Opinion
NO. 2012 CA 0912
02-15-2013
SARAH MONTAGUE v. E. FEDERAL CREDIT UNION AND CUNA MUTUAL GROUP
Allen J. Myles Plaquemine, LA Attorney for Plaintiff-Appellant, Sarah Montague Paula M. Wellons Michelle L. Maraist New Orleans, LA Attorneys for Defendants-Appellees, E. Federal Credit Union and Cumis Insurance Society, Inc.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court,
In and for the Parish of East Baton Rouge,
State of Louisiana
Trial Court No. 587,035
Honorable Timothy E. Kelley, Judge Presiding
Allen J. Myles
Plaquemine, LA
Attorney for Plaintiff-Appellant,
Sarah Montague
Paula M. Wellons
Michelle L. Maraist
New Orleans, LA
Attorneys for Defendants-Appellees,
E. Federal Credit Union and
Cumis Insurance Society, Inc.
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM , J.
In this case, the plaintiff, Sarah Montague, filed suit in the Nineteenth Judicial District Court against the defendants, E. Federal Credit Union (Credit Union) and Cumis Insurance Society, Inc. (Cumis), seeking damages stemming from Mrs. Montague's slip and fall after she stepped off the door mat located inside the Credit Union's entryway. The Credit Union and Cumis moved for summary judgment, alleging that Mrs. Montague could not establish that the entryway door mat constituted an unreasonably dangerous condition or that the Credit Union had actual or constructive notice of the condition. After a hearing, the district court granted summary judgment in favor of the Credit Union and Cumis, dismissing Mrs. Montague's claims with prejudice. Mrs. Montague appealed, contending that summary judgment was inappropriate, because genuine issues of material fact exist that bear upon the alleged negligence of the Credit Union. For the following reasons, the judgment is affirmed.
BACKGROUND
The facts are straightforward and derive from the pleadings and Mrs. Montague's deposition testimony, as well as an affidavit of a loan officer at the Credit Union, Catherine Moore. The slip-and-fall incident occurred just inside the Credit Union's doorway on a very rainy day, March 25, 2009, when Mrs. Montague went to the Credit Union to make a deposit. After entering the Credit Union and walking to the teller, Mrs. Montague realized she needed her driver's license, which she had left in her parked vehicle. Mrs. Montague went back to her vehicle to retrieve her license, and as she re-entered the Credit Union, she slipped and fell when she stepped off the door mat, which was allegedly soaking wet from rain water. Mrs. Montague did not notice that the mat was soaked when she went into the Credit Union the first time, and there were no signs indicating that the area was wet. She claimed that a security guard sitting inside the Credit Union saw her fall, helped her up, and located a manager for her to report the incident. Mrs. Montague acknowledged that she had been inside the Credit Union building many times, at least once a week for ten years, sometimes in rainy weather, but she had never noticed water on the floor before the day of the incident. Mrs. Montague also disclosed that she was wearing flip-flop snoes that day, and although she was not in a hurry, it was raining and she had no umbrella, so she parked near the Credit Union's front door and ran inside.
The affidavit of Ms. Moore, a loan officer for the Credit Union, established that immediately after Mrs. Montague's slip and fall was reported, Ms. Moore personally touched and handled the door mat, but did not find it to be soaking wet or saturated with water. Ms. Moore also stated that the door mat was used according to its intended purpose, to trap dirt and absorb moisture from the Credit Union's customers' shoes and to prevent tracking of dirt and moisture into the lobby of the Credit Union. Ms. Moore further stated that this was the first incident involving a slip and fall in the entryway or anywhere in the Credit Union during the three years that she had worked there,
LAW AND ANALYSIS
The rules governing motions for summary judgment are set forth in Article 966 of the Louisiana Code of Civil Procedure, That article provides that the burden of proof for summary judgment is on the movers (in this case, the Credit Union and Cumis). But when the moving party will not bear the burden of proof at trial (in this case, Mrs. Montague has that burden), the moving party's burden on a motion for summary judgment is to point out to the court that there is an absence of factual support for one or more essential elements of the adversary's claim. Thereafter, if the adverse party fails to produce factual support (evidence in the form of affidavits, deposition testimony, or discovery responses) sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial, then there is no genuine issue of material fact, and summary judgment shall be granted in favor of the mover. La. Code Civ. P. art. 966(C)(2); Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La. 6/30/00), 764 So.2d 37, 39-40; and Robles v. ExxonMobile, 2002-0854 (La. App. 1st Cir. 3/28/03), 844 So.2d 339, 341.
This court's review of a summary judgment is de novo, considering the same criteria that govern the district court's determination of whether summary judgment is appropriate, i.e., whether there is a genuine (triable) issue of material fact. See Janney v. Pearce, 2009-2103 (La. App. 1st Cir. 5/7/10), 40 So.3d 285, 289, writ denied, 2010-1356 (La. 9/24/10), 45 So.3d 1078. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Id., 40 So.3d at 290.
In general, those having custody of immovable property have a duty to keep the property in a reasonably safe condition. Vinccinelli v. Musso, 2001-0557 (La. App. 1st Cir. 2/27/02), 818 So.2d 163, 165, writ denied, 2002-0961 (La. 6/7/02), 818 So.2d 767. Property owners may have no duty to protect against an open and obvious hazard. Bozeman v. Scott Range Twelve Ltd. Partnership, 2003-0903 (La. App. 1st Cir. 4/2/04), 878 So.2d 615, 619, writ not considered, 2004-1945 (La. 11/8/04), 885 So.2d 1142. If the complained-of condition is obvious to all, the condition may not be unreasonably dangerous. Id. Non-merchant slip-and-fall settings require a general negligence analysis, with the burden of proof on the plaintiff to prove the following essential elements: (1) the defendant had custody of the property that caused the damage (undisputed in this case); (2) the property had a condition that created an unreasonable risk of harm to persons on the premises; (3) the unreasonably dangerous condition was a cause in fact of the resulting injury; and (4) the defendant had actual or constructive knowledge of the risk. Vinccinelli, 818 So.2d at 165.
In support of their motion for summary judgment, the Credit Union and Cumis submitted evidence showing Mrs. Montague's lack of factual support for two essential elements of her slip-and-fall claim: that the door mat in the entryway of the Credit Union constituted an unreasonably dangerous condition, and that the Credit Union had actual or constructive knowledge that the door mat was saturated and created an unreasonably dangerous condition, After the Credit Union and Cumis pointed out the absence of evidence, Mrs. Montague was required at that point to come forward with evidence to factually support her allegations. To rebut the motion, she could not rest on the mere allegations of her pleadings, self-serving or conclusory statements, or suppositions and conclusions of law. See La. Code Civ. P. art. 967(B). See also Strickland v. Board of Sup'rs of Louisiana State University and Agr. and Mechanical College, 432 So.2d 964, 967 (La. App. 4th Cir. 1983).
Our review of the record reveals conflicting evidence as to whether the door mat was saturated with rain water and whether the saturation contributed to Mrs. Montague's slip and fall. However, this evidence alone is not material to the issues of whether the wet door mat actually constituted a defective condition that created an unreasonable risk of harm and whether the Credit Union had actual or constructive notice of the condition. Mrs. Montague had the burden of proving both of these elements, but she failed to produce any factual support sufficient to satisfy her evidentiary burden at trial. The record is completely devoid of evidence that the Credit Union knew or should have known that the door mat at the entryway was so saturated with rainwater that it posed an unreasonable risk of harm. Mrs, Montague admitted that even she was unaware that the door mat was saturated until after she fell during the third time she traversed the area. Thus, we find that the fact situation presented in this case is precisely the type of situation contemplated for proper and expeditious use of summary judgment. Considering the entire record of the case, we conclude that the motion for summary judgment was properly granted.
CONCLUSION
Considering the forgoing reasons, we affirm the district court's judgment in this memorandum opinion, issued in compliance with Uniform Rules - Courts of Appeal, Rule 2-16.1(B). All costs of this appeal are assessed to the plaintiff-appellant, Mrs. Sarah Montague.
AFFIRMED.
2012 CA 0912
SARAH MONTAGUE
VERSUS
E. FEDERAL CREDIT UNION AND CUNA MUTUAL GROUP
McCLENDON, J., concurs and assigns reasons.
I concur with the result reached by the majority. Plaintiff failed to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial that the defendant knew or should have known of the condition that created the unreasonable risk of harm. See LSA-C.C.P. art. 966C(2); LSA-C.C. arts. 2315 and 2317.1; Farr v. Montgomery Ward and Co., Inc., 430 So.2d 1141, 1143 (La.App. 1 Cir.), writ denied, 435 So.2d 429 (La. 1983).