Opinion
21-C-654
01-20-2022
CATHERINE YOUNG v. WINN-DIXIE MONTGOMERY, LLC D/B/A WINN-DIXIE STORE #1412, WINN-DIXIE STORES, INC. AND SOUTHEASTERN GROCERS, INC. IN RE WINN-DIXIE MONTGOMERY, LLC D/B/A WINN-DIXIE STORE #1412, WINN-DIXIE STORES, INC. AND SOUTHEASTERN GROCERS, INC.
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE FRANK A. BRINDISI, DIVISION "E", NUMBER 796-667
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and John J. Molaison, Jr.
WRIT DENIED
In this slip and fall case, defendants/relators, Winn-Dixie Montgomery, LLC d/b/a Winn-Dixie Store #1412, Winn-Dixie Stores, Inc., and Southeastern Grocers, Inc. ("Winn-Dixie"), seek this Court's supervisory review of the trial court's September 21, 2021 judgment which denied their motion for summary judgment. For the following reasons, on the showing made, we deny the writ application.
FACTS AND PROCEDURAL BACKGROUND
On June 26, 2019, plaintiff/respondent, Catherine Young, filed a petition for damages against Winn-Dixie, alleging that on or about May 16, 2019, she was shopping at the Winn-Dixie store on Williams Blvd. in Kenner, Louisiana, proceeding down the aisle where the Coca-Cola products were situated, when suddenly and without warning, she slipped "on a puddle of water on the floor," causing her to violently fall onto the ground, resulting in her receiving "serious injuries." The petition asserted liability of Winn-Dixie unto plaintiff pursuant to La. C.C. arts. 2316, 2317, 2317.1, and 2320 and/or La. R.S. 9:2800.6.
In due course, Winn-Dixie filed a motion for summary judgment, asserting therein that "there is no genuine issue of material fact as to plaintiffs claims against defendants and that defendants are entitled to summary judgment on liability in its favor as a matter of law because plaintiff cannot carry her burden," and that plaintiff cannot prove that Winn-Dixie "had actual or constructive notice of the alleged condition." Plaintiff filed an opposition to the motion for summary judgment. A hearing on the motion for summary judgment was held on August 23, 2021. After taking the matter under advisement, the trial court rendered judgment on September 21, 2021, denying the motion for summary judgment. On October 19, 2021, the trial court provided the following written reasons for denying Winn-Dixie's motion for summary judgment:
Material issues of fact which preclude summary judgment include the source of the substance on the floor on which plaintiff alleges she slipped. Winn-Dixie contends the source of the liquid was a soft drink bottle spilling its contents while plaintiff contends it was water coming from plumbing fixtures within a common wall. The placement of Zorba strips lends credence to plaintiff's contention that an existing plumbing leak is the source of the substance on the floor. This presents an issue of fact which is properly resolved by a jury, not the court on this motion. The Zorba strips are typically used for known leaks, not spills. Steve Stephens, a manager for Winn-Dixie, testified regarding the Zorba strip that he did not know why the Zorba strip was in place at the site of the slip and fall nor did he know when it was put there. Regardless of the substance's source, an issue of fact exists as to the period of time the spill was present and whether it was sufficient to impute constructive knowledge of the spill to Winn-Dixie or, indeed, if plaintiff can show actual knowledge. Either way it is an issue of fact for trial, not summary judgment. Steve Stephens testified he was working on that aisle that day but did not notice any substance on the floor. It is a role of the jury to determine the facts relative to whether he or another employee should have noticed the spill and taken corrective measures.
Applicable to this case are La. R.S. 9:2800.6 and the voluminous cases applying this statute. On summary judgment the court does not consider the substantive merits of the case nor the credibility of any witnesses. Accordingly, after considering the law and facts presented with this motion, the court denied the summary judgment.
Winn-Dixie's writ application to this Court followed. In its writ application, Winn-Dixie argues that the trial court erred in failing to grant its motion for summary judgment where plaintiff offered no evidence that Winn-Dixie had notice of the condition as required by the Louisiana Merchant Statute, La. R.S. 9:2800.6.
LAW AND ANALYSIS
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. C.C.P. art. 966(A)(3). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. King v. Illinois Nat. Ins. Co., 08-1491 (La. 4/3/09), 9 So.3d 780, 784.
The burden of proof rests with the mover. 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. C.C.P. art. 966(D)(1).
It is not the function of the trial court on summary judgment to consider the merits of the case nor the credibility of witnesses. Dugas v. Theriot, 12-993 (La.App. 3 Cir. 6/19/13), 116 So.3d 1022, 1028.
Appellate courts review summary judgments de novo using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. A de novo review or an appeal de novo is an appeal in which the appellate court uses the trial court's record, but reviews the evidence and law without deference to the trial court's rulings. Wooley v. Lucksinger, 06-1140 (La.App. 1 Cir. 12/30/08), 14 So.3d 311, 352; Sarasino v. State through Department of Public Safety and Corrections, 16-408 (La.App. 5 Cir. 3/15/17), 215 So.3d 923, 927. 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.
The substantive law applicable to this case is codified in La. R.S. 9:2800.6, entitled "Burden of Proof in Claims Against Merchants." It reads:
A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors 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.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, 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 should have known, of the condition.
(2) "Merchant" means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.
To carry the burden of proving the constructive notice or temporal element, a plaintiff must present positive evidence of the existence of the condition prior to the accident. Luft v. Winn Dixie Montgomery, LLC, 16-559 (La.App. 5 Cir. 2/8/17), 228 So.3d 1269, 1273. Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite of showing some time period. Id. A claimant who simply shows that the condition existed without an additional showing that the condition existed some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Id. Though the time period need not be specific in minutes or hours, constructive notice requires the claimant prove the condition existed for some time period prior to the fall. Id.
In its writ application, Winn-Dixie argues that plaintiff has failed to establish the temporal element required under La. R.S. 9:2800.6. Upon de novo review of the writ application and all of the attachments thereto, the opposition to the writ application, and the reply to the opposition, on the showing made, we find no error in the trial court's denial of Winn-Dixie's motion for summary judgment at this time. Specifically, we find that plaintiff has established that the condition (substance on the floor of the aisle she was traversing) existed for a period of time prior to her accident. Whether that period of time was sufficiently lengthy that Winn-Dixie knew of the condition or should have discovered the condition prior to plaintiff's slip and fall is necessarily a fact question to be determined by the trier of fact, based on the particular facts and circumstances of this case. Further, genuine issues as to material fact remain at this time, including who placed the "Zorba" strip on the floor in the area where plaintiff slipped and fell, exactly why the "Zorba" strip was placed on the floor, the source of the spill, and the amount of time the spill in question was present. Thus, on the showing made, Winn-Dixie has failed to show that it is entitled to judgment as a matter of law at this time. This writ application is accordingly denied.
Winn-Dixie argues that the facts in this case are "virtually identical" to the facts in Taylor v. Winn-Dixie Montgomery, LLC, 11-1161 (La.App. 4 Cir. 9/30/11). However, in that case, the excerpt provided by Winn-Dixie shows that surveillance footage definitively established that the substance was on the floor less than two minutes before Mrs. Taylor slipped. In the instant case, the Court does not have benefit of surveillance footage and thus the Taylor case differs markedly from this case, and provides no guidance. Further, we note that the appellate court's ruling in Taylor is an unpublished writ disposition, which therefore prevents this Court from conducting a thorough analysis of that case.
JGG
FHW
JJM