Louisiana Third Circuit Court of Appeal

Case Number: CW 17-566

Judge: Phyllis M. Keaty, Van H. Kyzar, and Candyce G. Perret

Court: STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

Plaintiff's Attorney: Philip Andre Fontenot
Hallie P. Coreil

Defendant's Attorney: Renee Yvette Roy
Cory Paul Roy
Brandon J. Scott
Benjamin D. James

Description: Bobby Moses (“Respondent”) alleges that he slipped and fell in the Mansura,
Louisiana, Wal-Mart on October 21, 2015. In its reasons for ruling, the trial court
summarized the facts as follows:
The parties agree, as per video surveillance evidence, at approximately 9:57 a.m., an unidentified companion of plaintiff is seen holding a Subway cup and turns down the condiment aisle. At approximately 9:59:22[,] this unidentified companion of plaintiff exits the condiment aisle on the other end without the Subway cup. Plaintiff enters the condiment aisle at approximately 10:00 a.m. and slips in the area of the spilled Subway soda. It appears that these facts are not in dispute.

Respondent subsequently filed suit against Wal-Mart. Wal-Mart filed a motion
for summary judgment alleging that Respondent could not meet his burden of proof
regarding Wal-Mart‟s actual or constructive notice of the spill. In support of its
motion, Wal-Mart submitted Respondent‟s deposition with two still photographs from
the surveillance video, the incident report, a picture of the spilled cup attached as
exhibits to the deposition; Wal-Mart‟s asset protection manager‟s affidavit, with the
surveillance video itself as an exhibit to the affidavit; and three time-stamped still
photographs from the surveillance video.
In opposition, Respondent argued that he had “met his burden of providing
circumstantial factual support for all elements of his claim” and that there existed a
genuine issue of material fact “as to whether the period of time that the cup at issue
2
lay on the floor of Wal-Mart‟s store was sufficiently lengthy” to constitute
constructive notice. Respondent did not introduce any evidence to support his claim.
The matter was heard and taken under advisement. On May 5, 2017, the trial
court issued written reasons for ruling and denied summary judgment finding “that a
genuine issue of material fact exists as to whether Wal-Mart, in the exercise of
reasonable care and in accordance with its own internal policies and procedures,
would have had constructive notice of the presence of the Subway cup on the floor of
its store.”
Wal-Mart timely sought supervisory writs, which this court granted in
accordance with La.Code Civ.P. art. 966(H) and this court‟s Internal Rule 30.
LAW AND DISCUSSION
The disposition of a motion for summary judgment is reviewed de novo, “under
the same criteria governing the trial court‟s consideration of whether summary
judgment is appropriate.” Brown v. Diagnostic Imaging Servs., Inc., 15-207, p. 3
(La.App. 4 Cir. 8/12/15), 173 So.3d 1168, 1169 (citations omitted). “After an
opportunity for adequate discovery, a motion for summary judgment shall be granted
if the motion, memorandum, and supporting documents 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(A)(3). The mover bears the initial burden of proof; but the
burden shifts as follows:
Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover‟s burden on the motion does not require him to negate all essential elements of the adverse party‟s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party‟s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La.Code Civ.P. art. 966(D)(1).
3
To succeed in a negligence claim against a merchant, La.R.S. 9:2800.6 requires
a plaintiff 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[1] 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.

Wal-Mart‟s first assignment of error is that the trial court erred in determining
the spill existed for a legally sufficient period of time to impose constructive notice on
Wal-Mart, despite the Louisiana Supreme Court‟s opinion in the factually similar
case, Guillot v. Dolgencorp, L.L.C., 13-2953 (La. 3/21/14), 135 So.3d 1177. In
Guillot, the supreme court reversed the lower courts‟ rulings, and granted summary
judgment to defendant for the reasons in Chief Judge Thibodeaux‟s appellate dissent.
Chief Judge Thibodeaux‟s dissent opined:
I conclude Mr. Guillot failed to prove that Dolgencorp had constructive notice of the allegedly hazardous McDonald‟s cup. Absent Ms. Ragsdale‟s deposition testimony, the only evidence in the record regarding the temporal element is the video surveillance indicating the cup was on the floor for roughly two minutes prior to Mr. Guillot‟s accident. Unlike Broussard [v. Wal-Mart Stores, Inc., 98-813 (La.App. 3 Cir. 1/20/99), 741 So.2d 65], even if the cup was full of water as stated in Mr. Guillot‟s testimony, there is no evidence as to the size, state, and scope of a spill that would indicate the cup was there for any more time than the two minutes in the video. While I recognize this was a busy time of year given the Easter season, two minutes, without more, is not a “sufficiently lengthy” time to put a merchant on notice of hazardous conditions. To hold otherwise is unreasonable because it forces a merchant to constantly monitor the physical state of his place of business rather than engage in the primary goal of selling goods. 1 “Constructive notice” requires Respondent prove “the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.” La.R.S. 9:2800.6(C)(1).
4
Guillot v. Dolgencorp, LLC, 13-587, pp. 1-2 (La.App. 3 Cir. 11/27/13), 127 So.3d
124, 131, writ granted, 13-2953 (La. 3/21/14), 135 So.3d 1177 (emphasis added).
Additionally, in Richard v. Liberty Mutual Insurance Co., 13-26, pp. 6-7
(La.App. 3 Cir. 10/9/13), 123 So.3d 345, 349 (emphasis in original)(citations
omitted), this court recognized that “„whether the time period is sufficiently lengthy . .
. is [] a fact question,‟” and upheld the trial court‟s grant of summary judgment
finding that the plaintiff “offered no factual support that the condition which caused
her to fall existed for such a „period of time that it would have been discovered if the
merchant had exercised reasonable care.‟”
Respondent raises only one disputed “material fact” in his opposition: whether
the spill existed for a sufficiently lengthy time that Wal-Mart had constructive notice
of the spill. “When constructive notice is at issue, the claimant must come forward
with positive evidence showing that the damage causing condition existed for some
period of time, and that such time was sufficient to place the merchant on notice of its
existence.” Hazelett v. Louisiana-1 Gaming, 16-297, p. 5 (La.App. 5 Cir. 12/21/16),
210 So.3d 447, 452 (emphasis added). Respondent did not offer positive evidence
that the spill existed for such a period of time that Wal-Mart, in exercising reasonable
care, would have discovered it.
Instead, the facts show the spill existed for approximately one minute before
Respondent‟s fall, and that no Wal-Mart employee went down that aisle during that
time. The surveillance video shows that Respondent‟s unidentified companion exited
the aisle at 9:59:22 a.m. and that Respondent entered the same aisle at 10:00 a.m.
Also, in his deposition, Respondent testified that there was ice on the floor when he
fell. The surveillance video does not show any Wal-Mart employee entering that aisle
between the time the unknown person left the Subway cup on the floor and the time of
the accident. Respondent presented no evidence or testimony to the contrary.
Applying the Guillot dissent, “without more,” we conclude the spill did not exist for a
5
“sufficiently lengthy” time to impose constructive notice on Wal-Mart. Guillot, 127
So.3d at 131. Therefore we find that Respondent failed to prove he would meet his
evidentiary burden of proof at trial regarding Wal-Mart‟s constructive notice of the
spill. This failure results in a finding of no genuine issue of material fact. Richard,
123 So.3d 345.
In its second assignment of error, Wal-Mart asserts the trial court erred in
determining there was the possibility of factual issues regarding reasonable care.
Similarly, Wal-Mart‟s third assignment of error argues the trial court erred because it
ignored the undisputed video surveillance and, instead, bootstrapped evidence of Wal
Mart‟s policies from an unrelated case, into the record of this case.
Relying on Sheffie v. Wal-Mart Louisiana, LLC, 13-792 (La.App. 5 Cir.
2/26/14), 134 So.3d 80, writ denied, 14-881 (La. 6/20/14), 141 So.3d 813, the trial
court in the instant matter determined there was a possibility that Wal-Mart has
policies and procedures, which may require employees to look for hazards. The trial
court found this possibility created a genuine issue of material fact regarding whether
Wal-Mart, in exercising reasonable care in accordance with those policies and
procedures, would have had constructive notice of the spill. The trial court
distinguished Guillot because “this disputed fact, if proven, would constitute the
„without more‟ language . . . .”
In Sheffie, the plaintiff not only produced testimony regarding Wal-Mart‟s
policies and procedures, but the surveillance video showed five employees walk by
the hazardous area. Sheffie, 134 So.3d 80. In Tate v. Outback Steakhouse of Florida,
16-93, p. 7 (La.App. 1 Cir. 9/16/16), 203 So.3d 1075, 1079, the court affirmed
summary judgment and distinguished Sheffie stating: “In this case, Ms. Tate did not
present any evidence that anyone noticed or should have noticed, the presence of the
clear liquid substance on the floor at any time prior to her fall.” As in Tate,
Respondent in this case did not present any evidence of Wal-Mart‟s policies, or any
evidence that a Wal-Mart employee should have noticed the spill before Respondent‟s
fall.

Outcome: For the foregoing reasons and based on the uncontroverted video surveillance
evidence of the amount of time that the spill was on the floor before Respondent‟s alleged fall, the Louisiana Supreme Court‟s pronouncement in Guillot, 135 So.3d 1177, and this court‟s ruling in Richard, 123 So.3d 345, we grant the motion for summary judgment filed by Wal-Mart. The trial court‟s judgment is reversed and Respondent‟s suit is dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

Comments: