THERIOT

NOT DESIGNATED FOR PUBLICATION

Appealed from the

19th Judicial District Court

In and for the Parish of East Baton Rouge

State of Louisiana

Case No. C607653

The Honorable Timothy E. Kelley, Judge Presiding

C. Chadwick Boykin
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellant
Mia Mays
Ryan J. Roemershauser
Amanda B. Bensabat
Metairie, Louisiana
Counsel for Defendant/Appellee
Circle K Stores, Inc.

BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.

THERIOT, J.

The plaintiff-appellant, Mia Mays, seeks reversal of the summary judgment of the Nineteenth Judicial District Court, granted in favor of the defendant-appellee, Circle K Stores, Inc. (Circle K), which dismissed her petition for damages with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 31, 2010, Ms. Mays sustained injuries due to a slip and fall that occurred while she was lawfully on the premises of Circle K's store located at 5377 Highland Road in Baton Rouge, Louisiana. Two minutes prior to Ms. Mays's entrance into the store, a Circle K employee completed mopping the store floor in the area of the drink fountain and placed a yellow warning sign several feet away from the drink fountain facing the store's front entrance, unobstructed from the view of customers as they enter.

When Ms. Mays entered the store, she approached the warning sign as she walked to the drink fountain and passed it to the left. Ms. Mays testified in her deposition that she saw the sign and recognized it as warning of a wet floor. When she reached the drink fountain, she slipped and fell in the same location where the Circle K employee had finished mopping two minutes earlier. Due to the injuries she claimed she suffered in her fall, Ms. Mays filed a petition for damages against Circle K on December 14, 2011.

Circle K filed a motion for summary judgment to dismiss Ms. Mays's petition with prejudice. Prior to the hearing on the motion, the defendant submitted that there were three uncontested facts:

1. That Ms. Mays did fall on December 31, 2010 in the aforementioned Circle K store;
2. That a yellow "wet floor" warning sign was placed on the store floor prior to Ms. Mays's entrance;
3. That Ms. Mays noticed the sign before she slipped.

Ms. Mays' s deposition and video surveillance from the store on the date of her fall were submitted to the trial court prior to the hearing. At the hearing on the motion for summary judgment, the trial court determined there was no genuine issue of material fact as to the exercise of reasonable care by Circle K. The trial court granted Circle K's motion for summary judgment and dismissed Ms. Mays's petition for damages with prejudice. Ms. Mays timely appealed the trial court's judgment.

ASSIGNMENT OF ERROR

Ms. Mays submits that the trial court erred when it found there was no genuine issue of material fact as to whether or not Circle K was reasonable in its placement of the wet floor sign.

STANDARD OF REVIEW

Louisiana Revised Statutes 9:2800.6(8) governs the plaintiff's burden of proof in a "slip-and-fall" case:

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.

Factors (1) and (2) are not in dispute in this case. It is agreed by the parties that the mopping of the floor created a reasonably foreseeable risk of harm, and Circle K's actual notice of the risk is shown by the placing of the warning sign. Ms. Mays argues that a question of material fact exists as to whether factor (3) was satisfied. She contends that Circle K did not exercise reasonable care because the placement of the one sign was not close enough to the site of her fall to give her reasonable notice of the risk of harm.

A motion for summary judgment should be granted if the pleadings, deposition, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Dickers on v. Piccadilly Restaurants, Inc., 1999-2633, p. 3. (La. App, 1 Cir. 12/22/00), 785 So.2d 842, 844. The mover has the burden of affirmatively showing the absence of a genuine issue of material fact and any doubt on this score should be resolved against granting the motion. Id.

However, when a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Id. In effect, after the mover files sufficient documentation to support the motion for summary judgment, the burden shifts to the opponent to prove material facts are at issue. Id. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is "material" for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Id.

DISCUSSION

Whether protective measures in a particular store are reasonable must be determined in light of the circumstances of the case, considering, commensurate with the risk involved, the merchant's type and volume of merchandise, the type of display, the floor space utilized for customer service, the volume of business, the time of day, the section of the store, and other considerations. Jackson v. Delchamps, Inc., 96-2417, p. 6 (La. App. 1 Cir. 3/27/97), 691 So.2d 332, 335, writ denied, 97-1126 (La. 6/13/97), 695 So.2d 977. Although the owner of a commercial establishment has an affirmative duty to keep the premises in a safe condition, he is not the insurer of the safety of his patrons and is not liable every time an accident happens. Ward v. ITT Specialty Risk Services, Inc., 31,900, p. 4-5 (La. App. 2 Cir. 6/16/99), 739 So.2d 251, 254, writ denied, 99-2690 (La. 11/24/99), 750 So.2d 987.

The trial court relied on video footage from the store and Ms. Mays's own deposition testimony to find that she was placed on notice of the potential risk of the wet floor when she saw the warning sign and continued to walk past it. The trial court viewed Circle K's placement of the warning sign as exercising reasonable care, and we agree. Ms. Mays could not avoid seeing the sign when she entered the store, and she saw the warning sign before she reached the slippery area of the floor. The trial court found it was not necessary for any more signs to be placed due to the small floor space of the store.

The reasonableness of Circle K's actions is reinforced by the factually similar case of Rowell v. Hollywood Casino Shreveport, 43,306 (La. App. 2 Cir. 9/24/08), 996 So.2d 476, 479. In that case, the plaintiff took issue with the placement of a 24-inch high yellow warning cone in a restroom. While the cone was not in the exact location where the plaintiff fell, she admitted that she saw the cone upon entering the restroom and understood the warning. As these facts were undisputed, the trial court found the defendant had adequately proven that it had taken reasonable care to warn against the risk of slipping on the restroom's wet floor. The burden then shifted to the plaintiff to meet her evidentiary burden under La. R.S. 9:2800.6. When she failed to do so, the trial court granted summary judgment in favor of the defendant.

Likewise, in the instant case, Circle K had sufficiently shown that protective measures were taken to warn customers of the potential hazard and it did not fail to exercise reasonable care; thus, the burden shifted to Ms. Mays. While Ms. Mays argued that the one sign was not enough to adequately warn her, she did not present any other evidence or legal support for her claim. The trial court correctly found that Circle K's protective measures were reasonable in light of the circumstances. Ms. Mays failed to provide sufficient evidence to meet her burden of proving that Circle K failed to exercise reasonable care, thus there are no genuine issues of material fact and Circle K is entitled to judgment as a matter of law.

CONCLUSION

Ms. Mays failed to carry her burden of proving Circle K's negligence under La. R.S. 9:2800.6, since Circle K proved it had placed the public on notice of its wet floor by the placement of a warning sign, and that Ms. Mays was aware of the hazard when she viewed the warning sign. The trial court's ruling on the motion for summary judgment was legally correct.

DECREE

The ruling of the trial court granting summary judgment in favor of Circle K Stores, Inc. and dismissing the petition of Mia Mays with prejudice is affirmed. All costs of this appeal shall be assessed to the appellant, Mia Mays.

AFFIRMED.