STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
19-669
RICHARD FOUNTAIN
VERSUS
WAL-MART STORES, INC. AND/OR WAL-MART LOUISIANA, LLC
**********
ON APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 260,183 HONORABLE GEORGE C. METOYER, DISTRICT JUDGE
JONATHAN W. PERRY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Van H. Kyzar, and Jonathan W. Perry, Judges.
AFFIRMED. Brian M. Caubarreaux Emily Gremillion Wesley K. Elmer Brian Caubarreaux and Associates 144 W. Tunica Drive Marksville, LA 71351 (318) 253-0900 COUNSEL FOR APPELLANT: Richard Fountain
R. O’Neal Chadwick, Jr. Gregory B. Odom, II Sara B. Dantzler CHADWICK & ODOM, LLC P. O. Box 12114 Alexandria, LA 71315 (318) 445-9899 COUNSEL FOR APPELLEE: WAL-MART STORES, INC. AND/OR WAL-MART LOUISIANA, LLC PERRY, Judge.
Plaintiff, Richard Fountain (hereinafter “Mr. Fountain”), appeals a summary
judgment in favor of defendant, Wal-Mart Louisiana, LLC (hereinafter “Wal-
Mart”), dismissing his negligence claim. For the reasons stated herein, we affirm.
FACTS AND PROCEDURAL BACKGROUND
This case involves Mr. Fountain’s slip and fall on December 3, 2016, at the
Wal-Mart store on North Mall Drive in Alexandria, Louisiana. Rain was falling at
the time Mr. Fountain and his wife Candice (hereinafter “the Fountains”) entered the
store. After the Fountains shopped for groceries for thirty to forty minutes, they
proceeded to the Garden Center, looking for charcoal lighter fluid. When they could
not find it, Mr. Fountain approached the cashier and asked where the lighter fluid
might be found. The cashier told Mr. Fountain that the lighter fluid had been moved
to the other side of the store. When Mr. Fountain turned to leave the Garden Center,
he slipped and fell in a puddle of water.
On the date of the accident, Mary Jo Justice (hereinafter “Ms. Justice”), the
Garden Center manager, was in the area where Mr. Fountain fell. Although she did
not witness the accident, she saw Mr. Fountain lying on the ground in the interior
part of the Garden Center between the registers and the entrance. She informed
Tiffany Mason Melvin (hereinafter “Ms. Melvin”), an assistant manager at the Wal-
Mart store, of Mr. Fountain’s fall.
When Ms. Melvin arrived at the scene of the fall, she saw Mr. Fountain on the
ground, approximately ten to twelve feet from the Garden Center registers and away
from the entrance. According to Ms. Melvin, Mr. Fountain told her he had seen
someone shake an open umbrella in the area of the fall. Ms. Melvin identified the
puddle of water involving Mr. Fountain’s fall as being in an area approximately six
to eight feet in one direction and eight to ten feet in the other direction, and there were other water drippings scattered about that area of the store. Ms. Melvin
estimated that the puddle in which Mr. Fountain fell was about the size of a football
and contained about a quarter to a half cup of water.
Mr. Fountain testified that the water was clear, that he had not walked in that
area before the fall, and that he had not seen the water before he fell. He estimated
the puddle was eight inches by a foot and a half. Although Mr. Fountain did not
examine the puddle for other footprints or buggy tracks because he passed out in the
fall, he did state there was a skid mark through it where his foot slipped.
According to Ms. Melvin, Mr. Fountain informed her that when he asked the
unidentified woman to close her umbrella, the woman told him the umbrella was
broken and could not close. Ms. Justice gave a nuanced version, stating at first that
Mr. Fountain said he walked behind a woman with an opened umbrella and that she
shook it inside the store; she then stated that Mr. Fountain told her the water in which
he slipped was from this woman’s umbrella. Mr. Fountain denied the assertions Ms.
Melvin and Ms. Justice made about where he encountered this woman with the
umbrella and further denied that it was the water from the unidentified woman’s
umbrella that formed the puddle where he fell. Rather, he asserted that the woman
was farther inside the store when he addressed her.
Mr. Fountain filed suit against Wal-Mart. After Wal-Mart answered the suit
and both parties conducted discovery, Wal-Mart moved for summary judgment. In
its motion for summary judgment, Wal-Mart asserted that Mr. Fountain failed to
present evidence that it created the condition responsible for his fall or that it had
constructive notice of it. Mr. Fountain opposed Wal-Mart’s motion for summary
judgment, contending that although Wal-Mart may not have initially caused the
slippery condition, it was immediately aware of the condition and failed to remedy
it. The trial court granted Wal-Mart’s motion for summary judgment,
2 acknowledging the almost impossible conditions for a plaintiff to prove actual and
constructive notice in suits against merchants for falls on their premises and the
favored position of summary judgment.
Mr. Fountain devolutively appeals, urging two assignments of error. He
contends that the trial court erred: (1) when it granted Wal-Mart’s motion for
summary judgment on liability where the evidence presented in opposition to the
motion revealed that genuine issues of material fact exist regarding Wal-Mart’s
actual and constructive notice of the water on the floor, the amount of time the water
was present on the floor, and its failure to follow its own policies and procedures
which led to the existence of and failure to remedy the condition that caused his fall;
and (2) when it considered the affidavit of Ms. Justice and granted the motion for
summary judgment filed by Wal-Mart, as that affidavit was not based on the affiant’s
own personal knowledge and contradicted her sworn deposition testimony.
DISCUSSION
Appellate courts review summary judgments de novo using the same criteria
that govern the trial court’s consideration of whether summary judgment is
appropriate, i.e., whether there is any genuine issue of material fact and whether the
movant is entitled to judgment as a matter of law. Samaha v. Rau, 07-1726 (La.
2/26/08), 977 So.2d 880. On a motion for summary judgment, the mover bears the
burden of proof; however, if the mover will not bear the burden of proof at trial on
the issue before the court on the motion for summary judgment, the mover’s burden
on the motion does not require that all essential elements of the adverse party’s
claim, action, or defense, be negated. Instead, the mover must 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. Thereafter, the adverse party must produce factual
evidence sufficient to establish the existence of a genuine issue of material fact or
3 that the mover is not entitled to judgment as a matter of law. La.Code Civ.P. art.
966(D)(1).
To reverse the trial court’s decision, this court would have to find on de novo
review that the record reveals a genuine issue of material fact which precludes
summary judgment as a matter of law. White v. Louisiana Dep’t of Transp. & Dev.,
18-741 (La.App. 3 Cir. 3/13/19), 269 So.3d 1031, writ denied, 19-0572 (La.
5/28/19), 273 So.3d 311. A fact, for summary judgment purposes, “is material if it
potentially insures or precludes recovery, affects a litigant’s ultimate success, or
determines the outcome of the legal dispute.” Hines v. Garrett, 04-806, p. 1 (La.
6/25/04), 876 So.2d 764, 765 (per curiam). An issue, for summary judgment
purposes, is genuine if “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.” Id. at 765-66.
Despite the legislative mandate that summary judgment procedure is now
favored, factual inferences reasonably drawn from the evidence must be construed
in favor of the party opposing the motion, and all doubt must be resolved in the
opponent’s favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049. See
also Independent Fire Ins. Co. v. Sunbeam Corp., 99–2181, 99–2257, p. 17 (La.
2/29/00), 755 So.2d 226, 236 (noting the court “must draw those inferences from the
undisputed facts which are most favorable to the party opposing the motion”).
A genuine issue is a triable issue. Brown v. Amar Oil Co., 11-1631 (La.App.
1 Cir. 11/8/12), 110 So.3d 1089. Because it is the applicable substantive law that
determines materiality, whether a particular fact in dispute is material can be seen
only in light of substantive law applicable to the case. Hall v. Our Lady of the Lake
R.M.C., 06-1425 (La.App. 1 Cir. 6/20/07), 968 So.2d 179. Thus, to determine
4 whether the trial court’s grant of summary judgment was proper, this court must look
to the applicable substantive law.
In Louisiana, “every act . . . of man that causes damage to another obliges him
by whose fault it happened to repair it.” La.Civ.Code art. 2315(A). Under
Louisiana’s “standard negligence analysis”—the “duty-risk analysis”—a plaintiff
must prove five elements: first, that the defendant had a duty to conform his conduct
to a specific standard (duty); second, that the defendant’s conduct failed to conform
to the appropriate standard (breach); third, that the defendant’s substandard conduct
was a cause in fact of the plaintiff’s injuries (cause in fact); fourth, that the
defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (legal
cause); and fifth, that the plaintiff suffered actual damages (damages). Lemann v.
Essen Lane Daiquiris, Inc., 05-1095 (La. 3/10/06), 923 So.2d 627.
However, for “merchants” like Wal–Mart, La.R.S. 9:2800.6 alters this
analysis. See Thompson v. Winn–Dixie Montgomery, Inc., 15-577 (La. 10/14/15),
181 So.3d 656. Merchants “owe[ ] a duty . . . to exercise reasonable care to keep
[their] aisles, passageways, and floors in a reasonably safe condition,” which
“includes a reasonable effort to keep the premises free of any hazardous conditions
which reasonably might give rise to damage.” La.R.S. 9:2800.6(A). When someone
sues a merchant for damages “as a result of an injury . . . or loss sustained because
of a fall due to a condition existing in or on [the] premise,” the plaintiff must prove
“in addition to all other elements of [the] cause of action”:
(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[; and]
(3) The merchant failed to exercise reasonable care.
5 La.R.S. 9:2800.6(B); see also Thompson, 181 So.3d at 662. The failure to prove any
of the requirements of La.R.S. 9:2800.6(B) is fatal to the claimant’s cause of action.
White v. Wal-Mart Stores, Inc., 97-393 (La. 9/9/97), 699 So.2d 1081.
To prove that a merchant had “constructive notice” of a condition1 before the
injury-causing occurrence, the plaintiff must “prove[ ] that the condition existed for
such a period of time that it would have been discovered if the merchant had
exercised reasonable care.” La.R.S. 9:2800.6(C)(1). In other words, the plaintiff
“must come forward with positive evidence showing that the damage-causing
condition existed for some period of time, and that such time was sufficient to place
the merchant defendant on notice of its existence.” White, 699 So.2d at 1082.
“Though there is no bright line time period . . . [a] claimant who simply shows that
the condition existed” without also showing “that the condition existed for some
time before the fall has not carried the burden of proving constructive notice as
mandated by the statute.” Id. at 1084. According to the supreme court, “[t]he statute
does not allow for the inference of constructive notice absent some showing of this
temporal element.” Id. “Because it is the claimant’s burden to prove [the spill’s]
existence for some period of time, the absence of evidence . . . is fatal to the
claimant’s cause of action.” Id. at 1086.
In White, 699 So.2d 1081, Kennedy v.Wal-Mart Stores, Inc., 98-1939 (La.
4/13/99), 733 So.2d 1188, and Babin v. Winn-Dixie Louisiana, Inc., 00-078 (La.
5/30/00), 764 So.2d 37, the supreme court addressed the “temporal” element of the
statute, which requires that the plaintiff show that the condition existed for “some
period of time.” These Courts held that the plaintiffs could not meet their burden of
proof because they presented no evidence at all of this critical temporal element. See
1 Mr. Fountain advanced no argument that Wal-Mart created the condition that caused the damage. For a recent case that addresses such an argument see Lewis v. Wal-Mart Stores, Inc., 53,207 (La.App. 2 Cir. 1/15/20), ___So.3d ___. 6 White, 699 So.2d at 1086 (“Plaintiff presented absolutely no evidence that the liquid
was on the floor for any length of time.”); Babin, 764 So.2d at 40 (“Despite his
speculation that the condition may have existed for some period prior to his fall,
plaintiff is clearly unable to make a positive showing.”); Kennedy, 733 So.2d at 1191
(“[P]laintiff presented absolutely no evidence as to the length of time the puddle was
on the floor before his accident.”). These courts, therefore, did not reach the second
issue outlined in La.R.S. 9:2800.6(C)(1) of whether the condition “would have been
discovered if the merchant had exercised reasonable care.” According to the
supreme court in White, “[w]hether the period of time is sufficiently lengthy that a
merchant should have discovered the condition is necessarily a fact question.” White,
699 So.2d at 1084.
Proof of the temporal element of La.R.S. 9:2800.6 may be made by both direct
and circumstantial evidence. Birdsong v. Hirsch Meml. Coliseum, 39,101 (La.App.
2 Cir. 12/15/04), 889 So.2d 1232; Lewis v. Jazz Casino Co., L.L.C., 17-0935 (La.
App. 4 Cir. 4/26/18), 245 So.3d 68, 74–75, writ denied, 28-0757 (La. 9/21/18), 252
So.3d 877. Thus, “[a] plaintiff is not required to prove by eyewitness testimony that
the hazardous condition existed for a certain number of minutes prior to the fall.”
Beggs v. Harrah’s New Orleans Casino, 14-0725, p. 10 (La.App. 4 Cir. 1/21/15),
158 So.3d 917, 923; see also Davis v. Cheema, Inc., 14-1316 (La.App. 4 Cir.
5/22/15), 171 So.3d 984. Circumstantial evidence is “evidence of one fact, or of a
set of facts, from which the existence of the fact to be determined may reasonably
be inferred.” Smith v. Toys “R” Us, Inc., 98-2085, p. 7 (La. 11/30/99), 754 So.2d
209, 213.
Mr. Fountain makes a threefold argument as to there being a genuine issue of
material fact relative to Wal-Mart’s knowledge of the presence of the water.
Initially, he contends a Wal-Mart employee told him the water on the floor where he
7 slipped came from a lady who came in and shook a broken umbrella in the store; this
Mr. Fountain contends shows Wal-Mart’s knowledge of the water prior to his fall.
Initially, we note that Mr. Fountain’s self-serving depositional testimony and his
reliance on a hearsay statement from an unidentified Wal-Mart worker is insufficient
to establish Wal-Mart’s constructive notice. Brown v. Jazz Casino Co., LLC, 18-
913 (La.App. 4 Cir. 5/1/19), ___ So.3d ___. Moreover, “[m]ere conclusory
allegations, improbable inferences and unsupported speculation will not support a
finding of a genuine issue of material fact.” Sears v. Home Depot, USA, Inc., 06-
201, p. 12 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228, writ denied, 06-2747
(La. 1/26/07), 948 So.2d 168. Even if contained in a deposition, such inferences,
allegations and speculation are insufficient to satisfy the opponent’s burden of proof.
Richard v. Liberty Mut. Ins. Co., 13-26 (La.App. 3 Cir. 10/9/13), 123 So.3d 345.
Thus, Mr. Fountain’s argument in this regard lacks merit.
Next, Mr. Fountain argues that Ms. Melvin’s approximation of the large area
dotted with water, six to eight feet in one direction and eight to ten feet in the other,
indicates that Wal-Mart knew or should have known of the water on the floor before
the accident. Evidence that the hazard was there at the time of the fall is insufficient
to carry a plaintiff’s burden of proof. Bassett v. Toys “R” Us Delaware, Inc., 36,434
(La.App. 2 Cir. 12/30/02), 836 So.2d 465. Furthermore, the store is under no
obligation to step up and explain; rather, an additional time period must be shown
by the plaintiff. Id. As observed in Kennedy, 733 So.2d at 1191, it is incumbent
upon the plaintiff to put forth “evidence as to the length of time the puddle was on
the floor before his accident.” Mr. Fountain’s sole observation of the puddle that
caused his fall was that it contained the skid mark of his foot as it slipped through it;
there was no evidence of water discoloration or the presence of buggy tracks through
8 the puddle from which the temporal requirement might be established. Thus, in light
of the jurisprudence, Mr. Fountain’s argument lacks merit.
Lastly, Mr. Fountain contends that video surveillance of the area where the
accident occurred revealed that numerous people came into the store from the rain
and that they could have tracked the water into the store during the forty minutes to
an hour prior to the accident. His argument continues that despite that, no Wal-Mart
employee addressed the water condition as required by the store’s own policies and
procedures. Accordingly, he argues that Wal-Mart’s knowledge of the rain and
shoppers entering the building established the temporal element needed to establish
constructive knowledge.
In support of his contention, Mr. Fountain relies primarily on four appellate
court cases, all involving rain: Ward v. ITT Specialty Risk Services, Inc., 31,990
(La.App. 2 Cir. 6/16/99), 739 So.2d 251, writ denied, 99-2690 (La. 11/24/99), 750
So.2d 987; Barton v. Wal-Mart Stores, Inc., 97-801 (La.App. 3 Cir. 12/10/97), 704
So.2d 361; Oalmann v. K-Mart Corp., 630 So.2d 911 (La.App. 4 Cir. 1993), writ
denied, 94-244 (La. 3/18/94), 634 So.2d 859; and Laborde v. Winn Dixie Louisiana,
Inc., 563 So.2d 994 (La.App. 4 Cir.), writ denied, 568 So.2d 1062 (La.1990).
From the outset, we find Ward, 739 So.2d 251, is distinguishable. Although
store policies and procedure for rainy days were an essential part of that case, those
issues addressed whether the plaintiff carried her burden of proving that the
defendant failed to exercise reasonable care. As noted in the appellate court
decision, it was “undisputed that the defendant had actual notice of the condition
that caused the damage, prior to the occurrence” as “shown by the manager’s
admission that he saw the water at the front of the store and called for a mop to clean
it up just prior to the accident.” Id. at 255. Similarly, in Barton, 704 So.2d 361, and
Laborde, 563 So.2d 994, although constructive notice was discussed in passing, the
9 crucial issue of these two cases was whether the plaintiff’s injuries were caused by
an unreasonably dangerous condition in the store. Thus, they, too, are
distinguishable.
Mr. Fountain’s reliance on Oalmann, 630 So.2d 911, requires analysis and
exposition. In Oalmann, the fourth circuit affirmed judgment in favor of an injured
plaintiff who slipped and fell, claiming the merchant had constructive notice of a
puddle of rainwater on the store’s entrance floor. In Oalmann, 630 So.2d at 913, the
Fourth Circuit, addressing whether the “merchant either created or had actual or
constructive notice of the condition which caused the damage, prior to the
occurrence[,]” stated:
Mrs. Oalmann testified that it had been raining on the day of her fall. K–Mart does not controvert this fact.... Thus, K–Mart did have knowledge of the weather conditions on the day of the accident. Consequently, K–Mart should have known that the rain would cause the floor where the accident occurred to become wet and slippery. The evidence does not clearly establish precisely how long the floor was wet prior to Mrs. Oalmann’s fall. Considering the volume of business conducted at a large retail store such as the K–Mart in Meraux and the constant influx of customers, it is foreseeable that the floor near an entrance would become wet, and thus slippery, in a relatively short period of time. It is the opinion of the Court that the accumulation of water at the entrance existed for such a time that K–Mart should have discovered the danger. Given the totality of the circumstances, the Court finds that K–Mart had the requisite constructive notice of the wet floor which caused the fall.
When the Louisiana Supreme Court decided White, 690 So.2d 1081,2 it
expressly stated that it was not an impossible burden to require “the claimant prove
2 In White, the Louisiana Supreme Court overruled Welch v. Winn-Dixie Louisiana, Inc., 94-2331 (La. 5/22/95), 655 So.2d 309. Welch was summarized in White, 699 So.2d at 1084, as follows:
In Welch, this Court concluded that a claimant had carried her burden of proving constructive notice by showing the absence of “written inspection procedures,” the lack of “written documentation of the performance of inspections,” and the lack of “company directives on a consistent inspection policy,” and because the fact-finder could have disbelieved the defendant’s positive evidence of the lack of a spill some minutes before the fall.
It then stated: 10 the condition existed for some time period prior to the fall.” Id.I at 1084. In
particular, it referred to Oalmann in a footnote as an “example . . . where the claimant
did carry the burden of showing actual or constructive notice.” See Id. at 1085, n. 4.
However, in Kennedy, 733 So.2d 1188, without any discussion of Oalmann,
the supreme court reversed a judgment in which the trial and appellate courts
determined that Wal-Mart had constructive notice. In making that determination,
the Kennedy court referenced the trial court’s reasons for judgment which stated:
In the case at bar this plaintiff has proved constructive, if not actual, notice on the part of the defendant. When Mr. Kennedy got up from the floor his clothing was wet thus indicating more than a small spot of dampness. It was also raining that day. Since the customer service manager and the cashier were within a few feet of where Mr. Kennedy fell and it was raining that day, they knew or should have known that wet footed customers were likely to create a hazard. They certainly were in a better position to know than Mr. Kennedy, and they clearly had a good close-up look at the area where he fell before he arrived there.... [T]he court accepts the facts as testified to by the plaintiff’s witnesses and finds that the plaintiff has made a prima facie case of constructive notice.
Id. at 1190, n. 1. The Kennedy court rejected the trial and appellate courts’ reasoning
and then concluded, stating “plaintiff presented absolutely no evidence as to the
length of time the puddle was on the floor before his accident. Therefore, plaintiff
did not carry his burden of proving Wal-Mart’s constructive knowledge of the
condition.” Id. at 1191.
Although at first blush it would appear that the intermediate court’s decision
in Oalmann is factually analogous and supportive of Mr. Fountain’s argument, it is
Because La. R.S. 9:2800.6(B) clearly and unambiguously requires the claimant to prove each of its three subsections with no shifting of the burden, and because in order to prove constructive notice the statute clearly and unambiguously requires that the claimant prove that the damage causing condition existed for some period of time prior to the occurrence, we overrule Welch, 655 So.2d 309, which allowed for a finding of constructive notice absent a showing that the condition existed for some period of time prior to the occurrence and which provided for a shifting of the burden to the defendant merchant to prove it exercised reasonable care.
White, 699 So.2d at 1085. 11 evident that Kennedy, a case whose facts closely parallel those of Oalmann,
contradicts White’s earlier footnoted reference to Oalmann as an example of a
plaintiff who carried the burden of showing actual or constructive notice. Clearly,
under Kennedy, any evidence that it was raining, that an area in which a fall occurred
was visible to store personnel, and/or that Wal-Mart should have foreseen the hazard
created by rain puddles at or near the entrance of this high volume store because it
knew it was raining, is insufficient to support a finding that it had constructive notice.
See Kennedy, 733 So.2d 1188; Alexander v. Wal-Mart Stores, Inc., 96-1598
(La.App. 3 Cir. 2/4/98), 707 So.2d 1292, writ denied, 98-572 (La. 4/24/98), 717
So.2d 1169 (employee “greeter” standing in entryway in rainy weather and
intermittently dry-mopping are insufficient to infer actual or, absent time evidence,
constructive notice of dangerous condition). Similarly, even the lack of a specific
plan to warn customers of a wet floor is irrelevant when the plaintiff fails to produce
evidence that defendant had any notice of the liquid’s presence on the floor prior to
the fall. Boeshans v. Petsmart, Inc., 06-606 (La.App. 5 Cir. 1/16/07), 951 So.2d
414. Simply stated, for reasons addressed in Kennedy, our de novo review of the
record reveals Mr. Fountain failed to present evidence as to the length of time the
puddle was on the floor prior to the accident. Therefore, he did not carry his burden
of proving that Wal-Mart had constructive knowledge of the condition.
For the foregoing reasons, we find the trial court properly granted summary
judgment in favor of the defendant, Wal-Mart, dismissing the suit of Mr. Fountain
with prejudice. Costs of this appeal are assessed to Mr. Fountain.
AFFIRMED.