STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-547
DIANA DUPUY
VERSUS
DG LOUISIANA, LLC
********
SUPERVISORY WRIT FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 15-2013 HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of John D. Saunders, Shannon, J. Gremillion, and John E. Conery, Judges.
WRIT DENIED.
Cory P. Roy Brandon J. Scott Renee Y. Roy Roy & Scott, Attorneys at Law 107 North Washington Street Marksville, LA 71351 (318) 240-7800 COUNSEL FOR PLAINTIFF: Diana Dupuy Peter J. Wanek Trevor C. Davies Lynda A. Tafaro McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch 909 Poydras Street, Suite 100 New Orleans, LA 70112 COUNSEL FOR DEFENDANT/RELATOR: DG Louisiana, LLC
2 GREMILLION, Judge.
Relator, DG Louisiana, LLC, seeks supervisory writs from the trial court’s
judgment denying Relator’s motion for summary judgment. For the following
reasons, the writ is denied.
STATEMENT OF THE CASE
This case involves an accident that occurred while Plaintiff, Diana Dupuy,
was shopping at Relator’s Dollar General Store in Marksville, Louisiana. Plaintiff
went to the store on July 21, 2014, but was unable to find a shopping cart. She
asked Rose Maricle, who was employed by Relator at the time, about getting a
shopping cart to use. Maricle, who was on a smoke break, allegedly informed
Plaintiff that she could use a shopping cart that was filled with cardboard boxes
and located in one of the aisles of the store. Plaintiff began to unload the boxes
from the cart so that she could use it. Allegedly, when Plaintiff lifted a box
containing canned goods from the shopping cart, the cart fell onto her chest and
legs, causing her to fall backwards into the store’s shelving. As a result of the
accident, Plaintiff filed a personal injury lawsuit against Relator. Relator filed a
motion for summary judgment seeking dismissal of Plaintiff’s lawsuit. Following
a hearing, the trial court denied Relator’s motion for summary judgment. Relator
now seeks review of the trial court’s ruling.
SUPERVISORY RELIEF
Since the denial of a motion for summary judgment is an interlocutory ruling
from which no appeal may be taken, the only practical remedy available to avoid a
possible useless trial on the merits is to request that the appellate court exercise its
supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers,
526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988). ON THE MERITS
Relator argues that the trial court erred when it denied Relator’s motion for
summary judgment. Relator notes that with regard to the liability of the custodian
for a defective thing, La.Civ.Code art. 2317.1 provides as follows:
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
Also, Relator notes that in order to prevail in a claim against a merchant for
a fall on the merchant’s premises, a plaintiff is required to prove the elements of a
general tort claim as well as the following elements set forth in La.R.S.
9:2800.6(B):
(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.
Relator asserts that the trial court should have granted its motion for
summary judgment and dismissed Plaintiff’s lawsuit because Plaintiff has not
produced evidence to show that she will be able to prove that the shopping cart was
defective or unreasonably dangerous or prove that Relator had any knowledge of
any defect or condition that posed an unreasonable risk of harm. Relator contends
that those two elements must be proven whether Plaintiff is proceeding under
general tort law or the Merchant’s Liability Statute, La.R.S. 9:2800.6. Relator
notes that Plaintiff alleges that the boxes were improperly stacked in the shopping
2 cart, thus rendering the cart defective. However, Relator maintains that no
evidence has been offered to show that the boxes were improperly stacked in the
cart.
Relator contends that the trial court’s decision to deny the motion for
summary judgment was based on Maricle’s affidavit. Relator notes that Plaintiff
submitted Maricle’s affidavit as evidence supporting her opposition to the motion
for summary judgment. In her affidavit, Maricle states that Plaintiff would have
needed Maricle to explain to her how to remove the boxes from the shopping cart
so that the cart would not flip. However, Relator argues that the trial court’s
decision to admit the affidavit over Relator’s objection was erroneous because the
affidavit contains speculation and opinion testimony by a lay witness in violation
of La.Code Evid. art. 701 and La.Civ.Code art. 967(A). Also, Relator contends
that while Maricle’s affidavit states that she stacked the boxes in the shopping cart,
the affidavit does not describe the manner in which the boxes were stacked. Thus,
Relator asserts that there is no evidence that the boxes were improperly stacked.
In her opposition to the instant writ application, Plaintiff contends that the
trial court properly admitted Maricle’s affidavit. Plaintiff notes that La.Code Evid.
art. 701 provides as follows:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.
“The general rule is that a lay witness is permitted to draw reasonable
inferences from his or her personal observations.” State v. LeBlanc, 05-885, p.7
(La.App. 1 Cir. 2/10/06), 928 So.2d 599, 603. “If the testimony constitutes a
3 natural inference from what was observed, no prohibition against it as the opinion
of a non-expert exists as long as the lay witness states the observed facts as well.”
Id. Plaintiff argues that Maricle’s opinion as to the stability of the boxes in the
shopping cart is within her perception because she is the one who stacked the
boxes. Plaintiff also argues that since Maricle is the only one with personal
knowledge of how the boxes were stacked in the cart, her opinion is helpful in
determining whether the shopping cart posed a danger. Plaintiff maintains that
Maricle’s affidavit provides factual support for Plaintiff’s assertion that a
dangerous condition existed.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-547
DIANA DUPUY
VERSUS
DG LOUISIANA, LLC
********
SUPERVISORY WRIT FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 15-2013 HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of John D. Saunders, Shannon, J. Gremillion, and John E. Conery, Judges.
WRIT DENIED.
Cory P. Roy Brandon J. Scott Renee Y. Roy Roy & Scott, Attorneys at Law 107 North Washington Street Marksville, LA 71351 (318) 240-7800 COUNSEL FOR PLAINTIFF: Diana Dupuy Peter J. Wanek Trevor C. Davies Lynda A. Tafaro McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch 909 Poydras Street, Suite 100 New Orleans, LA 70112 COUNSEL FOR DEFENDANT/RELATOR: DG Louisiana, LLC
2 GREMILLION, Judge.
Relator, DG Louisiana, LLC, seeks supervisory writs from the trial court’s
judgment denying Relator’s motion for summary judgment. For the following
reasons, the writ is denied.
STATEMENT OF THE CASE
This case involves an accident that occurred while Plaintiff, Diana Dupuy,
was shopping at Relator’s Dollar General Store in Marksville, Louisiana. Plaintiff
went to the store on July 21, 2014, but was unable to find a shopping cart. She
asked Rose Maricle, who was employed by Relator at the time, about getting a
shopping cart to use. Maricle, who was on a smoke break, allegedly informed
Plaintiff that she could use a shopping cart that was filled with cardboard boxes
and located in one of the aisles of the store. Plaintiff began to unload the boxes
from the cart so that she could use it. Allegedly, when Plaintiff lifted a box
containing canned goods from the shopping cart, the cart fell onto her chest and
legs, causing her to fall backwards into the store’s shelving. As a result of the
accident, Plaintiff filed a personal injury lawsuit against Relator. Relator filed a
motion for summary judgment seeking dismissal of Plaintiff’s lawsuit. Following
a hearing, the trial court denied Relator’s motion for summary judgment. Relator
now seeks review of the trial court’s ruling.
SUPERVISORY RELIEF
Since the denial of a motion for summary judgment is an interlocutory ruling
from which no appeal may be taken, the only practical remedy available to avoid a
possible useless trial on the merits is to request that the appellate court exercise its
supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers,
526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988). ON THE MERITS
Relator argues that the trial court erred when it denied Relator’s motion for
summary judgment. Relator notes that with regard to the liability of the custodian
for a defective thing, La.Civ.Code art. 2317.1 provides as follows:
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
Also, Relator notes that in order to prevail in a claim against a merchant for
a fall on the merchant’s premises, a plaintiff is required to prove the elements of a
general tort claim as well as the following elements set forth in La.R.S.
9:2800.6(B):
(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.
Relator asserts that the trial court should have granted its motion for
summary judgment and dismissed Plaintiff’s lawsuit because Plaintiff has not
produced evidence to show that she will be able to prove that the shopping cart was
defective or unreasonably dangerous or prove that Relator had any knowledge of
any defect or condition that posed an unreasonable risk of harm. Relator contends
that those two elements must be proven whether Plaintiff is proceeding under
general tort law or the Merchant’s Liability Statute, La.R.S. 9:2800.6. Relator
notes that Plaintiff alleges that the boxes were improperly stacked in the shopping
2 cart, thus rendering the cart defective. However, Relator maintains that no
evidence has been offered to show that the boxes were improperly stacked in the
cart.
Relator contends that the trial court’s decision to deny the motion for
summary judgment was based on Maricle’s affidavit. Relator notes that Plaintiff
submitted Maricle’s affidavit as evidence supporting her opposition to the motion
for summary judgment. In her affidavit, Maricle states that Plaintiff would have
needed Maricle to explain to her how to remove the boxes from the shopping cart
so that the cart would not flip. However, Relator argues that the trial court’s
decision to admit the affidavit over Relator’s objection was erroneous because the
affidavit contains speculation and opinion testimony by a lay witness in violation
of La.Code Evid. art. 701 and La.Civ.Code art. 967(A). Also, Relator contends
that while Maricle’s affidavit states that she stacked the boxes in the shopping cart,
the affidavit does not describe the manner in which the boxes were stacked. Thus,
Relator asserts that there is no evidence that the boxes were improperly stacked.
In her opposition to the instant writ application, Plaintiff contends that the
trial court properly admitted Maricle’s affidavit. Plaintiff notes that La.Code Evid.
art. 701 provides as follows:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.
“The general rule is that a lay witness is permitted to draw reasonable
inferences from his or her personal observations.” State v. LeBlanc, 05-885, p.7
(La.App. 1 Cir. 2/10/06), 928 So.2d 599, 603. “If the testimony constitutes a
3 natural inference from what was observed, no prohibition against it as the opinion
of a non-expert exists as long as the lay witness states the observed facts as well.”
Id. Plaintiff argues that Maricle’s opinion as to the stability of the boxes in the
shopping cart is within her perception because she is the one who stacked the
boxes. Plaintiff also argues that since Maricle is the only one with personal
knowledge of how the boxes were stacked in the cart, her opinion is helpful in
determining whether the shopping cart posed a danger. Plaintiff maintains that
Maricle’s affidavit provides factual support for Plaintiff’s assertion that a
dangerous condition existed. Further, Plaintiff contends that despite Relator’s
argument to the contrary, the affidavit does explain how the boxes were stacked in
the cart. In that regard, Plaintiff notes that Maricle states in her affidavit that she
stacked possibly eight boxes of canned goods in and under the shopping cart, with
some boxes sticking out of the top of the cart.
We agree with Plaintiff that the admission of Maricle’s affidavit was proper
because the affidavit was based on Maricle’s first-hand knowledge and
perceptions. The trial court properly found that as a former employee of the Dollar
General Store, Maricle was in a position to give some insight on the issue of
whether the shopping cart was loaded in such a way as created a risk of harm for
Plaintiff.
We note that there are conflicting factual accounts regarding how Plaintiff
came to use the shopping cart at issue. While in Plaintiff’s deposition she alleges
that Maricle told her to use the cart filled with boxes, Maricle states in her affidavit
that she had initially instructed Plaintiff to use an empty cart that was supposedly
next to the cart which was loaded with boxes of canned goods. However, Maricle
does seem to acknowledge in her affidavit that she failed to instruct Plaintiff on
how to remove the boxes so that the shopping cart would not flip. At the very
4 least, the affidavit does create a genuine issue of material fact as to whether the
actions of Relator’s employee negligently contributed to Plaintiff’s accident such
that Relator could be held liable for Plaintiff’s injuries. Accordingly, the trial court
did not err when it denied Relator’s motion for summary judgment. Therefore, the
writ application is denied.