock v Winn Inc 2001 La App l Cir 6 822 Dixie 1584 02 21 2d So 94 96 Thus I find that the defendants failed to properly point out the lack of factual support for the constructive notice element of the plaintiffs claim Furthermore with regard to the defendants contention that there is a lack of evidence establishing that Swifty failed to exercise reasonable care the record s before us contains no evidence with respect to this issue Again I must conclude that the defendants failed to properly point out the absence of factual support for this element of the plainriffs claim Lastly I find that summary judgment on the issue of whether the flipped up floor mat presented an unreasonable risk of harm was inappropriate It is well settled that whether a condition presents an unreasonable risk of harm to a claimant is a question of fact that must be resolved on a case basis again there is by no bright line rule See Reed v Wall Stores Inc 97 La 3 Mart 1174 98 4 708 So 362 364 In this case Judy Brown deposition testimony established 2d s I that something caught her foot that she lost her balance and that she fell In light of this testimony combined with the defendants statements in its answers to interrogataries that the floor mat in the doorway of Swifty shad been turned up by a previous customer and that Judy Brown stepped on the floor mat and fell a trier of fact could reasonably conclude that the flipped floor mat presented an up unreasonable risk of harm to store patrons such as the Judy Brown 2 Thus I conclude that the defendants failed to properly point out that the plaintiffs would be unable to establish this element of their claim Accordingly I would reverse the summary judgment and remand to the trial court for further proceedings 3
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