Bertaut v. Corral Gulfsouth, Inc.

209 So. 3d 352, 2016 La. App. LEXIS 2332
CourtLouisiana Court of Appeal
DecidedDecember 21, 2016
DocketNO. 16-CA-93
StatusPublished
Cited by11 cases

This text of 209 So. 3d 352 (Bertaut v. Corral Gulfsouth, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bertaut v. Corral Gulfsouth, Inc., 209 So. 3d 352, 2016 La. App. LEXIS 2332 (La. Ct. App. 2016).

Opinions

WINDHORST, J.

| Appellant, Marion Bertaut, appeals from the trial court’s judgment granting appellees’, Corral Gulfsouth, Inc. and James River Insurance Co.’s (“Corral”), motion for summary judgment. For the reasons that follow, we affirm.

On September 24, 2013, Mrs. Bertaut was a guest patron at the Golden Corral restaurant located at 3920 Williams Blvd. in Kenner. While walking to her table with her food, Mrs. Bertaut fell. Mrs. Bertaut filed a petition for damages against Corral on November 27, 2013, contending that she slipped in a “puddle of water,” and as a result she sustained injuries.

Corral answered Mrs. Bertaut’s petition on January 27, 2014. On September 21, 2015, Corral filed its motion for summary judgment arguing Mrs. Bertaut could not prove that the condition complained of presented an unreasonable risk of harm. Corral contended that under La. R.S. 9:2800.6, wet or slick floors marked by warning signage did not constitute an unreasonably dangerous condition. Corral argued that a two to three foot tall bright yellow warning cone was placed in the area prior to Mrs. [355]*355Bertaut’s fall. Corral argued the surveillance video clearly showed that Mrs. Ber-taut passed close by the warning cone and over the exact location of the eventual fall multiple times prior to the fall. Thus, the warning cone was immediately apparent and obvious to any person entering the area, and to any person passing the area multiple times, including Mrs. Bertaut in this case.1

Mrs. Bertaut filed an opposition arguing there were genuine issues of material fact. She contended that Corral’s argument was circular relative to the defect in the premises, claiming on the one hand that Corral had put out a cone to warn of the condition, which it argued made the condition open and obvious, but Corral never admitted that there was a dangerous condition that required any 12warnings. Mrs. Bertaut argued that genuine issues of fact remained concerning whether the condition was open and obvious, whether Corral had a duty to warn of the condition, whether Corral assumed a duty to warn about the condition by placing a single cone in the area of the hazard, and whether Corral properly discharged its duty to warn Mrs. Bertaut of the dangerous condition.2

On November 5, 2015, the trial court granted Corral’s motion for summary judgment with reasons, and dismissed plaintiffs claims with prejudice. This appeal followed.

Discussion

In this appeal Mrs. Bertaut contends the trial court erred in granting Corral’s motion for summary judgment. She argues the trial court erred as a matter of law by applying the doctrine of open and obvious to Corral’s placement of a warning cone, instead of to the allegedly hazardous condition itself, ie., the puddle of water. She also contends Corral failed to prove an absence of genuine issues of material fact as to whether the condition that caused her to fall and sustain an injury was open and obvious. She further contends Corral failed to exercise reasonable care in the placement of the warning cone.

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544, 547; Rayfield v. Millet Motel, 15-496 (La.App. 5 Cir. 1/27/16), 185 So.3d 183, 185; Bailey v. Exxon Mobil Corp., 15-225 (La.App. 5 Cir. 12/23/15), 184 So.3d 191, 198. A motion for summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with |athe affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. Art. 966B(2). The party moving for summary judgment bears the burden of proof. However, if the movant will not bear the burden of proof at trial, the movant’s burden on a motion for summary judgment does not require him to negate all essential elements of the [356]*356adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. Art. 966C(2).

La. R.S. 9:2800.6 provides:

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 othr er 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 exercisé 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.

Therefore, in a slip and fall case against a merchant, a plaintiff must prove the essential elements of a standard negligence claim in addition to the requirements under La. R.S. 9:2800.6. Burns v. Sedgwick Claims Mgmt. Servs., 14-421 (La.App. 5 Cir. 11/25/14), 165 So.3d 147, 152; Sheffie v. Wal-Mart Louisiana LLC, 13-792 (La.App. 5 Cir. 2/26/14), 134 So.3d 80, 83-84, writ denied, 14-0881 (La. 6/20/14), 141 So.3d 813. The failure to prove any of the requirements enumerated in La. R.S. 9:2800.6 is fatal to plaintiffs cause of action. Upton v. Rouse’s Enter., LLC, 15-484 (La.App. 5 Cir. 2/24/16), 186 So.3d 1195, 1199, writ denied, 16-0580 (La. 5/13/16), 191 So.3d 1057. The merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall. White v. Wal-Mart Stores, Inc., 97-393 (La. 9/9/97), 699 So.2d 1081, 1086. There is no provision in La. R.S. 9:2800.6 that permits a shifting of the burden to the merchant. Id.

To determine whether a condition is unreasonably dangerous, courts are required to consider the following factors in the risk-utility test: (1) the utility of the complained of condition, (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition, (3) the cost to prevent the harm, and (4) the nature of the plaintiffs activities in terms of social utility or whether the activities were dangerous by nature. Bufkin v. Felipe’s La., LLC, 14-288 (La. 10/15/14), 171 So.3d 851, 856.

The second prong of the risk-utility test focuses on whether the allegedly dangerous or defective condition was obvious and apparent.

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209 So. 3d 352, 2016 La. App. LEXIS 2332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bertaut-v-corral-gulfsouth-inc-lactapp-2016.