Trench v. Winn-Dixie Montgomery LLC

150 So. 3d 472, 2014 La.App. 5 Cir. 152, 2014 La. App. LEXIS 2275, 2014 WL 4723866
CourtLouisiana Court of Appeal
DecidedSeptember 24, 2014
DocketNo. 14-CA-152
StatusPublished
Cited by28 cases

This text of 150 So. 3d 472 (Trench v. Winn-Dixie Montgomery LLC) 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
Trench v. Winn-Dixie Montgomery LLC, 150 So. 3d 472, 2014 La.App. 5 Cir. 152, 2014 La. App. LEXIS 2275, 2014 WL 4723866 (La. Ct. App. 2014).

Opinion

HANS J. LILJEBERG, Judge.

| ¡¡Plaintiff, Shirley Trench, appeals a summary judgment granted in favor of defendant, Winn-Dixie Montgomery, L.L.C. (“Winn-Dixie”), dismissing plaintiffs claims against it. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 23, 2011, Shirley Trench was shopping at a Winn-Dixie store in Gramer-cy, Louisiana, when she fell while walking in the area of the meat department. On June 13, 2011, Ms. Trench filed suit against Winn-Dixie, claiming that the floor was slippery, causing her to fall and sustain injuries to her lower back, neck, knees and right arm. In her petition, Ms. Trench contends that Winn-Dixie is liable for the damages she sustained, because it allowed a “greasy/wet/slippery condition” to exist on its premises which created an unreasonable risk of harm and caused her damages. In response to Ms. Trench’s petition for damages, Winn-Dixie filed an answer, generally denying Ms. Trench’s allegations and asserting that the fall and resulting damages were caused by Ms. Trench’s own negligence.

IsOn July 10, 2013, Winn-Dixie filed a motion for summary judgment, asserting that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Winn-Dixie claims that Ms. Trench cannot carry her burden of proof, as there is no evidence that an unreasonably dangerous condition existed on the Winn-Dixie premises or that Winn-Dixie had notice of any alleged defective condition prior to the incident in question. In support of its motion for summary judgment, Winn-Dixie submitted several exhibits, including the depositions of Shirley Trench and a witness, Lloyd Bartley, affidavits from two Winn-Dixie employees, Theo St. Amant and John David Anders, a surveillance video of the incident, and photographs from the surveillance video.

In Ms. Trench’s deposition, she testified that it was slippery in the area where she fell, but she does not know why it was slippery. She stated that one of the managers said the floor had just been waxed and they had put too much wax on the floor. Ms. Trench testified that she did not know how long the floor had been slippery or whether or not any other customers had problems walking in that area.

In Lloyd Bartley’s deposition, he testified that he and his wife were acquaintances of Ms. Trench and they were shopping at Winn-Dixie when the incident occurred. He stated that he saw Ms. Trench fall “out of the corner of [his] eye,” but he did not see how she fell and could not describe how she fell. Mr. Bartley testified that the floor was shiny and slippery with a “sparkling, clean, waxed, military-like floors, glare,” but he and his wife had no problems walking on it. He further stated that he heard a Winn-Dixie employee or manager at the scene say that he did not see anything that Ms. Trench could have slipped on. Mr. Bartley testified that he did not hear [474]*474the employee say that there was too much wax on the floor, but the employee said that they wax or buff the floor every night, |4which could have caused the fall. Mr. Bartley noted that there was a skid mark on the floor where Ms. Trench fell.

In Theo" St. Amant’s affidavit, he stated that he was the manager at Winn-Dixie on the night of the incident. He inspected the area where Ms. Trench fell and saw absolutely nothing on the floor, including no water, wax, or any other foreign substance. Mr. St. Amant further stated that he never told Ms. Trench or anyone else that she may have slipped because the floor had been recently waxed and too much wax could have been used.

In John David Anders’ affidavit, he stated that he was a stock clerk at Winn-Dixie on the night of the incident. Mr. Anders inspected the area where Ms. Trench fell and saw nothing on the floor that could have caused her to fall.

In its motion for summary judgment, Winn-Dixie argued that there is a lack of factual support for Ms. Trench’s claims, because Ms. Trench admitted in her deposition that she does not know what caused her to fall, and there is no evidence that any unreasonably dangerous condition existed. Winn-Dixie further asserted that Ms. Trench’s argument that she may have fallen due to excess wax on the floor is not factual support for her claims; rather, it is mere speculation. Winn-Dixie also noted that the surveillance video does not show that any other customer had a problem traversing the area where Ms. Trench fell either before or after this incident.

Ms. Trench filed a memorandum in opposition to Winn-Dixie’s motion for summary, asserting that there are genuine issues of material fact as to whether or not the floor at Winn-Dixie was slick and dangerous due to excess wax and created an unreasonable risk of harm. Along with her opposition memorandum, Ms. Trench submitted the portion of her deposition in which she testified that the manager of Winn-Dixie told her that the floor had just been waxed and that too |fimuch wax had been used. She also submitted pages from Mr. Bartley’s deposition in which he noted that there was a skid mark where Ms. Trench fell, that a Winn-Dixie employee said the floor was waxed or buffed every night, and the wax could have caused the fall. Finally, Ms. Trench noted that the photographs of the aisle where she fell show a floor that is highly reflective of the ceiling lights, and she suggests that this is indicative of a high level of wax on the floor that would cause a slippery surface.

On November 4, 2013, Winn-Dixie’s motion for summary judgment came before the trial court for hearing. At the conclusion of the hearing, the trial 'court took the matter under advisement and indicated that it would review the video of the incident and consider the deposition testimony submitted. Thereafter, on November 21, 2018, the trial court rendered a judgment in favor of Winn-Dixie, granting its motion for summary judgment and dismissing Ms. Trench’s claims against it. The trial court issued written reasons for judgment on January 13, 2014, finding that there was “simply no competent evidence of an unreasonably dangerous condition.” Ms. Trench appeals the summary judgment granted in favor of Winn-Dixie.

LAW AND DISCUSSION

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Prince v. K-Mart Corp., 01-1151, p. 7 (La.App. 5 Cir. 3/26/02), 815 So.2d 245, 248; Duncan v. U.S.A.A. Ins. Co., 06-363, p. 3 (La.11/29/06), 950 So.2d 544, 547. A motion for summary judgment should be [475]*475granted “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 | amover is entitled to judgment as a matter of law.” La. ’C.C.P. art. 966(B)(2). The summary judgment procedure is favored, and shall be construed to secure the just, speedy, and inexpensive determination of most actions. La. C.C.P. art. 966(A)(2); Nuccio v. Robert, 99-1327, p. 6 (La.App. 5 Cir. 4/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544.

The party moving for summary judgment bears the burden of proof. La. C.C.P. art. 966(C)(2).

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Bluebook (online)
150 So. 3d 472, 2014 La.App. 5 Cir. 152, 2014 La. App. LEXIS 2275, 2014 WL 4723866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trench-v-winn-dixie-montgomery-llc-lactapp-2014.