Evans v. Winn-Dixie Montgomery, LLC

177 So. 3d 386, 15 La.App. 5 Cir. 191, 2015 La. App. LEXIS 2103, 2015 WL 6687306
CourtLouisiana Court of Appeal
DecidedOctober 28, 2015
DocketNo. 15-CA-191
StatusPublished
Cited by3 cases

This text of 177 So. 3d 386 (Evans v. Winn-Dixie Montgomery, LLC) 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
Evans v. Winn-Dixie Montgomery, LLC, 177 So. 3d 386, 15 La.App. 5 Cir. 191, 2015 La. App. LEXIS 2103, 2015 WL 6687306 (La. Ct. App. 2015).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

[2In this slip and fall suit, plaintiff appeals the trial court’s granting of summary judgment in favor of defendant-merchant. For the following reasons, we find the trial court properly determined that plaintiff has failed to meet her burden to prove actual or constructive notice of the alleged unreasonably dangerous condition as required under La. R.S. 9:2800.6 and, thus, summary judgment was appropriate under the facts of this case. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On August 15, 2013, plaintiff, Carol Evans, filed suit against defendant, Winn-Dixie Montgomery, LLC, for damages arising out of an October 21, 2012 slip-and-fall accident at the Marrero Winn-Dixie store. Plaintiff alleged that she sustained injuries when she slipped in a puddle of standing liquid near the meat section of the store.

Following preliminary discovery, Winn-Dixie filed a motion for summary judgment, asserting that plaintiff could not satisfy her burden of proof under La. |sR.S. 9:2800.6.1 Specifically, Winn-Dixie argued that plaintiff could not prove that it created or had actual notice of the liquid substance that she alleges caused her to slip; further, Winn-Dixie asserted that plaintiff could not show that the liquid remained on the store aisle for a specific period of time prior to the accident, as required to prove constructive notice and to satisfy the temporal element under La. R.S. 9:2800.6.

In support of its motion for summary judgment, Winn-Dixie attached the accident report and store surveillance video as well as plaintiffs and employees’ deposition testimony. Winn-Dixie first pointed to plaintiffs deposition testimony that she had no knowledge of the length of time that the water had been on the floor prior to her fall. In her deposition, plaintiff testified that she had been shopping in the store for approximately 30 minutes to one hour before the accident and did not notice any water on the floor in the store at any time prior to her fall. She testified that, after she fell, she noticed droplets of water on the floor, but she had no knowledge as to the length of time that the water had been on the floor prior to her fall. She further stated that the liquid on the floor where she slipped appeared “very clear,” with no dirt or cart marks present.

The co-director of the store, Mr. Scion-eaux, testified in his deposition that the Marrero store has approximately 1,300 to 1,500 customers per day. He further testified that the date of the accident, October 12, 2012, was the day of a Saints game, which typically produces higher traffic in the store. Mr. Scioneaux estimated that from store opening time, at 6:00 a.m., until the time of plaintiffs accident, at 11:03 a.m., approximately 600 customers would have visited the store. He testified that [389]*389he received no complaints concerning water on the aisle floor prior to plaintiffs fall.

j4Mr. Scioneaux testified that, following the accident, he cleaned the area with paper towels and assisted plaintiff in completing an accident report. The accident report completed on the date of the accident states that plaintiff slipped in the meat aisle of the store and that the suspected source of the water was a leaking shopping cart. Mr. Scioneaux described the water as small droplets of water that appeared to have dripped from a leaking cart or object, spanning approximately 50 to 75 feet. He continued to clean up several small droplets of water and “walked” the store until he found a shopping cart with a leaking 24-pack of water near the front of the store.

Mr. Scioneaux stated that, upon his review of the video surveillance of the accident at issue, he was 60%-75% sure that the leaking cart that he found at the front of the store belonged to a lady in a green shirt, who can be seen in the video surveillance pushing a shopping cart near the area of the accident approximately one- and-a-half minutes prior to plaintiffs fall.

The video surveillance tape, introduced into evidence at the summary judgment hearing, recorded approximately one hour of surveillance prior to plaintiffs accident. The surveillance video shows a busy grocery store aisle with several customers walking near the area of the accident without incident. The one hour video also shows various employees at or near the area of the accident.2 Terry Twickler, an employee in the meat department, is seen in the surveillance video approximately fifteen minutes prior to plaintiffs fall, restocking meat onto the meat shelves from a rolling rack. He leaves the area and, approximately seven minutes prior to plaintiffs fall, Mr. Twickler returns and is seen in the surveillance video carrying a single, white meat tray vertically in one hand. Mr. Twickler | r,testified that no one reported any water on the floor during the time that he was in the store aisle.

In the following five minutes — the time between Mr. Twickler leaving the area with the single meat tray and the time of plaintiffs accident — the video shows at least seventeen customers walk without incident past the meat section and near the exact area where plaintiff slipped. In fact, the video shows that plaintiff traversed the exact area where she slipped less than two minutes before the accident and noticed no water present on the floor.

Approximately one-and-a-half minutes prior to plaintiffs accident, Taylor Cassilia, a Winn-Dixie cashier, is seen in the surveillance video walking past the area of the accident.3 As the lady with the green shirt approaches the area of the accident with her shopping cart, Ms. Cassilia walks past her. After Ms. Cassilia leaves the area, the lady in the green shirt stops her cart, approximately one minute before plaintiffs accident, to select meat out of the meat case. There are no employees seen in the area between the time that the lady in the green shirt leaves the area of the accident and the time of plaintiffs fall.

In opposition to Winn-Dixie’s motion for summary judgment, plaintiff attached the [390]*390affidavit and report of Mitchell Wood, an architect and engineer.4 Mr. Wood conducted a site inspection of the Marrero store on February 5, 2014. Mr. Wood’s report states that he conducted a wet coefficient of friction test (COF) by using a spray bottle to “mist[ ]” the vinyl flooring where the accident occurred. The results of this test were “average” and Mr. Wood found that the flooring could be “slippery and hazardous when wet.” The report further states that the illumination | (¡in the meat aisle of the store is “less than standard” but also indicates that “improved lighting would not necessarily have prevented the plaintiffs accident.” Although Mr. Wood’s report states that the store floor was substandard and “hazardous when wet,” it also acknowledges that, “possibly, Store management was unaware of the hazard of water/liquid pooling on the vinyl tile which could result to a slip and fall accident.”5

On October 17, 2014, the trial court conducted a hearing on Winn-Dixie’s motion for summary judgement.6 After taking the matter under advisement, the trial court granted Winn-Dixie’s motion for summary judgment, dismissing plaintiffs suit with prejudice. The trial judge issued written reasons for judgment, finding that plaintiff failed to prove actual or constructive notice as required under La. R.S. 9:2800.6. This timely appeal follows.

DISCUSSION

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Bluebook (online)
177 So. 3d 386, 15 La.App. 5 Cir. 191, 2015 La. App. LEXIS 2103, 2015 WL 6687306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-winn-dixie-montgomery-llc-lactapp-2015.