Bridget S. Salzman Versus Matherne's Supermarket at Riverlands, L.L.C. & State Farm Fire & Casualty Company

Opinion

BRIDGET S. SALZMAN NO. 22-CA-404

VERSUS FIFTH CIRCUIT

MATHERNE'S SUPERMARKET AT COURT OF APPEAL RIVERLANDS, L.L.C. & STATE FARM FIRE & CASUALTY COMPANY STATE OF LOUISIANA

July 13, 2023

Linda Wiseman First Deputy Clerk

ON APPLICATION FOR REHEARING

Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and John J. Molaison, Jr.

REHEARING DENIED WITH REASONS

FHW JGG JJM

BRIDGET S. SALZMAN NO. 22-CA-404 VERSUS MATHERNE'S SUPERMARKET AT FIFTH CIRCUIT RIVERLANDS, L.L.C. & STATE FARM FIRE & CASUALTY COMPANY COURT OF APPEAL

STATE OF LOUISIANA

REHEARING DENIED

Upon review, we find that all of the arguments made in appellees’

application for rehearing either are without merit or were fully addressed in our opinion rendered on June 22, 2023. In rendering our opinion, we stated the question on review to be simply whether Ms. Salzman presented sufficient evidence to establish the existence of a genuine issue of material fact as to whether Matherne’s Supermarket “created” the condition that caused Ms. Salzman’s alleged injuries as contemplated under La. R.S. 9:2800.6(B)(2).

Consistent with the approach taken by the Louisiana Third and Fourth Circuit Courts of Appeal in Savoie v. Sw. La. Hosp. Ass’n, 03-982 (La. App. 3 Cir. 2/25/04), 866 So.2d 1078, and Davis v. Cheema, 03-982 (La. App. 4 Cir. 5/22/16), 171 So.3d 984, respectively, and the United States Fifth Circuit Court of Appeals in Deshotel v. Wal-mart La., L.L.C., 850 F.3d 742 (5th Cir. 2017), we opined that a plaintiff may prove that a merchantdefendant “created” an unreasonably dangerous condition in one of two ways: either by proving that the merchant itself directly created the condition or by proving that the merchant was responsible for maintaining the area where the hazardous condition manifested.

In our opinion, we found only that, considering the specific factual circumstances in the case before us, the evidence is sufficient to establish the existence of a genuine issue of material fact as to whether the merchantdefendant created the condition that caused Ms. Salzman’s fall. In our opinion, we stated, “As the court in Deshotel stated, our holding ‘only permit[s] a jury to find [Matherne’s Supermarket] create the hazard; we make no such finding ourselves.’” We further found that “[c]onsidering there is evidence sufficient to establish a genuine issue of material fact exists relating to whether Matherne’s Supermarket created the injury-causing condition in this case, we find summary judgment at this stage of the proceedings is inappropriate.” This application for rehearing is accordingly denied.

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ

FREDERICKA H. WICKER CHIEF DEPUTY CLERK

JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK

JOHN J. MOLAISON, JR. CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT MELISSA C. LEDET

JUDGES 101 DERBIGNY STREET (70053)

DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX

www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 07/13/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-CA-404

E-NOTIFIED 40th District Court (Clerk) Honorable J. Sterling Snowdy (District Judge) Delaney P. Shea (Appellant) William E. Mura, Jr. (Appellant) Leonard M. D'Angelo (Appellee)

MAILED Warren A. Forstall, Jr. (Appellant) Troy G. Broussard (Appellant) Attorney at Law Attorney at Law 320 North Carrollton Avenue 701 Papworth Avenue Suite 200 Suite 210 New Orleans, LA 70119 Metairie, LA 70005