Elizabeth Melancon v. Popeye's Famous Fried Chicken

• Court: Louisiana Court of Appeal
• Decided: March 16, 2011
• Docket: CA-0010-1109
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-1109

ELIZABETH MELANCON

VERSUS

POPEYE'S FAMOUS FRIED CHICKEN, ET AL.

**********

APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 09-C-0182-C HONORABLE ALONZO HARRIS, DISTRICT JUDGE

SHANNON J. GREMILLION JUDGE

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Shannon J. Gremillion, Judges.

AFFIRMED.

Gilbert J. Aucoin II Attorney at Law 153 S. Court St. Ville Platte, LA 70586 (337) 363-2193 Counsel for Plaintiff/Appellant: Elizabeth Melancon

Lisa Ann McLachlan Musgrave, McLachlan & Penn 1515 Poydras St., #2380 New Orleans, LA 70112 (504) 799-4300 Counsel for Defendant/Appellee: TMC Foods, Inc. GREMILLION, Judge.

The plaintiff, Elizabeth Melancon, appeals the summary judgment

granted in favor of the defendant, TMC Foods, LLC (Popeye’s Famous Fried

Chicken).1 For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2008, Melancon was proceeding to exit the Popeye’s

restaurant in Grand Coteau, Louisiana when she slipped and fell on a “slick” floor.

She filed suit in January 2009 for injuries as a result of the fall. In June 2010, TMC

filed a Motion for Summary Judgment urging that the condition complained of did

not create an unreasonable risk of harm and that it exercised reasonable care in

maintaining the floor of the restaurant. Following a hearing in July 2010, the trial

court granted summary judgment in favor of TMC finding that there were no genuine

issues of material fact that Melancon will be unable to satisfy her burden of proof at

trial. Melancon now appeals and assigns as error the trial court’s grant of summary

judgment in favor of TMC, urging that genuine issues of material fact exist regarding

whether the freshly mopped floor created an unreasonable risk of harm.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v.

Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same

questions the trial court asks to determine whether summary judgment is appropriate.

Id. This inquiry seeks to determine whether any genuine issues of material fact exist

and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P.

1 Melancon incorrectly named the defendant as “Popeyes Famous Fried Chicken.” However, in her first amending and supplemental petition, she named TMC Foods, LLC as the proper party defendant.

1 art. 966(B) and (C). This means that judgment should be rendered in favor of the

movant if the pleadings, depositions, answers to interrogatories, admission on file,

and affidavits show a lack of factual support for an essential element of the opposing

party’s claim. Id. If the opposing party cannot produce any evidence to suggest that

he will be able to meet his evidentiary burden at trial, no genuine issues of material

fact exist. Id.

Material facts are those that determine the outcome of the legal dispute.

Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ

denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are

material to an action, we look to the applicable substantive law. Id. Finally, summary

judgment procedure is favored and designed to secure the just, speedy, and

inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

DISCUSSION

To maintain a slip and fall action, Melancon must prove the usual

requirements of a negligence action, plus those found in La.R.S. 9:2800.6 which

states in pertinent part:

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 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 (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.

The burden of proof does not shift to the defendant at any point and

failure to prove any one of these elements negates a plaintiff’s cause of action. White

v. Wal-Mart Stores, Inc., 97-0393 (La. 9/9/97), 699 So.2d 1081.

Melancon testified via deposition that after ordering and receiving her

food she turned away from the counter to exit the restaurant. She stated that “there

were no wet floor signs anywhere, and I just – I took one step into the wet zone and

fell.” She said the floor did not have a puddle but was “slick.” She testified an

employee had mopped the store while she was at the counter, again reiterating that

they did not put any “wet floor” signs out to warn customers. Melancon admitted to

drinking two beers approximately five hours before she slipped.

Video surveillance from the Popeye’s restaurant shows two bright yellow

standard “wet floor” signs in the Popeye’s restaurant—one near the counter and the

other at the entrance, both of which are readily visible to anyone entering the store.

Upon entering the Popeye’s restaurant, Melancon walks directly past a bright yellow

“wet floor” sign. It then shows her turning from the counter, food in hand, looking

directly at a bright yellow mop bucket. She then walks past a “wet floor” sign and

directly past the employee who is mopping the floor. The only explanation for

Melancon’s lack of awareness regarding the wet floor is her inattentiveness.

Nevertheless, Melancon argues that TMC should only mop its floors

when the store is closed and that mopping during business hours creates an

3 unreasonable risk of harm. This is an unreasonable duty to impose upon store

owners. There are a multitude of reasons, including patron safety, requiring that store

owners clean up various spills on their floors and provide a clean environment.

Jurisprudence has specifically found that mopped floors do not create an

unreasonable risk of harm when the appropriate signage is used to warn patrons of

the condition of the floor. See Rowell v. Hollywood Casino Shreveport, 43,306

(La.App. 2 Cir. 2008), 996 So.2d 476; Lee v. Ryan’s Family Steak Houses, Inc., 06-

1400 (La.App. 1 Cir. 5/4/07), 960 So.2d 1042, writ denied, 07-1577 (La. 10/12/07),

965 So.2d 405.

Popeye’s exercised reasonable care by placing two different “wet floor”

signs to alert customers that the floor had been mopped. Based on the evidence before

this court, there is no genuine issue of fact that Melancon will be unable able to

prove that TMC did not adequately warn of its freshly mopped floor with the many

and obvious signs indicating “wet floors.” Accordingly, summary judgment was

properly granted in TMC’s favor.

CONCLUSION

The judgment of the trial court in favor of the defendant-appellant, TMC

Foods, LLC, is hereby affirmed. All costs of this appeal are assessed against the

plaintiff-appellant, Elizabeth Melancon.