Gaspard v. Safeway Insurance Co.

174 So. 3d 692, 2014 La.App. 1 Cir. 1676, 2015 La. App. LEXIS 1141, 2015 WL 3537533
Louisiana Court of Appeal·Decided June 5, 2015·No. No. 2014 CA 1676·Published·Cited by 6 cases

Opinion

McClendon, ,j.

12Plaintiffs, Michael Gaspard, Jr., and Jennifer Gaspard, individually and on behalf of their minor child Adam Gaspard, appeal a summary judgment dismissing their action against Winn-Dixie Louisiana, Inc., Winn-Dixie .Montgomery Leasing, L.L.C., Alterra Excess and Surplus Insurance Company, and Gordon Konrad. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 19, 2011, the plaintiffs, Michael Gaspard, Jr. and Jennifer Gaspard, and their minor child, Adam (an infant in a baby seat), were exiting a Winn-Dixie store located at 132 Main Street in Coving-ton, Louisiana. As they were walking through the marked pedestrian zone directly in front of the store, they were struck by a vehicle being driven by Anna Lewis.

On May 11, 2011, plaintiffs filed, suit against Anna Lewis; Safeway Insurance Company, thé purported liability company insuring the vehicle Lewis was driving; and Geico General Insurance Company, plaintiffs’ uninsured/underinsured motorist carrier.1.

On October 20, 2011, plaintiffs filed an amended petition naming Winn-Dixie Louisiana, Inc., Winn-Dixie Montgomery Leasing, LLC, and Gordon Konrad, the owner of the parking lot, as additional defendants. Plaintiffs alleged that those defendants were negligent in the maintenance and design of the parking lot and that they knew or should have known of the danger to customers/pedestrians in the parking lot and failed to take measures to provide for the safety of the pedestrians.2

On May 9, 2014, Winn-Dixie Louisiana, Inc.,' Winn-Dixie Montgomery Leasing, LLC, and Gordon Konrad (hereinafter collectively referred to as ‘Winn-Dixie”) filed a motion for summary judgment, asserting that the plaintiffs could not establish causation between a defect in Winn-Dixie’s premises and the ^accident. Following a hearing, the trial court granted Winn-Dix-ie’s motion for summary judgment, and dismissed them from the litigation.

Plaintiffs have appealed, asserting that the trial court erred in granting Winn-Dixie’s motion for summary judgment.

DISCUSSION

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. art. 969; the procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered in favor of the mover if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion, show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B)(2).

[694] The burden of proof to show that no material factual issue exists is on the mover. However, if the party moving for summary judgment will not bear the burden of proof at trial, the mover is not required to negate all essential elements of the adverse party’s claim. Rather, the mover must point out to the trial court 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 he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(C)(2).

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La.App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material for purposes of summary judgment can be seen only in light of the substantive law applicable to the case. Gaspard v. Graves, 05 1042 (La.App. 1 Cir. 3/29/06), 934 So.2d 158, 160, writs denied, 06-0882, 06-0958 (La.6/16/06), 929 So.2d 1286, 1289.

In a negligence action under LSA-C.C. art. 2315, the plaintiff bears the burden of proving fault, causation, and damages. Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70, 74. The plaintiff bears the burden of proving every element of his case, including the cause-in-fact of damage, by a preponderance of the evidence, that is, whether it is more likely than not that the harm was caused by the tortious conduct of one or more defendants. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993).

While the question of causation is usually an issue for the factfinder’s determination, it is possible to determine this issue on summary judgment if reasonable minds could not differ. See Henderson v. Homer Mem’l Hosp., 40,585 (La.App, 2 Cir. 1/27/06), 920 So.2d 988, 995, writ denied, 06-491 (La.5/5/06), 927 So.2d 316; Rogers v. Hilltop Retirement & Rehabilitation Center, 13-867 (La.App. 3 Cir. 2/12/14), 153 So.3d 1053, 1060; Guillie v. Comprehensive Addiction Programs, Inc., 98-2605 (La.App. 4 Cir. 4/21/99) 735 So.2d 775, 778; Cunningham v. Northland Ins. Co., 00-888 (La.App. 5 Cir. 9/14/00) 769 So.2d 689, 694, writ denied, 00-2844 (La.12/8/00), 776 So.2d 470.

In its motion for summary judgment, Winn-Dixie contended that plaintiffs could not meet their burden of proof to show that the design of the parking lot was causally related to the accident. Rather, Winn-Dixie asserted that the evidence admitted for purposes of the summary judgment clearly established that the accident was caused solely by the inattentiveness of the defendant driver, who failed to see the plaintiff pedestrians directly in front of her vehicle.

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Gaspard v. Safeway Insurance Co., 174 So. 3d 692, 2014 La.App. 1 Cir. 1676, 2015 La. App. LEXIS 1141, 2015 WL 3537533 (La. Ct. App. 2015).

174 So. 3d 692 (Gaspard v. Safeway Insurance Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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