Moses v. Wal-Mart Stores, Inc.

258 So. 3d 184
CourtLouisiana Court of Appeal
DecidedNovember 29, 2017
DocketCW 17–566
StatusPublished
Cited by1 cases

This text of 258 So. 3d 184 (Moses v. Wal-Mart Stores, Inc.) 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
Moses v. Wal-Mart Stores, Inc., 258 So. 3d 184 (La. Ct. App. 2017).

Opinion

PERRET, Judge.

*185This case involves a slip and fall in an aisle of Wal-Mart's Mansura location store. Relator, Wal-Mart Stores, LLC, which was sued as Wal-Mart Stores, Inc. ("Wal-Mart"), seeks supervisory review of the trial court's judgment denying its motion for summary judgment. For the following reasons, we hereby grant Relator's writ, reverse the trial court's judgment, and dismiss Respondent's suit with prejudice.

STATEMENT OF THE CASE

Bobby Moses ("Respondent") alleges that he slipped and fell in the Mansura, Louisiana, Wal-Mart on October 21, 2015. In its reasons for ruling, the trial court summarized the facts as follows:

The parties agree, as per video surveillance evidence, at approximately 9:57 a.m., an unidentified companion of plaintiff is seen holding a Subway cup and turns down the condiment aisle. At approximately 9:59:22[,] this unidentified companion of plaintiff exits the condiment aisle on the other end without the Subway cup. Plaintiff enters the condiment aisle at approximately 10:00 a.m. and slips in the area of the spilled Subway soda. It appears that these facts are not in dispute.

Respondent subsequently filed suit against Wal-Mart. Wal-Mart filed a motion for summary judgment alleging that Respondent could not meet his burden of proof regarding Wal-Mart's actual or constructive notice of the spill. In support of its motion, Wal-Mart submitted Respondent's deposition with two still photographs from the surveillance video, the incident report, a picture of the spilled cup attached as exhibits to the deposition; Wal-Mart's asset protection manager's affidavit, with the surveillance video itself as an exhibit to the affidavit; and three time-stamped still photographs from the surveillance video.

In opposition, Respondent argued that he had "met his burden of providing circumstantial factual support for all elements of his claim" and that there existed a genuine issue of material fact "as to whether the period of time that the cup at issue lay on the floor of Wal-Mart's store was sufficiently lengthy" to constitute constructive notice. Respondent did not introduce any evidence to support his claim.

The matter was heard and taken under advisement. On May 5, 2017, the trial court issued written reasons for ruling and denied summary judgment finding "that a genuine issue of material fact exists as to whether Wal-Mart, in the exercise of reasonable care and in accordance with its own internal policies and procedures, would have had constructive notice of the presence of the Subway cup on the floor of its store."

Wal-Mart timely sought supervisory writs, which this court granted in accordance with La.Code Civ.P. art. 966(H) and this court's Internal Rule 30.

LAW AND DISCUSSION

The disposition of a motion for summary judgment is reviewed de novo, "under the same criteria governing the trial court's consideration of whether summary judgment is appropriate." Brown v. Diagnostic Imaging Servs., Inc. , 15-207, p. 3 (La.App. 4 Cir. 8/12/15), 173 So.3d 1168, 1169 (citations omitted). "After an opportunity for adequate discovery, a motion for *186summary 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). The mover bears the initial burden of proof; but the burden shifts as follows:

Nevertheless, if the mover will not bear the burden of proof at trial on the 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. 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.

La.Code Civ.P. art. 966(D)(1).

To succeed in a negligence claim against a merchant, La.R.S. 9:2800.6 requires a plaintiff prove that:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice1 of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Wal-Mart's first assignment of error is that the trial court erred in determining the spill existed for a legally sufficient period of time to impose constructive notice on Wal-Mart, despite the Louisiana Supreme Court's opinion in the factually similar case, Guillot v. Dolgencorp, L.L.C. , 13-2953 (La. 3/21/14), 135 So.3d 1177. In Guillot , the supreme court reversed the lower courts' rulings, and granted summary judgment to defendant for the reasons in Chief Judge Thibodeaux's appellate dissent. Chief Judge Thibodeaux's dissent opined:

I conclude Mr. Guillot failed to prove that Dolgencorp had constructive notice of the allegedly hazardous McDonald's cup. Absent Ms. Ragsdale's deposition testimony, the only evidence in the record regarding the temporal element is the video surveillance indicating the cup was on the floor for roughly two minutes prior to Mr. Guillot's accident. Unlike Broussard [v. Wal-Mart Stores, Inc. , 98-813 (La.App. 3 Cir. 1/20/99), 741 So.2d 65], even if the cup was full of water as stated in Mr. Guillot's testimony, there is no evidence as to the size, state, and scope of a spill that would indicate the cup was there for any more time than the two minutes in the video. While I recognize this was a busy time of year given the Easter season, two minutes, without more, is not a "sufficiently lengthy" time to put a merchant on notice of hazardous conditions. To hold otherwise is unreasonable because it forces a merchant to constantly monitor the physical state of his place of business rather than engage in the primary goal of selling goods.

*187Guillot v. Dolgencorp, LLC , 13-587, pp. 1-2 (La.App. 3 Cir. 11/27/13), 127 So.3d 124, 131, writ granted , 13-2953 (La.

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258 So. 3d 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moses-v-wal-mart-stores-inc-lactapp-2017.