Luft v. Winn Dixie Montgomery, LLC

228 So. 3d 1269, 2017 WL 510995
CourtLouisiana Court of Appeal
DecidedFebruary 8, 2017
DocketNO. 16-CA-559
StatusPublished
Cited by9 cases

This text of 228 So. 3d 1269 (Luft 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
Luft v. Winn Dixie Montgomery, LLC, 228 So. 3d 1269, 2017 WL 510995 (La. Ct. App. 2017).

Opinion

CHEHARDY, C.J.

11 Plaintiff, Tami Luft, appeals the 24th Judicial District Court’s April 11, 2016 judgment granting summary judgment in favor of defendant, Winn-Dixie Montgomery, LLC (“Winn-Dixie”), and dismissing with prejudice' Ms. Luft’s slip- and-fall claim against Winn-Dixie. For the reasons that'follow, we affirm this judgment of the district court.'

FACTS AND PROCEDURAL HISTORY

On April 20, 2016, Ms. ,Luft filed suit against Winn-Dixie for damages arising out of a May 21, 2014 slip-and-fall incident at the Winn-Dixie store in Gretna, Louisiana. Ms. Luft alleged that she sustained injuries when she tripped and fell on a clear piece of plastic from shelving in the store.

[1271]*1271Following preliminary discovery, on February 16, 2016, Winn-Dixie filed a motion for summary judgment, claiming that Ms. Luft could not satisfy her burden of proof under La. R.S. ,9:2800.6. Winn-Dixie argued that Ms. Luft could not prove that Winn-Dixie either created or had actual or constructive .notice of the condition that allegedly caused her to trip and fall. In support of its motion for summary judgment, Winn-Dixie attached the deposition of Ms. Luft and an affidavit of Jason Lol-lis, the manager on duty at the time of the incident.

In Ms, Luffs deposition, she explained that after getting off work at 6:00 a.m. on May 21, 2014, she slept until 3:00 p.m., watched television,' and then around 5:00 p.m., went to the Winn-Dixie store at the corner of Belle Chasse Highway and Wall Boulevard in Gretna for snacks and bread. She picked up a bag of pretzels on the chip aisle and continued toward the back of the store to pick up bread when she hit something with her left foot, twisted her right knee, and fell to the ground, catching herself with her hands. On the ground she found a clear piece of plastic that was 4 inches tall, 18-20 inches long, and appeared to have been dislodged from the bottom shelf near the site of her fall. There were other similar Upieces of plastic on the bottom shelf, keeping the products in place. These, plastic barriers were not protruding into the aisle, but were flush with the front of the shelf. Ms. Luft stated that she did not see the plastic prior to her fall and did not know where the piece she found on the ground was located before her fall.

The on-duty manager, Jason Lollis, helped Ms. Luft up off the ground and had her complete and sign an accident report. Ms. Luft did not seek medical attention at that time and was able to walk on her own. She picked up two loaves of bread and left the store. In his affidavit, Mr. Lollis attested that he had no prior knowledge or notice of any potential problem with thé plastic barrier on the bottom shelf of the chip aisle.

To her opposition to Winn-Dixie’s motion for summary judgment, Ms. Luft attached her deposition, her affidavit, a deposition of Jason' Lollis, as well as photographs of her injuries and the scene of the incident.

Mr. Lollis explained in his deposition that he was the on-duty manager on -May 21, 2014 and that the chip aisle was under his supervision. As an on-duty manager, Mr. Lollis’ duties include “store walks,” which are walk-throughs of the store to inspect and assess various issues, such as cleaning, stocking, and safety. He explained that Winn-Dixie’s policies and procedures recommend these store, walks should occur at specified times throughout the day, including a walk between 4:00 and 5:00 p.m. Mr. Lollis stated that he did not inspect the chip aisle between 4:00 and 5:00 p.m. on May 21, 2014, that he could not confirm if another employee did so, and that he did not know the last time, an inspection of the aisle was performed prior to the incident.

Both parties agree that the video surveillance footage from the store, which was not considered by the district court,1 did not capture the incident or the,, area lawhere the incident occurred.

On March 23, 2016, following a hearing on Winn-Dixie’s motion, the court granted summary judgment in favor of Winn-Dix-ie, The court found that Ms. Luft could not prove the notice’ element of her claim [1272]*1272against Winn-Dixie. In the signed judgment that followed on April 11, 2016, the court granted summary judgment in favor of Winn-Dixie and dismissed with prejudice Ms. Luft’s claim against Winn-Dixie. The court designated this judgment as final pursuant to La. C.C.P. art. 1915.

On April 21, 2016, Ms. Luft filed a motion to set aside the judgment and for new trial, arguing that the granting of the motion for summary judgment was contrary to the law and evidence. Following a hearing on May 31, 2016, the court denied this motion in a judgment on June 3, 2016. Ms. ■Luft appeals the district court’s April 11, 2016 and June 3, 2016 judgments.

DISCUSSION

On appeal, Ms. Luft argues that the district court erred in granting Winn-Dixie’s motion for summary judgment and erred in denying her motion to set aside judgment and for new trial.

We conduct a de novo review of a judgment granting a motion for summary judgment. Richthofen v. Medina, 14-294 (La. App. 5 Cir. 10/29/14), 164 So.3d 231, 234, writ denied, 14-2514 (La. 3/13/15), 161 So.3d 639. Under this standard of review, we use the same criteria as the trial court in determining if summary judgment is appropriate: whether there is a genuine issue as to material fact and whether the mover is entitled to judgment as a matter of law. Id.

“[A] motion for summary judgment shall be granted'if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art.. 966(A)(3). “[I]f the mover will not bear the burden of proof at trial on [4the issue that is before the court on the motion for summary judgment, the mover’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 the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art. 966(D)(1). “The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment •as a matter of law.” Id.

Here, Winn-Dixie is the mover who will not bear the burden of proof at trial. Accordingly, in its motion for summary judgment, Winn-Dixie sought to point out the absence of factual support for one of the essential elements of Ms. Luft’s slip- and-fall claim.

To succeed on a slip-and-fall claim against a merchant, the plaintiff must prove the essential elements of a standard negligence claim in addition to the requirements. of La. R.S. 9:2800.6. Evans v. Winn-Dixie Montgomery, LLC, 15-191 (La.App. 5 Cir. 10/28/15), 177 So.3d 386, 391. These additional requirements are set forth in La. R.S. 9:2800.6(B), which provides:

In a'negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an 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:

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