Broussard v. Retail Investors of Texas, Ltd.

123 So. 3d 912, 13 La.App. 3 Cir. 414, 2013 WL 5539194, 2013 La. App. LEXIS 2065
CourtLouisiana Court of Appeal
DecidedOctober 9, 2013
DocketNo. 13-414
StatusPublished
Cited by7 cases

This text of 123 So. 3d 912 (Broussard v. Retail Investors of Texas, Ltd.) 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
Broussard v. Retail Investors of Texas, Ltd., 123 So. 3d 912, 13 La.App. 3 Cir. 414, 2013 WL 5539194, 2013 La. App. LEXIS 2065 (La. Ct. App. 2013).

Opinion

SAUNDERS, Judge.

| ¶ This is a trip and fall case in which a grocery store patron fell near an employee who was using a work cart to clean shelves. The patron sustained injuries from her fall, and she and her family filed suit against the grocery store. Defendants filed a motion for summary judgment alleging that the danger was open and obvious and that plaintiffs cannot support the cause-in-fact element of their claim. The trial court granted the motion. The plaintiffs appeal. For the reasons discussed herein, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Melissa Broussard (hereinafter “Broussard”), was shopping at Market Basket, defendant’s grocery store in Lake Charles, Louisiana, on July 12, 2010. She went into an area where a Market Basket employee was using a work cart to load and unload merchandise as he cleaned the store’s milk shelves. The area was marked with a warning cone. It is Market Basket’s policy to prevent patrons from entering such an area by marking it as dangerous and by having employees offer to retrieve the product for patrons. Broussard retrieved milk from the area herself, then tripped and injured her ankle. Broussard filed suit against the owner of Market Basket (hereinafter “Market Basket”) alleging that her injury resulted from Market Basket’s negligence.

Market Basket filed a motion for summary judgment on two grounds. First, Market Basket alleged that because the danger of the work cart was open and obvious, there was no issue of material fact as to the presence of an unreasonably dangerous condition. Second, Market Basket alleged that because Broussard testified during her deposition that she did not know what caused her fall, and because Broussard has presented no other evidence of causation, she cannot support the cause-in-fact element of her claim. The trial court granted the motion |2in favor of Market Basket based on the latter argument regarding cause-in-fact. Broussard filed a motion for new trial. The trial court conducted an additional hearing, then dismissed the motion. Broussard now appeals the summary judgment.

ASSIGNMENT OF ERROR

On appeal, Broussard asserts that the trial court erred in granting Market Basket’s motion for summary judgment.

LAW AND ANALYSIS

This court reviews summary judgments de novo. Thibodeaux v. Lafayette Gen. Surgical Hasp., 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544. Summary judgment “is designed to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2). “The procedure is favored and shall be construed to accomplish these ends.” Id. A motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

This court has stated, and the supreme court agreed, “[pjrovided that sufficient time for discovery has been allowed, we will assess the proof submitted by the parties in order to weed out meritless litigation, and to secure the just, speedy, and [915]*915inexpensive determination of every action submitted for summary judgment.” Hardy v. Bowie, 98-2821, pp. 5-6 (La.9/8/99), 744 So.2d 606, 610 (quoting Hayes v. Autin, 96-287, p. 7 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, 695, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41).

The burden of proof is on the movant. However, as here, where the movant will not bear the burden of proof at trial, the movant’s burden on the motion does |snot require it to negate all essential elements of the adverse party’s claim. The movant need only establish that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that she will be able to meet her evidentiary burden of proof at trial, no genuine issue of material fact exists. La. Code Civ.P. art. 966(C)(2).

In this case, Broussard filed suit against Market Basket, alleging that the company’s actions were negligent and that those actions resulted in her injury. Broussard bears the burden to prove this at trial. She must prove the following elements of merchant liability: (1) the condition presented an unreasonable risk of harm to the claimant and that risk was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the condition; and, (8) the merchant failed to exercise reasonable care. La.R.S. 9:2800.6(B).

In addition, Broussard must prove the five elements of the well-established duty/risk analysis: (1) the defendant had a duty to conform his conduct to a specific standard; (2) the defendant failed to conform his conduct to the appropriate standard; (3) the defendant’s conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s conduct was a legal cause of the plaintiffs injuries; and, (5) actual damages. Berg v. Zummo, 00-1699 (La.4/25/01), 786 So.2d 708 (citing Roberts v. Benoit, 605 So.2d 1032 (La.1991) (on rehearing)).

Market Basket need only point out a lack of support for at least one of these elements. La.Code Civ.P. art. 966(C)(2). The burden then shifts to Broussard to show she can meet her evidentiary burden for that element. Id. If she cannot do so, summary judgment should be granted. Id.

Market Basket based its motion for summary judgment on two grounds. First, it alleged that Broussard is unable to show the work cart presented an ^unreasonable risk of harm because it was open and obvious. Second, Market Basket alleged that Broussard cannot support the cause-in-fact element of the duty/risk analysis because she testified during her deposition that she did not know what caused her fall, and she has presented no other evidence of causation. The trial court granted summary judgment based on Broussard’s inability to show evidentiary support for the cause-in-fact element. The trial court did not reach the merits of the issue of the condition being open and obvious. We will address the cause-in-fact issue first.

In support of its allegation that Broussard cannot meet the evidentiary burden for cause-in-fact, Market Basket offers the following testimony from Brous-sard’s deposition:

Q: And tell us the mechanics of that. What caused you to trip?
A: I don’t know what caused me to trip.
Q: Okay. You don’t?
A: No, I don’t.
Q: All right. Do you know if any part of your body hit any part of the cart?
[916]*916A: Not that I know of.
Q: Okay. Have you spoken to anyone who said they witnessed the accident and saw what part of your body hit what part of the cart?
A: No.
Q: Okay. As you sit here today, Ms. Broussard, can you tell us under oath what you believe made you fall? I don’t want you to guess.
A: Yeah.
Q: If you know, tell us.
A: No, I don’t.
|-Q: Okay. Do you have any idea, Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
123 So. 3d 912, 13 La.App. 3 Cir. 414, 2013 WL 5539194, 2013 La. App. LEXIS 2065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broussard-v-retail-investors-of-texas-ltd-lactapp-2013.