Opinion
NO. 2016 CW 1666
06-29-2017
ABRAM MITCHELL AND ANITRA MITCHELL v. THE TJX COMPANIES, INC., HOMEGOODS, INC., AND ZURICH AMERICAN INSURANCE COMPANY
In Re: The TJX Companies, Inc., HomeGoods, Inc., and Zurich American Insurance Company, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 644912. BEFORE: McDONALD, WELCH, CRAIN, THERIOT AND HOLDRIDGE, JJ.
WRIT GRANTED. After conducting a de novo review, we conclude there is no genuine issue of material fact that the complained of condition, rolling office chairs situated on a retail display platform, did not present a unreasonable risk of harm. Consequently, the defendants' premises were neither defective, nor did they owe a duty to the plaintiff under the undisputed circumstances. The defendants, The TJX Companies, Inc., Homegoods, Inc. and Zurich American Insurance Company, are entitled to judgment as a matter of law. La. Code Civ. P. art. 966A(3). See also Bufkin v. Felipe's Louisiana, LLC, 2014-0288 (La. 10/15/14), 171 So.3d 851. See also Rodriguez v. Dolgencorp, LLC, 2014-1725 (La. 11/14/14), 152 So.3d 871 (per curiam). The defendants established that plaintiffs were aware the chairs had wheels and were on a raised, wood platform. Nevertheless, plaintiffs stepped onto the platform and sat in the chairs. The defendants established that any risk of harm presented by this circumstance was completely avoidable through the exercise of reasonable care by the plaintiffs. The burden then shifted to the plaintiffs to present evidence to demonstrate that they would be able to meet their burden of proof at trial to show the existence of an unreasonable risk of harm, and, therefore, a defective condition or duty owed on the part of the defendants. Plaintiffs did not produce any evidence showing they could meet their burden of proof at trial. Accordingly, the writ application is granted and the ruling of the trial court is reversed, and judgment is rendered dismissing the Mitchells' claims against The TJX Companies, Inc., Homegoods, Inc., and Zurich American Insurance Company with prejudice.
WJC
JMM
Theriot, J., concurs. There is no issue of material fact that plaintiffs were aware that they were sitting in chairs with wheels on a raised platform and could have avoided harm by the exercise of ordinary care.
Holdridge, J., concurs in granting the writ.
Welch, J., dissents. I believe a fact finder could reasonably conclude that placing rolling chairs on a six inch raised platform display created an unreasonable risk of harm to customers. Further, plaintiffs' observation and appreciation of the risk in this case is an issue of comparative fault and does not operate as an automatic bar to recovery. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT