Primrose v. Wal-Mart Stores, Inc.

127 So. 3d 13, 2013 WL 5477234, 2013 La. App. LEXIS 1985
CourtLouisiana Court of Appeal
DecidedOctober 2, 2013
DocketNo. 48,370-CA
StatusPublished
Cited by9 cases

This text of 127 So. 3d 13 (Primrose 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
Primrose v. Wal-Mart Stores, Inc., 127 So. 3d 13, 2013 WL 5477234, 2013 La. App. LEXIS 1985 (La. Ct. App. 2013).

Opinions

STEWART, J.

|TIn this trip and fall case, PlaintiffiAp-pellant Sandra Primrose is appealing the trial court’s decision to grant Defendant/Appellee Wal-Mart Stores, Ine.’s (hereinafter referred to as ‘Wal-Mart”) motion for summary judgment. The trial court found that the exposed corners of the display were open and obvious and did not present an unreasonable risk of harm. For the reasons stated herein, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On September 8, 2009, Sandra Primrose tripped on a watermelon display at the Wal-Mart store in Minden, Louisiana. She retrieved a watermelon from the display, and subsequently tripped over a corner of the display as she was walking back to her shopping cart. Ms. Primrose, who was 73 years old at the time of her deposition, sustained a concussion and other serious injuries as a result of the accident.

Ms. Primrose filed suit for damages on September 8, 2010. On October 15, 2012, Wal-Mart filed a motion for summary judgment, and a hearing on the motion was held on December 4, 2012. After reviewing pictures of the area where Primrose tripped and fell, the trial court noted that he “does not see how it’s not open and obvious.” Wal-Mart’s motion was granted.

[15]*15Ms. Primrose now appeals, urging three assignments of error.

LAW AND DISCUSSION

In her first assignment of error, Ms. Primrose asserts that the trial court erred by using summary judgment to determine whether Wal-Mart’s conduct constituted negligence. In the second assignment, Ms. Primrose | ¡¡.asserts that the trial court erroneously determined that “the low protruding corner of the pallet” was open and obvious because that issue should not have been determined by a summary judgment. In her third and final assignment of error, Ms. Primrose argues that the trial court erred in finding that there are no genuine issues of material fact that preclude summary judgment. Since these assignments of error are interrelated, we will address them together to avoid repetition.

Ms. Primrose argues that the following issues of material fact should have precluded summary judgment:

1. Whether the protruding corner of the crate was visible to her under the circumstances presented in this case.
2. Whether the warning written on the side of the box near the protruding corner of the pallet was visible to her from the direction she was walking.
3. Whether the warning provided by Wal-Mart was adequate under circumstances presented in this case.
4. Whether Wal-Mart acted reasonably in not cutting the protruding corners of the pallet off or alternatively in not putting a square box instead of an octagonal shaped box on the square pallet so that the corners of the pallet did not protrude.
5. Whether Wal-Mart acted unreasonably by placing a trash can very near the watermelon display creating a very narrow path to walk by the display causing her to have to walk close to the watermelon display and the protruding corner of the crate.
6.Whether Wal-Mart knew or should have known that the customers’ act of carrying a watermelon back to their cart would obscure their view of the floor and the area near the floor.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Ricks v. City of Monroe, 44,811 (La.App.2 Cir.12/9/09), 26 So.3d 858, writ denied, 2010-0391 (La.5/28/10), 36 So.3d 247. Summary judgment procedure is designed to secure the “just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969.” The procedure is favored and shall be construed to accomplish those ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).

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 mov-ant’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, [16]*16there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

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 Lappropriate. King v. Illinois Nat. Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780; Dowdy v. City of Monroe, 46,693 (La.App.2d Cir.11/2/11), 78 So.3d 791.

Although the summary judgment procedure is favored and must be construed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law, factual inferences reasonably drawn from the evidence nevertheless must be construed in favor of the party opposing the motion, and all doubt must be resolved in favor of the opponent to summary judgment. Ricks, supra; Freeman v. Teague, 37,932 (La.App.2 Cir.12/10/03), 862 So.2d 371.

Merchant liability for slip or trip and fall eases is governed by the Louisiana Merchant Liability Statute, La. R.S. 9:2800.6, which places a heavy burden of proof on plaintiffs in claims against a merchant for damages arising out of a fall on the premises. This statute provides:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. 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 this cause of action, all of the following:
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 notice of the condition which caused the damage, prior to the occurrence.
|s3. The merchant failed to exercise reasonable care. In determining care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone to prove failure to exercise reasonable care.
C.Definitions:

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127 So. 3d 13, 2013 WL 5477234, 2013 La. App. LEXIS 1985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/primrose-v-wal-mart-stores-inc-lactapp-2013.