Opinion
CIV. No. 99-2754 SECTION "T," MAG. 3.
April 13, 2000.
April 14, 2000.
ORDER AND REASONS
This cause came for hearing on a previous date upon the Motion of the Defendants, Shoney's, Inc., et al., for Summary Judgment. Oral argument was waived and the matter was taken under submission on the briefs. Having considered the parties' memoranda and the relevant law, the Court hereby GRANTS the Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
I. Background
The Plaintiff, Allen Cook ("Cook"), was involved in a slip and fall accident while he and his wife were patrons at a Shoney's restaurant. At around 7:00 p.m., Cook and his wife entered the clean, well lit Shoney's restaurant. They sat at a booth next to the salad bar and reviewed their menus. Cook got up and walked to the salad bar where he slipped on a cherry tomato and fell to the floor.
Cook states that he never saw any dirt or other foreign substance on the floor around the salad bar. Additionally, he did not know how the tomato came to be on the floor or how long it had been there. Cook's wife, also, never saw any dirt or other foreign substance on the floor around the salad bar, nor did she observe any cleaning or mopping going on in the area of the salad bar at the time of her husband's fall. She remembers that the tomatoes were in a crock in the center of the salad bar and that they were not close to the edge of the bar, and therefore, she could not say how the tomato came to be on the floor or how long it had been there.
The restaurant supervisor confirms that the area around the salad bar is kept clean and regularly inspected. In fact, ten minutes before Cook's accident she had personally inspected the area and found no dirt or other foreign substance. Moreover, in that ten minute interval, no employee or customer reported to her that there was a tomato on the floor in the area around the salad bar. The cherry tomatoes were displayed on the bar in a decorative bowl in the shape of a wheelbarrow that completely enclosed the tomatoes and was designed to prevent them from rolling off of the salad bar. Furthermore, due to the contrast between the color of the floor and the tomato, a tomato on the floor would have been clearly visible. These facts are undisputed, and as a result, Defendants contend that the plaintiff has failed to present a claim upon which relief can be granted.
II. Legal Analysis
A. Law on Summary Judgment
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.s. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
B. Applicable Law
Plaintiff has predicated his claims on Louisiana Civil Code Articles 2315, 2316 and 2317 and La. R.S. 9:2800.6. Under La. R.S. 9:2800.6, merchants owe a duty of care to persons who use their premises. The merchant is charged with the duty to exercise reasonable care to keep its 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 may reasonably give rise to damage. See id. In an action under this codal provision, the claimant has the burden of proving all of the following:
1. The condition presented an unreasonable risk of harm to the claimant and the 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.
See id.
Under Louisiana Civil Code Articles 2315, 2316 and 2317 the Plaintiff must establish that: (1) the defendant owed a duty of care to the plaintiff; (2) that duty was breached; (3) defendant's breach of duty was a cause in fact of the injuries complained of; (4) the risk of harm and the resulting harm were within the scope of duty owed; and (5) plaintiff suffered actual damages. Mathieu v. Imperial Toy Corp., 646 So.2d 318, 321-322 (La. 1994).
C. Claims of the Respective Parties
Plaintiff alleges that the accident and the resulting injuries were caused through no fault of his own, but was caused by the negligence, carelessness and the strict liability of the defendants. Specifically, Plaintiff alleges that La. Civil Code Articles 2315, 2316, and 2317 was violated due to defendants': (a) failure to consider the safety of others; (b) failure to use proper vigilance and judgment; (c) failure to post warning signs; (d) failure to make periodic checks of the floor; (e) all other acts of negligence which may be proven at or prior to the trial of this matter.
In their motion for summary judgment, defendants claim that the Plaintiff has not presented any evidence that support his claims.
D. Analysis
The Court has reviewed the record, the law, and the memorandum submitted by the defendants and finds that the defendants have come forward and identified those portions of Allen Cook and his wife's depositions which show an absence of material fact. The defendants have indicated a lack of evidence to support a claim that an unreasonable risk of harm was presented, that Shoney's had actual or constructive knowledge of the condition, and further that Shoney's failed to exercise reasonable care. Moreover, there is insufficient evidence to substantiate a claim of breach of a duty of care owed to Mr. Cook. As such, the Court finds that the defendant has met its initial burden of proof and as such, the burden shifts to the plaintiff to come forward with specific facts showing that a genuine issue for trial exists. The plaintiff has failed to come forward and present any evidence to suggest any wrong-doing or negligence of the defendants. Specifically, the Court finds that the plaintiff has not even made a positive showing of the existence of the condition prior to the fall. Furthermore, there is no evidence to substantiate a claim of actual or constructive notice on the part of the defendants.
III. Conclusion
There are no genuine issues of material fact in dispute in this case, therefore, the Defendants are entitled to judgment as a matter of law.
Accordingly,
IT IS ORDERED that the Defendants' Motion for Summary Judgment, be, and the same is hereby GRANTED pursuant to Rule 56 of the Federal Rules of Civil Procedure.