NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-44
MARY MASON
VERSUS
BURLINGTON COAT FACTORY OF LOUISIANA, LLC, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20145102 HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Van H. Kyzar, Judges.
AFFIRMED. Alex Z. Stanford Stanford Law Firm P. O. Box 1237 Opelousas, LA 70571-1237 (337) 948-4113 COUNSEL FOR PLAINTIFF/APPELLANT: Mary Mason
Brett Michael Bollinger L. Peter Englande, Jr. Zaunbrecher Treadaway Bollinger, LLC 406 N. Florida St., Suite 2 Covington, LA 70433 (985) 273-3123 COUNSEL FOR DEFENDANT/APPELLEE: Burlington Coat Factory of Louisiana, LLC
Bruce David Beach Law Offices of Keith S. Giardina 9100 Bluebonnet Centre Blvd., Suite 300 Baton Rouge, LA 70809 (225) 293-7272 COUNSEL FOR DEFENDANT/APPELLEE: Sole Designs, Inc. EZELL, Judge.
Mary Mason appeals a trial court judgment which granted summary
judgment in favor of Burlington Coat Factory of Louisiana. Mrs. Mason filed suit
against Burlington when a chair she sat in at the store in Lafayette collapsed.
FACTS
On October 10, 2013, Mrs. Mason and her husband went to the Burlington
store on Ambassador Caffery Parkway in Lafayette. Her husband went into the
store, and Mrs. Mason waited in the car. She later went into the store to find her
husband. Mrs. Mason walked by a display of chairs on a platform and decided to
sit in one of the chairs while she called her husband on her phone. When Mrs.
Mason sat down, the chair collapsed, and she hit the platform.
Mrs. Mason testified that a manager and her husband both came into the area
where she fell. They tried to determine how the chair collapsed, and when they
turned it upside down, they noticed there were no screws in the back legs. The
manager then had someone from the back of the store remove the chair and any
pieces. Another person then had the chair brought back out so the Masons could
take pictures of it. Mrs. Mason also stated that she signed an incident report before
she left the store.
After leaving the store, Mrs. Mason went to Our Lady of Lourdes Regional
Medical Center where she was given an injection and some medication. Following
the accident, she experienced right hip and knee problems in addition to back
problems and was treated by several doctors.
On October 6, 2014, Mrs. Mason filed suit against Burlington.
Subsequently, on July 21, 2015, Burlington filed a third-party claim against
S.O.L.E. Designs, Inc., the designer and manufacturer of the chair seeking indemnity should it be found liable to Mrs. Mason. On July 5, 2016, S.O.L.E filed
a motion for summary judgment, seeking dismissal of the third-party demand.
Burlington then filed its own motion for summary judgment on August 23, 2016,
seeking dismissal of Mrs. Mason’s claims against it.
A hearing on both motions for summary judgment was held on October 10,
2016. The trial court granted Burlington’s motion for summary judgment finding
that Mrs. Mason failed to establish any factual support that Burlington had actual
or constructive notice of the defect. The trial court ruled that res ipsa loquitur was
not applicable under the circumstances of this case. The trial court also granted
S.O.L.E.’s motion for summary judgment. Mrs. Mason then filed the present
appeal. Burlington did not appeal the grant of summary judgment in favor of
S.O.L.E. Therefore, the judgment dismissing S.O.L.E. is final. See Breaux v.
Rimmer & Garrett, Inc., 320 So.2d 214 (La.App. 3 Cir. 1975).
SUMMARY JUDGMENT
Mrs. Mason argues that the crucial issue in this case is whether or not the
trial court correctly applied the doctrine of res ipsa loquitur to the facts. She
claims that the notice requirement for negligence under the Merchant Liability
Statute, La.R.S. 9:2800.6, could be imputed from the application of res ipsa
loquitur. Mrs. Mason argues that the chair was placed on the sales floor by an
employee of the store without the rear legs screwed on. There was no other
plausible way this could happen without the employee being aware of this defect.
She argues that the doctrine of res ipsa loquitur allows for the inference of
negligence in the absence of other equally probable explanations offered by
credible witnesses, and no evidence or witnesses were introduced by Burlington as
to other plausible explanations.
2 Summary judgment procedure is favored and ―is designed to secure the just,
speedy, and inexpensive determination of every action . . . . and shall be construed
to accomplish these ends.‖ La.Code Civ.P. art 966(A)(2).1 In reviewing the trial
court’s decision on a motion for summary judgment, this court applies a de novo
standard of review. Jackson v. City of New Orleans, 12-2742, 12-2743 (La.
1/28/14), 144 So.3d 876, cert. denied, ____U.S. ____, 135 S.Ct. 197 (2014).
The burden of proof is on the mover unless the mover will not bear the
burden of proof at trial, in which case the mover is not required to negate all
essential elements of the adverse party’s claim, but only to point out to the court
the absence of factual support for one or more of the elements necessary to the
adverse party’s claim. La.Code Civ.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.
―After an opportunity for adequate discovery, 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.Code Civ.P. art. 966(A)(3).
A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.
Jackson, 144 So.3d at 882.
1 Louisiana Code of Civil Procedure Article 966 was amended by Acts 2015, No. 422, and was effective January 1, 2016, so the amendment applies in this case since the hearing on the motions was heard on October 10, 2016.
3 In order to prevail in an action against a merchant for a fall, one of the
elements a plaintiff must establish is that ―[t]he merchant either created or had
actual or constructive notice of the condition which caused the damage, prior to the
occurrence.‖ La.R.S. 9:2800.6(B)(2).
Res ipsa loquitur is a rule of circumstantial evidence inferring negligence
and applying when the facts of the case indicate that the negligence of the
defendant is the most probable cause of the accident. Cangelosi v. Our Lady of the
Lake Reg’l Med. Ctr., 564 So.2d 654 (La.1989). A plaintiff must still prove
negligence, but with proof of the accident and enough attending circumstances, the
burden shifts to the defendant. Id. Nevertheless, application of the doctrine is
defeated if there is some other plausible explanation for the accident other than the
defendant’s negligence. Id.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-44
MARY MASON
VERSUS
BURLINGTON COAT FACTORY OF LOUISIANA, LLC, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20145102 HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Van H. Kyzar, Judges.
AFFIRMED. Alex Z. Stanford Stanford Law Firm P. O. Box 1237 Opelousas, LA 70571-1237 (337) 948-4113 COUNSEL FOR PLAINTIFF/APPELLANT: Mary Mason
Brett Michael Bollinger L. Peter Englande, Jr. Zaunbrecher Treadaway Bollinger, LLC 406 N. Florida St., Suite 2 Covington, LA 70433 (985) 273-3123 COUNSEL FOR DEFENDANT/APPELLEE: Burlington Coat Factory of Louisiana, LLC
Bruce David Beach Law Offices of Keith S. Giardina 9100 Bluebonnet Centre Blvd., Suite 300 Baton Rouge, LA 70809 (225) 293-7272 COUNSEL FOR DEFENDANT/APPELLEE: Sole Designs, Inc. EZELL, Judge.
Mary Mason appeals a trial court judgment which granted summary
judgment in favor of Burlington Coat Factory of Louisiana. Mrs. Mason filed suit
against Burlington when a chair she sat in at the store in Lafayette collapsed.
FACTS
On October 10, 2013, Mrs. Mason and her husband went to the Burlington
store on Ambassador Caffery Parkway in Lafayette. Her husband went into the
store, and Mrs. Mason waited in the car. She later went into the store to find her
husband. Mrs. Mason walked by a display of chairs on a platform and decided to
sit in one of the chairs while she called her husband on her phone. When Mrs.
Mason sat down, the chair collapsed, and she hit the platform.
Mrs. Mason testified that a manager and her husband both came into the area
where she fell. They tried to determine how the chair collapsed, and when they
turned it upside down, they noticed there were no screws in the back legs. The
manager then had someone from the back of the store remove the chair and any
pieces. Another person then had the chair brought back out so the Masons could
take pictures of it. Mrs. Mason also stated that she signed an incident report before
she left the store.
After leaving the store, Mrs. Mason went to Our Lady of Lourdes Regional
Medical Center where she was given an injection and some medication. Following
the accident, she experienced right hip and knee problems in addition to back
problems and was treated by several doctors.
On October 6, 2014, Mrs. Mason filed suit against Burlington.
Subsequently, on July 21, 2015, Burlington filed a third-party claim against
S.O.L.E. Designs, Inc., the designer and manufacturer of the chair seeking indemnity should it be found liable to Mrs. Mason. On July 5, 2016, S.O.L.E filed
a motion for summary judgment, seeking dismissal of the third-party demand.
Burlington then filed its own motion for summary judgment on August 23, 2016,
seeking dismissal of Mrs. Mason’s claims against it.
A hearing on both motions for summary judgment was held on October 10,
2016. The trial court granted Burlington’s motion for summary judgment finding
that Mrs. Mason failed to establish any factual support that Burlington had actual
or constructive notice of the defect. The trial court ruled that res ipsa loquitur was
not applicable under the circumstances of this case. The trial court also granted
S.O.L.E.’s motion for summary judgment. Mrs. Mason then filed the present
appeal. Burlington did not appeal the grant of summary judgment in favor of
S.O.L.E. Therefore, the judgment dismissing S.O.L.E. is final. See Breaux v.
Rimmer & Garrett, Inc., 320 So.2d 214 (La.App. 3 Cir. 1975).
SUMMARY JUDGMENT
Mrs. Mason argues that the crucial issue in this case is whether or not the
trial court correctly applied the doctrine of res ipsa loquitur to the facts. She
claims that the notice requirement for negligence under the Merchant Liability
Statute, La.R.S. 9:2800.6, could be imputed from the application of res ipsa
loquitur. Mrs. Mason argues that the chair was placed on the sales floor by an
employee of the store without the rear legs screwed on. There was no other
plausible way this could happen without the employee being aware of this defect.
She argues that the doctrine of res ipsa loquitur allows for the inference of
negligence in the absence of other equally probable explanations offered by
credible witnesses, and no evidence or witnesses were introduced by Burlington as
to other plausible explanations.
2 Summary judgment procedure is favored and ―is designed to secure the just,
speedy, and inexpensive determination of every action . . . . and shall be construed
to accomplish these ends.‖ La.Code Civ.P. art 966(A)(2).1 In reviewing the trial
court’s decision on a motion for summary judgment, this court applies a de novo
standard of review. Jackson v. City of New Orleans, 12-2742, 12-2743 (La.
1/28/14), 144 So.3d 876, cert. denied, ____U.S. ____, 135 S.Ct. 197 (2014).
The burden of proof is on the mover unless the mover will not bear the
burden of proof at trial, in which case the mover is not required to negate all
essential elements of the adverse party’s claim, but only to point out to the court
the absence of factual support for one or more of the elements necessary to the
adverse party’s claim. La.Code Civ.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.
―After an opportunity for adequate discovery, 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.Code Civ.P. art. 966(A)(3).
A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.
Jackson, 144 So.3d at 882.
1 Louisiana Code of Civil Procedure Article 966 was amended by Acts 2015, No. 422, and was effective January 1, 2016, so the amendment applies in this case since the hearing on the motions was heard on October 10, 2016.
3 In order to prevail in an action against a merchant for a fall, one of the
elements a plaintiff must establish is that ―[t]he merchant either created or had
actual or constructive notice of the condition which caused the damage, prior to the
occurrence.‖ La.R.S. 9:2800.6(B)(2).
Res ipsa loquitur is a rule of circumstantial evidence inferring negligence
and applying when the facts of the case indicate that the negligence of the
defendant is the most probable cause of the accident. Cangelosi v. Our Lady of the
Lake Reg’l Med. Ctr., 564 So.2d 654 (La.1989). A plaintiff must still prove
negligence, but with proof of the accident and enough attending circumstances, the
burden shifts to the defendant. Id. Nevertheless, application of the doctrine is
defeated if there is some other plausible explanation for the accident other than the
defendant’s negligence. Id.
Three criteria must be satisfied to establish the application of res ipsa
loquitur:
(1) the injury is of the kind which does not ordinarily occur in the absence of negligence on someone’s part; (2) the evidence sufficiently eliminates other more probable causes of the injury, such as the conduct of the plaintiff or of a third person; and (3) the alleged negligence of the defendant must be within the scope of the defendant’s duty to the plaintiff.
Linnear v. CenterPoint Energy Entex/Reliant Energy, 06-3030, p. 10 (La. 9/5/07),
966 So.2d 36, 44.
In support of its motion for summary judgment, Burlington offered the
deposition of Mrs. Mason. Mrs. Mason explained that the chair was on a platform
in the store to be sold. She admitted the chair was not in an area designated as
seating for customers but was on a display. The chair had four legs with a back but
no arm rests. She did not see any problems with the chair before she sat in it.
After her husband and the manager examined the chair, they noticed the back legs
4 did not have screws in them. Mrs. Mason testified that she did not know if the
store knew of any problem with the chair before the accident.
Other than Mrs. Mason’s deposition, no other evidence in the record. Mrs.
Mason relies on the fact that the two back legs of the chair were missing screws.
She argues that the court should assume that an employee at Burlington assembled
the chair and failed to insert the screws into the legs.
The burden in this case never switched to Burlington because Mrs. Mason
failed to offer enough evidence of attending circumstances for the doctrine of res
ipsa loquitur to apply. First, Mrs. Mason never offered proof that Burlington
assembled the chair before it was placed on the floor. Burlington may have
received the chair already assembled. Also, as pointed out by the trial court, it is
just as possible that a third party removed the screws from the legs after it was
placed on the floor.
We find that there is no proof of actual or constructive knowledge of the
missing screws. We further find that Mrs. Mason is not entitled to the application
of the doctrine of res ipsa loquitur as there are other plausible explanations for the
missing screws aside from Burlington failing to place the screws in the chair which
Mrs. Mason has failed to discredit or even cast doubt on. Therefore, we agree with
the trial court that the doctrine of res ipsa loquitur is not applicable and that
Burlington was entitled to summary judgment in its favor.
For these reasons, the judgment of the trial court is affirmed. Costs of this
appeal are assessed to Mary Mason.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.