Santos v. Dollar Mania, Inc.

197 So. 3d 701, 2016 La. App. LEXIS 1204, 2016 WL 3414817
CourtLouisiana Court of Appeal
DecidedJune 22, 2016
DocketNo. 50,481-CA
StatusPublished
Cited by1 cases

This text of 197 So. 3d 701 (Santos v. Dollar Mania, 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
Santos v. Dollar Mania, Inc., 197 So. 3d 701, 2016 La. App. LEXIS 1204, 2016 WL 3414817 (La. Ct. App. 2016).

Opinions

WILLIAMS, J.

hThe plaintiffs, Wilkie Santos and Ashley Santos, individually and as parents of their minor child, Payten Santos, appeal a summary judgment in favor of the defendant, Dollar Mania, Inc. For the following reasons, we reverse and remand.

[702]*702FACTS

On July 18, 2013, while shopping for school uniforms with her three children, Ashley Santos went to a Dollar Mania store located in Bossier City. Ashley’s youngest daughter, Payten, was four years old at the time and weighed approximately 45 pounds. In the store, Payten and another child began playing with belts, which were displayed on five individual racks that were not tied together. The store security video shows that Payten first lifted several belts and let them go. Then she grabbed more belts, lifted them and let them go. At this point, the store video shows that the belt rack wobbled, but remained upright. Finally, the child gathered a larger number of belts in her arms, lifted them and then released them. The belt rack began falling and Payten raised her hands in an attempt to prevent the rack from tipping over. The rack fell on top of Payten and one of the belt hooks punctured her cheek.

The plaintiffs, Wilkie Santos and Ashley Santos, individually and as parents of their minor child, Payten Santos, filed a petition for damages against the defendant, Dollar Mania, Inc. Following discovery, the defendant filed a motion for summary judgment, along with the store video of the accident and an engineer’s report. The plaintiffs filed an opposition. After a hearing, the district court initially rendered a judgment that simply [2granted defendant’s motion for summary judgment. Subsequently, the district court rendered an amended judgment granting summary judgment in favor of the defendant and dismissing the plaintiffs’ claims. The plaintiffs appeal the amended judgment.

DISCUSSION

The plaintiffs contend the district court erred in granting summary judgment in favor of the defendant. Plaintiffs argue that summary judgment is not appropriate because an issue of material fact exists as to whether the defendant satisfied its duty to keep the premises reasonably safe.

A merchant owes a duty to persons using his premises to exercise reasonable care to keep his aisles and passageways 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. LSA-R.S. 9:2800.6(A). In a falling merchandise case, the plaintiff must prove that (1) he did not cause the merchandise to fall, (2) another customer in the aisle at that moment did not cause the merchandise to fall, and (3) the merchant’s negligence caused the accident. Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84. The customer must show that either a store employee or another customer caused the merchandise to be in a precarious position subject to fall. Davis, supra; Stepherson v. Wal-Mart Stores, Inc., 34,547 (La App.2d Cir. 4/4/01), 785 So.2d 950.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Argonaut Great Central Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.6/3/09), 13 So.3d 1209, writ denied, 2009-1491 (La.10/2/09), 18 So.3d 122; Whitaker v. City of Bossier City, 35,972 (La.App.2d Cir.4/5/02), 813 So.2d 1269. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

The burden of proof remains with the mover. However, if the mover will not [703]*703bear the burden of proof at trial on the matter before the court, then the mover is not required to negate every essential element 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 or defense. If the adverse party fails to produce factual support to show that he will be able to satisfy his evidentiary burden of proof at trial, then there is no genuine issue of material fact. LSA-C.C.P. art. 966(C).

In the present case, the plaintiffs presented the deposition testimony of the defendant’s representative, Fadee Musa, who testified that when the belt racks were pushed together to save space, the store’s practice was to tie the racks to each other. Musa stated that the store employees used plastic cinch ties or wire to ' secure the racks together. Musa testified that it is very common for parents to bring their children into the store, particularly during the back-to-school shopping season, when the accident occurred.

Gregory Madison, a longtime employee of defendant, testified by Udeposition that he always tied the belt racks together for safety, stability and to make a neat appearance. When asked why, at the time of the incident, the belt racks had not been tied, together with cinch ties pursuant to defendant’s policy, Madison surmised that he must have been busy unloading a truck or working elsewhere and did not have a chance to secure the racks together. Madison testified that while working he often saw children in the store and had seen some of them playing with the belts on prior occasions.

In support of summary judgment, the defendant submitted the affidavit of Gary Fenner, an engineer, who testified that he had examined the belt rack involved in. the accident and a number of similar belt racks. Based on his examination, Fenner concluded that the belt rack at issue is designed to be a free standing structure and not attached to adjoining belt racks. He stated that the center of gravity (or “centroid”) of a .fully loaded belt rack is located at 2.75 inches from the center line so that the, rack is a stable structure. Based on his findings and review of the store surveillance video, Fenner opined that the accident occurred when the girl gathered a number of belts and brought them outward toward the front of the rack, shifting the center of gravity across the front legs of the rack and, causing the belt rack to fall. Fenner also prepared a report in which he calculated that based on an average weight of three pounds per 10 belts, approximately 60- pounds of force was required to - pull oyer a substantially full belt rack.

In his deposition, Fenner testified that when he examined the belt racks in the store after the accident, the racks were secure because they were tied. together. Fenner estimated the belt rack weighed approximately 144 Impounds when fully loaded as at the time of the accident. He initially stated that he believed the girl had fallen and was hanging onto the rack when it toppled onto her. After viewing the video again, Fenner acknowledged that the girl had not fallen, but had pulled a number of belts forward and that this movement of belts had destabilized the rack. Fenner opined that placing the belt racks back to back ahd tying them1 together would increase the rack’s footprint and increase its stability. He explained that expanding the footprint would increase the rack’s resistance to falling. Fenner testified that although the belt rack was not designed to be tied- to other belt racks, if defendant tied the racks together as a regular practice then such a measure would increase consumer safety. Fenner [704]

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Bluebook (online)
197 So. 3d 701, 2016 La. App. LEXIS 1204, 2016 WL 3414817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/santos-v-dollar-mania-inc-lactapp-2016.