Annette Clark VS J-H-J, Inc. d/b/a Piggly Wiggly and Bunker Hill Underwriters Agency Inc.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT N0 2013 CA 0432 ANNETTE CLARK VERSUS O H J INC D B A PIGGLY WIGGLY AND n J BUNKER HILL UNDERWRITERS AGENCY INC h Jud 9 ment rendered Y NaV 0 1 2013 i i i APP ealed from the Il 19 Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 603 914 Honorable Timothy E Kelley Judge ANNE E WATSON ATTORNEY FOR LA OPELOUSAS APPELLANT PLAINTIFF ANNETTE D CLARK NICHOLAS J ZERINGUE ATTORNEYS FOR LA THIBODAUX APPELLEES DEFENDANTS H J INC D PIGGLY WIGGLY A B BUNKER HILL UNDERWRIfERS AGENCY INC BEFORE PETTIGREW McDONALD AND McCLENDON JJ PETTIGREW 7 Plaintiff Annette Clark a store patron who slipped and feil on a dark colored liquid substance allegedly sustaining injuries appeals a judgment that granted the motion for summary judgment of defendants J Inc d Piggly Wiggly and its H a b insurer Great Midwest Insurance Company hereinafter Piggly Wiggly and dismissed her suit with prejudice For the reasons that follow we afFirm FACTS AND PROCEDURAL HISTORY On August 12 2010 Ms Clark allegedly slipped on a liquid substance and fell near the check counter at the Piggly Wiggly in Baton Rouge Louisiana where she out regularly shopped for groceries Ms Clark who was alone at the time had been in the store for approximately fifteen to twenty minutes shopping and then proceeded to check out Ms Clark indicated she took about two or three steps away from the check out counter and her right foot went that way and she went down on her left knee Ms Clark sustained a broken knee cap which required surgery to repair On August 1 2011 Ms Clark filed suit against Piggly Wiggly for injuries allegedly sustained as a result of her fall On June 13 2012 Piggly Wiggly filed a motion for summary judgment alleging it was entitled to judgment as a matter of law as there was no genuine issue of material fact with respect to liability Piggly Wiggly argued that Ms Clark could not establish that it either created the hazardous condition or had actual or constructive notice of any such condition as required by La R 9 Following a hearing on the motion the S 2800 6 trial court agreed and rendered summary judgment in favor of Piggly Wiggly on December 20 2012 dismissing Ms Clark claims with prejudice From this judgment s Ms Clark appeals contending that the trial court erred in granting summary judgment in favor of Piggly Wiggly as there were genuine issues of material fad that I precluded same Although Bunker Hill Underwriters Agency Inc was originally named in Ms Clark petition for s damages Great Midwest Insurance Company was identified in Piggly Wiggly answer as its s insurer 2 SUMMARY JUDGMENT Summary judgment is subject to de novo review on appeal using the same standards applicable to the trial court determination of the issues s Berard v L 3 Communications Vertex Aerospace LLC 2009 p 5 App 1 Cir 1202 La 10 12 2 35 So 334 339 writ denied 2010 La 6 38 So 302 3d 340 0715 10 4 3d The summary judgment procedure is expressly favored in the law and is designed to secure the just speedy and inexpensive determination of non civil actions domestic La Code Civ P art 966 Its purpose is to pierce the pleadings and to assess the 2 A proof in order to see whether there is a genuine need for trial Hines v Garrett 0806 2004 p 7 6 876 So 764 769 Summary judgment is appropriate La 25 04 2d if the pleadings depositions answers to interrogatories admissions together with the affidavits if any 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 Code Civ P art 966 2 B On a motion for summary judgment the burden of proof is on the mover If however 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 s motion does not require that all essential elements of the adverse party claim action s or defense be negated Instead the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party s claim action or defense Thereafter the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial If the adverse party fails to meet this burden there is no genuine issue of material fact and the mover is entitled to summary judgment La Code Civ P art 966 Janney v Pearce 2009 p 5 App 1 Cir 5 40 So 2 C 2103 La 10 7 3d 285 288 writ denied 2010 La 9 45 So 1078 289 1356 10 24 3d In ruling on a motion for summary judgment the judge role is not to evaluate s the weight of the evidence or to determine the truth of the matter but instead to Z The summary judgment in this case was signed on December 20 2012 Thus it is governed by the version of Article 966 in effect after its amendment by 2012 La Acks No 257 1 determine whether there is a genuine issue of triable fact Hines 2004 at 1 876 0806 2d So at 765 Because the applicable substantive law determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case Daniels v USAgencies Cas Ins Co 2011 p 8 1357 La App 1 Cir 5 92 So 1049 1055 12 3 3d DISCUSSION Louisiana Revised Statutes 92800 sets forth the burden of proof for a plaintiff 6 in a claim against a merchant for damages due to a fall on the premises As amended by 1996 La Acts No 8 1 which amendments took effect May 1 1996 subsection B requires the plaintiff to prove that 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 To prove constructive notice the plaintiff must show that the substance remained on the floor for such a period of time that it would have been discovered if the merchant had exercised reasonable care La R 9 S 2800 1 C 6 In White v Wal Stores Inc 97 La 9 699 So 1081 the Mart 0393 97 2d Louisiana Supreme Court noted that the temporal element in a slip and fall claim requires ashowing by the plaintiff that the hazardous condition existed for positive some time prior to the fall The White court noted as follows There is a temporal element included such a period of time The statute does not allow for the inference of constructive notice absent some showing of this temporal element The claimant must make a positive showing of the existence of the condition prior to the fall A defendant merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall 3 Although the court in White interpreted the version of La R 9 in effect prior to the 1996 S 2800 6 amendments the requirement in the 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 La R 9 equally applicable to the instant case S 2800 6is 4 Notwithstanding that such would require proving a negative the statute simply does not provide for a shifting of the burden Though there is no bright line time period a claimant must show that the condition existed for such period of time is sufficiently Whether the period of time lengthy that a merchant should have a discovered the condition is necessarily a fact question however there remains the prerequisite showing of some time period A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute Though the time period need not be specific in minutes or hours constructive notice requires that the claimant prove the condition existed for some time period prior to the fall This is not an impossible burden White 97 at 4 699 So at 1084 footnote omitted 0393 5 2d 1085 In the instant case Ms Clark argues that she can satisfy her burden of proving that Piggly Wiggly had constructive notice of the existence of the substance on the floor before her fall simply by the mere presence of cashiers in the area where she fell She further directs the court attention to the accident report wherein a Piggly Wiggly s employee described the condition that caused the accident as It appears that another customer rolled in a basket with busted cokes dripping and Ms Clark fell in the path of that buggy Ms Clark asserts that if a Piggly Wiggly employee knew the cause of the spill it should have been cleaned up In essence Ms Clark contends there is a genuine issue as to whether the condition existed for a sufficient length of time before her fall during which Piggly Wiggly should have discovered the condition Although the initial burden of proof was on Piggly Wiggly it will not bear the burden of proof at trial on the issue of constructive notice As such Piggly Wiggly did not need to negate this element of Ms Clark claim s In order to shift the burden to Ms Clark Piggly Wiggly only had to point out that there was an absence of factual support for this element The burden then shifted to Ms Clark as the non moving party to produce factual support su to establish that she would be able to cient establish constructive notice at trial La Code Civ P art 966 Janney 2009 2 C 2103 at 5 40 So at 288 3d 289 As in White plaintiff herein presented no evidence whatsoever to show that the liquid was on the floor for any length of time to establish the temporal element set forth 5 I I in White Ms Clark could not establish constructive notice by Piggly Wiggly as she submitted no testimony or evidence establishing the length of time the spill remained on the floor anything She testified in her deposition that before she fell she did not see on the knew she floor slipped in Ms Clark was unable to say what she something slipped in only that she When asked if she had any idea how long that something had been on the floor before she fell she responded no In fact she candidly admitted that she had no evidence to show how long that substance was on the floor before she fell Ms Clark argues in brief that the facts of White are distinguishable from the case at hand Unlike the plaintiff in White Ms Clark points out that the liquid she fell in was brown not clear 4 Ms Clark also notes that when she fell she was in close proximity to at least two cashiers who had no impediments blocking their view of where she fell These contentions however are not dispositive of the issue of how long the liquid substance had been on the floor Even assuming arguendo that the substance had dripped from another customer basket no evidence was presented to suggest or s show that it was there long enough for Piggly Wiggly to discover the condition through reasonable care Indeed as the evidence in the record reveals store employees performed safety inspections every half hour including just prior to the time of Ms Clark alleged fall As indicated in an affidavit given by Brent McGough the store s manager on duty at the time of the incident Mr McGough stated that at 8 a and 30 m 00 m 9 a on the day of the incident he did a safety inspection of the area where Ms Clark fell and did not observe any hazards in the area The time of the accident was reported to be 9 a He further indicated that after Ms Clark fall he inspected the 00 m s floor where the incident occurred and he ran a paper towel over the area to clean the drops He did not feel that a mop was necessary as the spill was very minimal Applying the principles set forth in White we find that the evidence submitted by Ms Clark falls far short of the proof required to establish constructive notice We According to Ms Clark her daughters who are the ones who cleaned her pants after the accident told her the stain on her pants looked like Coke it was dark 6 find that Ms Clark failed to satisfy her burden of proving that the liquid had been on the floor for such a period of time that Piggly Wiggly should have discovered its existence White 97 at 7 699 So at 1086 D393 2d After careful review we find no error in the trial court conclusion that Piggly s Wiggly was entitled to judgment in its favor as a matter of law The record amply supports the trial court conclusion that Ms Clark failed to prove the temporal element s necessary to establish defendant had notice an essential element of Ms Clark claim s under La R 9 S 2800 6 Thus the trial court properly rendered summary judgment herein CONCLUSION For the above and foregoing reasons we affirm the December 20 2012 judgment of the trial court granting summary judgment in favor of defendants J H Inc d Piggly Wiggly and its insurer Great Midwest Insurance Company and a b dismissing with prejudice Annette Clark claims All costs associated with this appeal s are assessed against plaintiff Annette Clark appellant AFFIRMED 7
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