WILLIE BEATRICE SMITH NO. 24-CA-18
VERSUS FIFTH CIRCUIT
WALMART INC. AND XYZ INSURANCE COURT OF APPEAL COMPANY STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 816-749, DIVISION "L" HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING
December 05, 2024
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and John J. Molaison, Jr.
AFFIRMED SJW MEJ JJM COUNSEL FOR PLAINTIFF/APPELLANT, WILLIE BEATRICE SMITH Pius A. Obioha Joseph R. Barbie, Sr.
COUNSEL FOR DEFENDANT/APPELLEE, WALMART INC. Christopher James-Lomax Peter S. Martin WINDHORST, J.
In this slip and fall case, Willie Beatrice Smith, plaintiff/appellant, appeals the
trial court’s July 13, 2023 judgment, granting Walmart, Inc.’s, defendant/appellee,
motion for summary judgment and dismissing plaintiff’s claim with prejudice. We
affirm the trial court’s judgment.
PROCEDURAL HISTORY
On April 16, 2021, plaintiff filed a petition for damages, alleging that she
tripped and fell at a Walmart in Kenner, Louisiana, and suffered injuries as a result
of her fall. Specifically, plaintiff claimed that she tripped on a “loose uneven metal
strip at the entrance door” of the Walmart, which was not properly fastened to the
floor. As a result of her fall, plaintiff asserted that she sustained serious bodily
injuries and incurred medical expenses.
Plaintiff alleged that the defective floor created an unreasonably dangerous
condition about which Walmart employees knew or should have known, and that
Walmart created a hazardous condition by failing to mitigate or cure the defect in
the unfastened metal strip on the floor. Plaintiff also alleged that Walmart failed to
warn of the hazardous condition. As a result of Walmart’s negligence, plaintiff
asserted that it was liable for her injuries and sought special and general damages.
On November 30, 2022, Walmart filed a motion for summary judgment,
seeking dismissal of plaintiff’s claims against it. Walmart asserted that plaintiff was
unable to satisfy her burden of proof at trial under La. R.S. 9:2800.6 because plaintiff
could not show Walmart created or had actual or constructive notice of the alleged
hazardous condition. In support of its motion, Walmart attached plaintiff’s petition
for damages and her deposition transcript.
In her deposition, plaintiff testified that as she entered the Walmart, she
tripped over a “metal strip” at the threshold of the entrance because the strip was
loose. Plaintiff stated she did not know how the metal strip may have come loose
24-CA-18 1 before the accident. Plaintiff also conceded she had no information to suggest that
a Walmart employee caused the strip to become loose or to indicate how long the
strip may have been loose pre-incident. As a result, Walmart argued plaintiff had
no affirmative evidence to establish Walmart caused the metal strip to come loose
or had actual or constructive notice of the metal strip’s condition.
In opposition, plaintiff argued there were genuine issues of material fact as to
whether Walmart had actual or constructive notice of the shaky, unstable, loose, and
raised metal threshold at the store entrance. In support of her opposition, plaintiff
prepared and submitted an affidavit regarding the incident and photographs of the
threshold where she fell.1 In the affidavit, plaintiff stated that, after her accident, an
employee told her Walmart usually placed a door mat over the metal threshold
because of its unstable condition.
After a hearing on June 26, 2023, the trial court found no genuine issues of
material fact existed and granted Walmart’s motion for summary judgment. In oral
reasons for judgment, the trial court summarized plaintiff’s deposition testimony and
affidavit statements regarding the incident as follows: (1) “Plaintiff testified that the
metal strip over which she tripped came ‘loose some kind of way’”; (2) Plaintiff
stated she “observed lots of dried and built-up mud or dirt which had settled
underneath the raised-up compartment”; (3) “She further stated that a Walmart
employee told her that a mat is usually placed over the threshold because it is
unstable”; and (4) “Plaintiff testified that she does not know how the strip came
loose, who caused the strip to become loose, nor how long the strip was loose prior
to her fall.”
With regard to plaintiff’s affidavit, the trial court found that plaintiff’s
affidavit contained inadmissible hearsay evidence in that “an out of court statement
1 Plaintiff apparently also submitted a surveillance video of the entrance to the Walmart where she fell. The video, however, was not included within the record and it is unclear whether it was properly filed in the trial court.
24-CA-18 2 made by an unidentified employee is insufficient to establish constructive notice.”
As a result, the trial court refused to consider this statement.
In finding a lack of evidence to support plaintiff’s claim, the trial court
concluded that plaintiff’s testimony was speculative and insufficient to show the
condition complained of existed for some time before the fall. The trial court also
pointed out that there was no evidence of any prior incidents at this threshold even
though the surveillance video showed that this was a highly trafficked entrance.
Thus, by judgment dated July 13, 2023, the trial court granted Walmart’s motion for
summary judgment.
On July 21, 2023, plaintiff filed a motion for new trial and motion to vacate,
asserting the granting of Walmart’s motion for summary judgment was contrary to
the law and evidence. The trial court denied this motion.
LAW and ANALYSIS
On appeal, plaintiff asserts the trial court erred in finding there is no genuine
issue of material fact regarding whether Walmart had constructive notice of the
hazardous condition that caused her to slip and fall. We agree with the trial court’s
conclusion.
A motion for summary judgment shall be granted if the motion, memorandum,
and supporting documents show that there is no genuine issue as to material fact and
that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 A(3).
The party seeking summary judgment has the initial burden of proof to show no
genuine issue of material fact exists. La. C.C.P. art. 966 D; Swatt v. Wal-Mart
Stores, Inc., 21-66 (La. App. 5 Cir. 12/29/21), 334 So.3d 1054, 1058, writ denied,
22-205 (La. 4/5/22), 335 So.3d 833. However, if the mover will not bear the burden
of proof at trial on the issue that is before the court on the motion for summary
judgment, the mover’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
24-CA-18 3 out to the court the absence of factual support for one or more elements essential to
the adverse party’s claim, action, or defense. Id. The burden is on the adverse party
to produce factual support sufficient to establish the existence of a genuine issue of
material fact, or that the mover is not entitled to judgment as a matter of law.” La.
C.C.P. art. 966 D(1).
Appellate courts review a judgment granting or denying a motion for
summary judgment de novo, using the same criteria governing the trial court’s
consideration of whether summary judgment is appropriate.
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WILLIE BEATRICE SMITH NO. 24-CA-18
VERSUS FIFTH CIRCUIT
WALMART INC. AND XYZ INSURANCE COURT OF APPEAL COMPANY STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 816-749, DIVISION "L" HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING
December 05, 2024
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and John J. Molaison, Jr.
AFFIRMED SJW MEJ JJM COUNSEL FOR PLAINTIFF/APPELLANT, WILLIE BEATRICE SMITH Pius A. Obioha Joseph R. Barbie, Sr.
COUNSEL FOR DEFENDANT/APPELLEE, WALMART INC. Christopher James-Lomax Peter S. Martin WINDHORST, J.
In this slip and fall case, Willie Beatrice Smith, plaintiff/appellant, appeals the
trial court’s July 13, 2023 judgment, granting Walmart, Inc.’s, defendant/appellee,
motion for summary judgment and dismissing plaintiff’s claim with prejudice. We
affirm the trial court’s judgment.
PROCEDURAL HISTORY
On April 16, 2021, plaintiff filed a petition for damages, alleging that she
tripped and fell at a Walmart in Kenner, Louisiana, and suffered injuries as a result
of her fall. Specifically, plaintiff claimed that she tripped on a “loose uneven metal
strip at the entrance door” of the Walmart, which was not properly fastened to the
floor. As a result of her fall, plaintiff asserted that she sustained serious bodily
injuries and incurred medical expenses.
Plaintiff alleged that the defective floor created an unreasonably dangerous
condition about which Walmart employees knew or should have known, and that
Walmart created a hazardous condition by failing to mitigate or cure the defect in
the unfastened metal strip on the floor. Plaintiff also alleged that Walmart failed to
warn of the hazardous condition. As a result of Walmart’s negligence, plaintiff
asserted that it was liable for her injuries and sought special and general damages.
On November 30, 2022, Walmart filed a motion for summary judgment,
seeking dismissal of plaintiff’s claims against it. Walmart asserted that plaintiff was
unable to satisfy her burden of proof at trial under La. R.S. 9:2800.6 because plaintiff
could not show Walmart created or had actual or constructive notice of the alleged
hazardous condition. In support of its motion, Walmart attached plaintiff’s petition
for damages and her deposition transcript.
In her deposition, plaintiff testified that as she entered the Walmart, she
tripped over a “metal strip” at the threshold of the entrance because the strip was
loose. Plaintiff stated she did not know how the metal strip may have come loose
24-CA-18 1 before the accident. Plaintiff also conceded she had no information to suggest that
a Walmart employee caused the strip to become loose or to indicate how long the
strip may have been loose pre-incident. As a result, Walmart argued plaintiff had
no affirmative evidence to establish Walmart caused the metal strip to come loose
or had actual or constructive notice of the metal strip’s condition.
In opposition, plaintiff argued there were genuine issues of material fact as to
whether Walmart had actual or constructive notice of the shaky, unstable, loose, and
raised metal threshold at the store entrance. In support of her opposition, plaintiff
prepared and submitted an affidavit regarding the incident and photographs of the
threshold where she fell.1 In the affidavit, plaintiff stated that, after her accident, an
employee told her Walmart usually placed a door mat over the metal threshold
because of its unstable condition.
After a hearing on June 26, 2023, the trial court found no genuine issues of
material fact existed and granted Walmart’s motion for summary judgment. In oral
reasons for judgment, the trial court summarized plaintiff’s deposition testimony and
affidavit statements regarding the incident as follows: (1) “Plaintiff testified that the
metal strip over which she tripped came ‘loose some kind of way’”; (2) Plaintiff
stated she “observed lots of dried and built-up mud or dirt which had settled
underneath the raised-up compartment”; (3) “She further stated that a Walmart
employee told her that a mat is usually placed over the threshold because it is
unstable”; and (4) “Plaintiff testified that she does not know how the strip came
loose, who caused the strip to become loose, nor how long the strip was loose prior
to her fall.”
With regard to plaintiff’s affidavit, the trial court found that plaintiff’s
affidavit contained inadmissible hearsay evidence in that “an out of court statement
1 Plaintiff apparently also submitted a surveillance video of the entrance to the Walmart where she fell. The video, however, was not included within the record and it is unclear whether it was properly filed in the trial court.
24-CA-18 2 made by an unidentified employee is insufficient to establish constructive notice.”
As a result, the trial court refused to consider this statement.
In finding a lack of evidence to support plaintiff’s claim, the trial court
concluded that plaintiff’s testimony was speculative and insufficient to show the
condition complained of existed for some time before the fall. The trial court also
pointed out that there was no evidence of any prior incidents at this threshold even
though the surveillance video showed that this was a highly trafficked entrance.
Thus, by judgment dated July 13, 2023, the trial court granted Walmart’s motion for
summary judgment.
On July 21, 2023, plaintiff filed a motion for new trial and motion to vacate,
asserting the granting of Walmart’s motion for summary judgment was contrary to
the law and evidence. The trial court denied this motion.
LAW and ANALYSIS
On appeal, plaintiff asserts the trial court erred in finding there is no genuine
issue of material fact regarding whether Walmart had constructive notice of the
hazardous condition that caused her to slip and fall. We agree with the trial court’s
conclusion.
A motion for summary judgment shall be granted if the motion, memorandum,
and supporting documents show that there is no genuine issue as to material fact and
that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 A(3).
The party seeking summary judgment has the initial burden of proof to show no
genuine issue of material fact exists. La. C.C.P. art. 966 D; Swatt v. Wal-Mart
Stores, Inc., 21-66 (La. App. 5 Cir. 12/29/21), 334 So.3d 1054, 1058, writ denied,
22-205 (La. 4/5/22), 335 So.3d 833. However, if the mover will not bear the burden
of proof at trial on the issue that is before the court on the motion for summary
judgment, the mover’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
24-CA-18 3 out to the court the absence of factual support for one or more elements essential to
the adverse party’s claim, action, or defense. Id. The burden is on the adverse party
to produce factual support sufficient to establish the existence of a genuine issue of
material fact, or that the mover is not entitled to judgment as a matter of law.” La.
C.C.P. art. 966 D(1).
Appellate courts review a judgment granting or denying a motion for
summary judgment de novo, using the same criteria governing the trial court’s
consideration of whether summary judgment is appropriate. Swatt, 334 So.3d at
1058. An appellate court’s de novo review of the trial court’s ruling on summary
judgment is generally from the same viewpoint as that of the trial court, but with a
fresh consideration of the exhibits and application of the law. Id; Allday v. Newpark
Square I Off. Condo. Ass’n, Inc., 20-358 (La. App. 5 Cir. 8/18/21), 327 So.3d 566.
Trial court rulings on motions for summary judgment are reviewed without regard
or deference because credibility is not at issue. Id. Appellate courts ask the same
questions the trial court does in determining whether summary judgment is
appropriate: whether there is any genuine issue of material fact, and whether the
mover is entitled to judgment as a matter of law. Breaux v. Fresh Start Properties,
L.L.C., 11-262 (La. App. 5 Cir. 11/29/11), 78 So.3d 849, 852.
A fact 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 (La. 6/25/04), 876 So.2d 764, 765 (per curiam); Montalbano v.
Persich, 18-602 (La. App. 5 Cir. 5/29/19), 274 So.3d 855, 860, writ denied, 19-1051
(La. 10/1/19), 280 So.3d 161. A genuine issue 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 appropriate. Id. In determining
whether the evidence creates a genuine issue of material fact, the trial court cannot
24-CA-18 4 make credibility determinations, evaluate testimony, or otherwise weigh the
evidence. Id at 860-61.
In a slip or fall case against a merchant, a plaintiff must prove the essential
elements of a standard negligence claim in addition to the requirements under La.
R.S. 9:2800.6. Sheffie v. Wal-Mart Louisiana LLC, 13-792 (La. App. 5 Cir.
2/26/14), 134 So.3d 80, 83-84, writ denied, 14-881 (La. 6/20/14), 141 So.3d 813;
Williams v. Supervalu, Inc., 18-143 (La. App. 5 Cir. 11/7/18), 259 So.3d 547, 551.
La. R.S. 9:2800.6, in pertinent part, provides:
(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.
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. Lousteau v. K-
Mart Corp., 03-1182 (La. App. 5 Cir. 3/30/04), 871 So.2d 618, 623, writ denied, 04-
1027 (La. 6/25/04), 876 So.2d 835. The owner of a commercial establishment has
an affirmative duty to keep his premises in a safe condition, but he is not the insurer
of his patrons’ safety. Bertaut v. Corral Gulfsouth, Inc., 16-93 (La. App. 5 Cir.
12/21/16), 209 So.3d 352, 357.
To satisfy the “constructive notice” requirement, the plaintiff must prove the
condition existed for such a period of time that it would have been discovered if the
24-CA-18 5 merchant had exercised reasonable care. La. R.S. 9:2800.6 C(1); Swatt, 334 So.3d
at 1059. Constructive notice is not proven by the mere presence of a merchant’s
employee in the vicinity in which the condition exists, unless it is shown that the
employee knew, or in the exercise of reasonable care should have known, of the
condition. Id. This element requires that the plaintiff make a positive showing of
the existence of the condition prior to the fall. White v. Wal-Mart Stores, Inc., 97-
393 (La. 9/9/97), 699 So.2d 1081, 1086. While there is no bright-line time period,
a plaintiff must show “‘the condition existed for such a period of time’” and the
defendant-merchant should have noticed the defect in exercising reasonable care.
Sheffie, 134 So.3d at 84; White v. Wal-Mart Stores, Inc., 97-393 (La. 9/9/97), 699
So.2d 1081, 1084.
Upon review, we find the plaintiff cannot satisfy her burden of proving that
Walmart had actual or constructive notice of the alleged hazardous condition which
caused plaintiff to fall. Plaintiff cannot prove the alleged hazardous condition of the
threshold existed for any period of time before her fall. Plaintiff has no evidence
Walmart had any knowledge of the alleged hazardous condition prior to her fall.
Plaintiff also has nothing to show Walmart, in the exercise of reasonable care, should
have known about the condition.
Considering the forgoing, we find no error in the trial court’s granting of
Walmart’s motion for summary judgment, thereby dismissing plaintiff’s claim
against it.
DECREE
For the reasons stated above, we affirm the trial court’s judgment.
AFFIRMED
24-CA-18 6 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 5, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
24-CA-18 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) R. CHRISTOPHER COX, III (DISTRICT JUDGE) JOSEPH R. BARBIE, SR. (APPELLANT) PIUS A. OBIOHA (APPELLANT) PETER S. MARTIN (APPELLEE) SIDNEY J. HARDY (APPELLEE)
MAILED CHRISTOPHER JAMES-LOMAX (APPELLEE) ATTORNEY AT LAW 909 POYDRAS STREET SUITE 1000 NEW ORLEANS, LA 70112