Joyce Marie Davis v. Country Living Mobile Homes, Inc.

• Court: Louisiana Court of Appeal
• Decided: October 19, 2011
• Docket: CA-0011-0471
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

11-471

JOYCE MARIE DAVIS

VERSUS

COUNTRY LIVING MOBILE HOMES, INC., ET AL.

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APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF BEAUREGARD, NO. C-2006-0127 DIV. A HONORABLE MARTHA ANN O’NEAL, DISTRICT JUDGE

JOHN D. SAUNDERS JUDGE

Court composed of John D. Saunders, J. David Painter, and James T. Genovese, Judges.

AFFIRMED.

Genovese, J., concurs in the result and assigns written reasons.

Janice M. Reeves Attorney at Law 8545 United Plaza Blvd., Suite 350 Baton Rouge, LA 70809 (225) 924-9585 Counsel for Defendants/Appellees: Northfield Insurance Company Country Living Mobile Homes, Inc. Elizabeth B. Carr Attorney At Law 300 E. Courthouse Street Leesville, LA 71496-1528 (337) 239-2244 Counsel for Plaintiff/Appellant: Joyce Marie Davis SAUNDERS, Judge.

This is a slip and fall case where a patron of a mobile home vendor fell due

to an allegedly muddy area on the mobile home vendor’s sales lot. The patron

filed suit seeking to recover for injuries resulting from her fall. The trial court

granted the defendant, the mobile home vendor, summary judgment. The plaintiff

now appeals. We affirm.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Joyce Marie Davis (hereinafter “Davis”), and her husband

visited defendant’s mobile home sales lot in DeRidder, Louisiana, on June 28,

2005, where she slipped and fell. Subsequently, Davis filed suit against defendant

Country Living Mobile Homes, Inc. (hereinafter “Country Living”) alleging its

negligence as the cause of her slip and fall. Country Living later filed a motion for

summary judgment. The trial court granted the motion in favor of Country Living.

Davis filed a motion for a new trial, which the trial court denied. Davis now

appeals, asserting that summary judgment against her was not warranted and that

Country Living did not meet its initial burden as movant of the motion for

summary judgment.

ASSIGNMENTS OF ERROR

1. Whether the trial court erred in granting summary judgment and ruling

that there was no genuine issue of material fact and that defendant was

entitled to judgment as a matter of law on the issue of whether the

slippery patch of mud on which plaintiff fell constituted an unreasonable

risk of harm.

2. Whether the trial court erred in granting summary judgment and ruling

that defendant was entitled to judgment as a matter of law regarding

whether there was actual or constructive notice of the defect by the defendant, or alternatively whether the defendant’s agents created the

defect.

ASSISGMENTS OF ERROR NUMBERS ONE AND TWO:

In her first assignment of error, Davis contends that the trial court erred as a

matter of law in ruling that there was no genuine issue of material fact and that

defendant was entitled to judgment as a matter of law on the issue of whether the

slippery patch of mud on which plaintiff fell constituted an unreasonable risk of

harm. In her second assignment of error, Davis contends that the trial court erred

by granting summary judgment and ruling that defendant was entitled to judgment

as a matter of law regarding whether there was actual or constructive notice of the

defect by the defendant, or alternatively whether the defendant’s agents created the

defect. Because both assignments of error are directed toward the trial court’s

granting summary judgment as to two elements of the same claim, we will address

whether the trial court properly granted Country Living’s motion for summary

judgment under one heading.

Summary judgments are subject to a de novo review. Thibodeaux v.

Lafayette Gen. Surgical Hosp., 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544.

“The summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of every action, except those disallowed by Article 969.

The procedure is favored and shall be construed to accomplish these ends.”

La.Code Civ.P. art. 966(A)(2). 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).

2 It is also important to be aware of the movant’s and not-movant’s burdens of

proof. Though the burden of proof on a motion for summary judgment remains on

the movant, the movant’s burden changes contingent upon whether he or she will

bear the burden of proof at trial on the matter that is the subject of the motion for

summary judgment. Johnson v. State Farm Ins., 08-1250 (La.App. 3 Cir. 4/1/09),

8 So.3d 808.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. 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.

La.Code Civ.P. art. 966(C)(2).

In this case, Davis filed suit against Country Living, alleging that the

company was negligent in allowing a muddy spot to form and remain on its

property, which Davis contends resulted in her fall. Davis has the burden to prove

this at trial. Bias v. Scottsdale Ins. Co., 10-378 (La.App. 3 Cir. 11/10/10), 50 So.3d

964. Thus, Country Living, as movant of the motion for summary judgment, does

not bear the burden of negating all essential elements of Davis’s claim. La.Code

Civ.P. art. 966(C)(2). Rather, Country Living need only “point out a lack of

support for an essential element” of Davis’s claim. Id. Thereafter, the burden

shifts to Davis to show some support that she can meet her evidentiary burden on

that element. Id. If she cannot meet the burden, there is no genuine issue of

material fact, and the motion for summary judgment should be granted. Id.

3 The law providing the elements which Davis must prove at trial is as follows:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

La.Civ.Code art. 2317.

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.

La.Civ.Code art. 2317.1.

In summary, in order to recover for damages for premises liability, a

plaintiff must prove: (1) the thing was in defendant’s custody and control; (2) the

thing contained a defect which presented an unreasonable risk of harm to others;

and (3) the defendant knew or should have known of the defect. Bias, 50 So.3d

964.

In this case, Country Living based its motion for summary judgment on two

assertions: that Davis is unable to bear the burden of proof to show the required

notice, or Country Living’s awareness of the purported defect, and that Davis is

unable to show that the mud on the grassy land is a defect that constitutes an

unreasonable risk of harm under Louisiana law. If Country Living is able to show

that either of these assertions is true, and if Davis fails to present sufficient

evidence to satisfy her evidentiary burden, then summary judgment is appropriate.

In her first assignment of error, Davis argues that the trial court erred in its

ruling that she did not show the existence of an unreasonably dangerous condition.

She points out that she was walking in ankle deep grass which hid a pool of water

and mud and created a trap for the unwary. Clearly, she argues, the trier of fact 4 could conclude that such a trap is unreasonable. This is a strong argument which

finds some favor with this court. Ultimately, however, we choose to pretermit this

issue as it is not necessary to our decision. This is so, because a reading of the

record suggests that there is a total absence of evidence to suggest that Country

Living had notice of the water or mud hiding in wait for Davis.

In her second assignment of error, Davis argues that the trial court erred by

finding that Country Living lacked notice of the allegedly dangerous condition.

Country Living submitted the affidavit of manager Rita Luneau (hereinafter

“Luneau”) to support its contention that it did not, in fact, have actual or

constructive knowledge. In the affidavit, Luneau states that:

[she] was not aware of the faucet in the area Ms. Davis claimed she fell as being on any time earlier that day of June 28 before Ms. Davis came to the office. [Luneau] is not aware of any defect or leaking in the faucet near where Ms. Davis claims she fell that day, and she is not aware of any other employee who was aware of any problem. Davis controverted the affidavit in her deposition. \

She describes what she observed on the lot before the accident:

Q: Okay. Before the accident, did you notice anybody cleaning a mobile home? A: Yes, sir, there was a kid cleaning, but he wasn’t cleaning a mobile home per se. He was just cleaning some objects there, and I didn’t pay attention to what he was cleaning. Q: How was he cleaning it? With water or— A: Yes, sir, he did have water. Q: With a hose or some other— A: I saw the water. I didn’t pay any more attention. Q: Okay. But it was some object on the ground he was cleaning? A: Yes, sir. Q: You did see water on the ground in the area where he was cleaning, though? A: No, sir, I didn’t see the water on the ground. Q: But— A: He had like a sponge-like thing.

After Davis recounts her fall and her and her husband’s subsequent entry

into the lot’s office, she states as follows:

5 Q: Did [Luneau, who was in the office at this time,] say anything to you? A: Yes, sir. When we said what had happened, she came out and said that those kids—they’re constantly telling the kids to turn that water off and they don’t do it. Q: These are kids that work for them? A: Yes, sir, and she referred to them as kids. Q: Did you notice when you were out there whether the hose— whether the faucet was on or off? A: It was off. Q: Did she say why—what they used the water for? A: No, sir. She didn’t.

As movant of the motion for summary judgment, Country Living has the

initial burden to “point out a lack of support for an essential element” of Davis’s

claim. La.Code Civ.P. art. 966(C)(2). Here, Country Living puts forth the

assertion that Davis is unable to satisfy her burden of proof on Country Living’s

actual or constructive knowledge of the purported defect, an essential element of

Davis’s claim.

Next, Davis has the burden of showing some factual support for her

allegations. Here, her deposition testimony recounts a conversation she had with

Luneau the day of the accident. Davis argues that Luneau admitted that, in the past,

the faucet had sometimes been allowed to run unchecked. Nothing in the record

suggests, however, that we are dealing with a pool of water remaining from these

past lapses. Rather, the record and arguments all suggest that the water was

deposited by either the morning’s rain or, somehow, came from the nearby faucet.

The record suggests, without contradiction, that it rained earlier that day. Also,

Davis testified that she saw an employee with a sponge who was cleaning an object

in an area located at a slight incline above the area where she fell. We will

consider separately these two possible sources of water.

The record suggests that it rained earlier in the day on the date of the

accident. The land, however, was generally dry. Davis testified that, except in the 6 area where she fell, the grass was dry. If the pool of water was caused by rain, and

if Country Living had knowledge of this event, Country Living could be held liable

for failure to warn. The record, however, is void of any suggestion that Country

Living had any notice of the water pooling in this area. In the absence of notice,

the fact that there was rain, standing alone, would not allow Davis to carry her

burden at trial.

Country Living could also be held liable if Davis could establish that

Country Living caused the pool of water by use of the faucet. Davis attempts to

suggest this in her deposition, where she states that she saw an employee holding a

sponge-like thing cleaning something on the ground. Her testimony on this point

is minimal and vague. Davis invites this Court to conclude from the fact that the

employee had a wet sponge that the employee used the faucet in order to gather

cleaning water, and that the employee allowed the water to run long enough to

create the hazard. We are unable to accept this invitation.

The burden, at this point, is on Davis to present evidence that shows, more

likely than not, that Country Living knew of the defect or that Country Living

caused the defect. The fact that Country Living’s employee had a wet sponge,

while suggestive of some possibility, is not direct evidence of use of the faucet.

The use of a wet sponge, standing alone, fails to establish that Davis would be able

to carry her burden at trial.

CONCLUSION

Davis raised two assignments of error. Both assignments allege that the trial

court erred in granting Country Living’s motion for summary judgment.

Considering that the standard of review for a motion for summary judgment is a de

novo review of the record, we limit our discussion to whether the trial court

properly granted Country Living’s motion. 7 We find the evidence indicates that Country Living had no notice of the

allegedly dangerous condition. As such, Davis would be unable to carry her

evidentiary burden at trial. Therefore, Davis has failed to raise a genuine issue of

material fact vis à vis the issue of notice. We affirm the trial court’s ruling

granting summary judgment. All costs of this appeal are assessed to Davis.

8 STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

GENOVESE, J., concurs and assigns the following written reasons.

I agree with the result of the majority opinion; however, in my view, the facts

of the case trigger the merchant liability statute, La.R.S. 9:2800.6.