Opinion
2022 CW 1180
02-22-2023
RAMONA MATHERNE v. ACADEMY, LTD.
Academy LTD. d/b/a Academy Sports + Outdoors, applying for supervisory writs, 32nd Judicial District Court, Parish of Terrebonne, No. 187363.
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
WRIT GRANTED. The judgment of the district court signed on October 26, 2022, denying the motion for summary judgment filed by the defendant, Academy, Ltd. d/b/a/ Academy Sport + Outdoors, is reversed. Regarding evidence, "[a] subsequent affidavit in contradiction to prior deposition testimony is not sufficient to create an issue of fact precluding summary judgment without some explanation or support for the contrary statements." McCastle-Getwood v. Professional Cleaning Control, 2014-0993 (La.App. 1st Cir. 1/29/15), 170 So.3d 218, 222. Further, in a falling merchandise case, under La. R.S. 9:2800.6(A), the customer must demonstrate that he did not cause the merchandise to fall, "that another customer in the aisle at that moment did not cause the merchandise to fall," and the merchant's negligence was the cause of the accident. Davis v. Wal-Mart Stores, Inc., 2000-0445 (La. 11/28/00), 774 So.2d 84, 90. We find the subsequent affidavit of Robby Adams filed in this matter contradicts prior testimony and insufficient explanation was provided to substantiate the contrary statement. Thus, we also find the plaintiff, Ramona Matherne, failed to produce evidence sufficient to establish the existence of a genuine issue of material fact as to whether "another customer in the aisle at that moment did not cause the merchandise to fall." Id. Therefore, the motion for summary judgment filed by the defendant is granted, and the plaintiff's claims are dismissed.
JEW
AHP
WIL