James E. Ramer, Jr. VS Evangeline Maid Bakery d/b/a Flowers Baking Company of Lafayette, LLC
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STATE OF LOUISlANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 1583 JAMES E RAMER JR VERSUS G EV ANGELINE MAID BAKERY D FLOWERS A B BAKING COMPANY OF LAFAYETTE LLC y Judgment Rendered X APR 2 6 2013 iF k x k Appealed from the 16th Judicial District Court In and for the Parish of St Mary State of Louisiana Case No 122803 The Honorable Paul deMahy Judge Presiding x k k X kac Thomas J DeJean Opelousas Louisiana Kenneth H Laborde Brendan P Matthew F Tew 1 Doherly Morgan Orleans Louisiana Counsel for Plaintiff Appellant James E Ramer Jr Counsel for Defendant Appellee Evangeline Maid Bakery d a b Flowers Baking Company of Lafayette LLC BEFORE GUIDRY CRAIN AND THERIOT JJ Lu r L u THERIOT J In this slip and fall case the plaintiff appeals a summary judgment dismissing his suit For the reasons set forth below we affirm FACTS AND PROCEURAL HISTORY James E Ramer Jr was employed by SNL Distribution Services Corporation as a bread delivery driver On January 29 2010 Mr Ramer was unloading a truckload of bread inside Evangeline Maid Bakery d a b Flowers Baking Company of Lafayette LLC Flowers warehouse in s Morgan City when he slipped in a puddle on the warehouse floor and fell onto the floor Mr Ramer filed a petition for damages against Flowers alleging that Flowers was liable for his injuries because they knew or should have known of the unsafe and hazardous condition Flowers filed a third party demand against Bayou Estate Development Inc Bayou the owner of the warehouse leased by Flowers in which Mr Ramer fell and Mr Ramer then amended his petition to make Bayou a defendant as well Flowers and Bayou collectively referred to hereafter as defendants filed motions for summary judgment on Mr Ramer claims which were s granted by the court and this appeal by Mr Ramer followed DISCUSSION A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant All Crane Rental of Georgia Inc v Vincent 10 p 4 1 Cir 9 47 So3d 1024 1027 writ 0116 App La 10 10 denied 10 La 11 49 So 387 2227 10 19 3d A motion for summary judgment should only be granted if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any 2 show that there is no genuine issue as to material fact and that the movant is entitled to summary judgment as a matter of law La C 966 PB The burden of proof on a motion for summary judgment remains with the movant However if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the movant burden on the motion does not require him to negate all s essential elements of the adverse party claim action or defense but rather s to point out to the court that there is an absence of factual support far one or more elements essential to the adverse party claim action or defense s Thereafter if the adverse party fails to produce factual support 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 La C art 966 P 2 C Once the motion for summary judgment has been properly supported by the moving party the failure of the non party to produce evidence of a moving material factual dispute mandates the granting of the motion Pugh v St Tammany Parish School Board 07 p 2 1 Cir 8 994 1856 La App 08 21 2d So 95 97 on rehearing writ denied 08 La ll 996 So 2316 21108 2d 1113 see also La C art 967 P B In determining whether summary judgment is appropriate appellate courts review evidence de novo under the same criteria that govern the trial s court determination of whether summary judgment is appropriate Sanders v Ashland Oil Inc 96 p 5 1 Cir 6 696 So 1031 1751 App La 97 20 2d 1035 writ denied 97 La 10131 703 So 29 Because it is the 1911 97 2d Louisiana Code of Civil Procedure article 967 provides B When a motion for summary judgment is made and supported as provided above an adverse party may not rest on the mere allegations or denials of his pleading but his response by affidavits or as otherwise provided above must set forth specific facts showing that there is a genuine issue for trial If he does not so respond swnmary judgment if appropriate shall be rendered against him 3 applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case Walker v Phi Beta Sigma Fraternity Rho Chapter 2345 La 96 p 6 1 Cir 12 706 Sa2d 525 528 App 97 29 We are responsible far the damage occasioned by things which we have in our custody La C art 2317 However the owner or custodian of a thing is only answerable for the damage caused by its ruin vice or defect upon a showing that he knew or in the exercise of reasonable care should have known of the ruin vice ar defect which caused the damage that the damage could have been prevented by the exercise of reasonabie care and that he failed to exercise such reasonable care La C art 1 2317 In their motions for summary judgment the defendants pointed out that Mr Ramer had no factual support for an essential element of his claim e ithat the defendants knew or should have known of the condition which caused the damage In support of the motion the defendants offered Mr s Ramer deposition testimony as well as the deposition testimony of Fred Newby Flowers warehouseman and Norman Williams Flowers sales manager Mr Ramer testified that he had never seen water on the warehouse floor before his accident Mr Newby who is at the warehouse daily and is responsible for cleaning up the warehouse testified that he had never seen water on the floor anywhere in the warehouse nor had he ever observed any leaks in the warehouse roo Mr Williams testified that he goes to the warehouse approximately five times per week to ensure that the warehouse is clean and he has never seen water in the area where Mr Ramer fell He also testified that he has never heard of anyone slipping and falling anywhere in the warehouse Flowers also filed a drawing of the 4 accident scene made by Mr Ramer during his deposition which showed the location of Mr Ramer sfall within the warehouse In opposition to the motion for summary judgment Mr Ramer filed his deposition and affidavit as well as the depositions of Mr Newby and Mr Williams and an affidavit by Warren Prudhomme Mr Ramer testified in his deposition that after he fell he looked up and noticed daylight coming in through the ceiling but was unsure whether the opening was pinhole sized or larger Although he testified that he did not remember seeing any water dripping through the hole he thought that the puddle on the floar could possibly have come from that hole Mr Ramer also introduced Mr Williams deposition testimony that sometimes when it rains water drips on the floor right near the office or is blown in through an open door However according to Mr Williams testimony and the drawing of the accident scene the area where Mr Williams recalled seeing water in the past was not near the location of Mr Ramer fall s Mr Williams testified that he had never seen any water on the floor in the area where Mr Ramer fell Furthermore there was no testimony that it rained on or around the day of the accident Mr Ramer also offered the affidavit of Warren Prudhomme a contractor who inspected the warehouse roof over two years after the accident and noted that it appeared that the roof vents had been very recently painted and caulked to prevent leaks Defendants pointed out an absence of factual support for an essential element of Mr Ramer claim i that defendants knew or should have s e known of a dangerous condition and Mr Ramer offered no evidence in response to show that he could carry his burden of proof on that element of his claim Considering the evidence before the court summary judgment dismissing Mr Ramer claim is appropriate s 5 CONCLUSIOPI The summary judgment dismissing Mr Ramer claims against s Flowers and Bayou is affirmed Costs of this appeal are assessed to plaintiff James E Ramer Jr AFFIRMED 6 IRST CIRCUIT JAMES E RAMER JR COURT OF APPEAL VERSUS STATE OF LOUISIANA EVANGELINE MAID BAKERY DB A FLOWERS BAKING CO Y IPA1V OF 2012 CA 1583 LAFAYETTE LLC CRAIN J concurring in the result I concur in the result reached by the majority far the following reasons The plaintiff claims that vents in the building roof were defective because they contained openings that permitted water to enter the building during rain events Although the plaintiff presented evidence of these alleged defects he presented no evidence that it rained on or around the day of the accident Thus the plaintiff failed to establish that he would be able to meet his burden of proving at trial that the allegedly defective vents were a cause of the accident When fact in the undisputed facts disclose that the alleged defect is not the cause of the fact in injury to the plaintiff the trial court can decide this issue on summary judgment Coates v Nettles 563 So 2d 1257 1259 La App 1 Cir 1990 The plaintiffls alternative theory is that the puddle was caused by a third person such as another deliveryman That claim does not involve a defect in the premises but involves a defect on the premises and is subject to a duty risk analysis under Louisiana Civil Code article 2315 See Bridgefield Cas Ins Co v 0725 S E J Inc 09 La App 1 Cir 10 29 So 3d 570 573 09 23 The defendant owes a duty to its visitors to exercise reasonable care to keep the premises in a safe condition commensurate with the particular circumstances involved See Parfait v Hosp Serv Dist No 1 93 La App 1 Cir 1504 94 24 6 638 So 2d 1140 1142 Holden v Louisiana State Univ Med Ctr in Shreveport 29 La App 2 Cir 2690 So 2d 958 961 writ denied 268 97 28 62 1 0797 97 La 5 693 So 2d 730 In the absence of proof that the spill was 97 1 caused by the defendant own actions the duty to keep the premises in a safe s condition must be shown to have been breached by some proof of inadequate inspection procedures Holden 690 So 2d at 964 The undisputed facts establish daily inspections and sweeping of the warehouse The plaintiff failed to introduce evidence to prove either the source of the puddle or the length of time it had been on the floor Under these undisputed facts the plaintiff failed to prove that alternative inspection procedures would likely have prevented the accident 2
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