Scott v. Dillard's, Inc.

169 So. 3d 468, 2015 La. App. LEXIS 511, 2015 WL 1119474
CourtLouisiana Court of Appeal
DecidedMarch 11, 2015
DocketNo. 14-CA-755
StatusPublished
Cited by12 cases

This text of 169 So. 3d 468 (Scott v. Dillard's, 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
Scott v. Dillard's, Inc., 169 So. 3d 468, 2015 La. App. LEXIS 511, 2015 WL 1119474 (La. Ct. App. 2015).

Opinion

SUSAN M. CHEHARDY, Chief Judge.

bOn appeal, plaintiff-customer challenges the summary judgment, dismissing her action for damages against defendant-merchant for a slip-and-fall on defendant’s premises. For the following reasons, we affirm.

Facts and Procedural History

On November 27, 2009, Sylvia Scott, plaintiff-herein, entered the Dillard’s Department Store at Esplanade Mall in Ken-ner, Louisiana to shop its “Black Friday” sale, which began at 8:00 a.m. Upon entering the exterior door at approximately 8:30 a.m., Ms. Scott stepped on a clear plastic “cling” sign that was on the floor, slipped, and fell onto the floor of the vestibule. Although initially Ms. Scott refused medical treatment, she eventually sought medical treatment, including pain management, physical therapy, and surgery.

[470]*470On November 23, 2010, Ms. Scott filed suit against “Dillard’s, Inc., a/k/a Dillard Department Stores, Inc.” for personal injuries that she sustained as a result of her slip-and-fall within their premises. On December 6, 2010, Dillard’s1 answered Ms. Scott’s suit, denying all of her allegations.

[3On June 12, 2012, Dillard’s moved for summary judgment on the basis that Ms. Scott could not bear her burden of proof under La. R.S. 9:2800.6 that Dillard’s created the hazard in question or had actual or constructive notice of the hazard. To its motion for summary judgment, Dillard’s attached excerpts from Ms. Scott’s deposition.

On July 9, 2014, Ms. Scott filed her opposition to Dillard’s motion for summary judgment contending that there clearly existed a genuine issue of material fact as to whether Dillard’s had constructive notice of the hazard in question. To her opposition, Ms. Scott attached her entire deposition; a copy of the front of the “cling” sign and the back of the sign showing one full and one partial footprint; a copy of Dillard’s “Customer Accident Investigation Report” of her fall on November 27, 2009, which included photographs taken by Dillard’s employee, “A. Richardson;” the deposition with exhibits of Dillard’s former employee, Kristina Claudet-Theriot; and depositions without exhibits of Dillard’s representatives, Michael Fuller Jones, Debora Ann Bryant, and David John Luster.

On July 28, 2014, after a hearing, the trial judge, relying on Flowers v. Wal-Mart Stores, Inc., 12-140 (La.App. 5 Cir. 07/31/12), 99 So.3d 696, 697, granted summary judgment in favor of Dillard’s on the basis that Ms. Scott had “failed ... to ... make a positive showing that the sign had been there for some time” and “there was no evidence that Dillard’s created the risk of harm.” Ms. Scott appeals that ruling.

Law and Argument

Standard of Review

1 On appeal, our review of summary judgments is de novo, using “the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the | ¿mover is entitled to judgment as a matter of law.” Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773, 776; Robinson v. Jefferson Parish Sch. Bd., 08-1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The procedure is favored and shall be construed to accomplish these ends. Robinson, supra. The version of La. C.C.P. art. 966(B)(2)2 in [471]*471effect at the time of the summary judgment hearing provided,3 “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

Ordinarily, the movant bears the burden of proof on a motion for summary judgment. La. C.C.P. art. 966(C)(2). If the movant meets this initial burden, the burden then shifts to the adverse party to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Champagne, supra at 776-77; Robinson, supra at 1043. Thereafter, if the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. Id. The decision as to the |fipropriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Muller v. Carrier Corp., 07-770 (La.App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

Substantive Law

On appeal, Ms. Scott argues that the trial court erred in granting Dillard’s motion for summary judgment as there exist genuine issues of material fact regarding whether Dillard’s had “constructive notice” of the hazard in question and whether Dillard’s exercised reasonable care in inspecting its premises before opening that day.

In slip-and-fall cases, the plaintiff bears the initial burden of proving each element of her cause of action under La. R.S. 9:2800.6(B). White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081,1082.

La. R.S. 9:2800.6 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 his 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.
(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.

[472]*472|fiC. Definitions:

(1) ‘Constructive notice’ means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) ‘Merchant’ means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business.

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169 So. 3d 468, 2015 La. App. LEXIS 511, 2015 WL 1119474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-dillards-inc-lactapp-2015.