Opinion
Civil Action 00-3654, Section "T" (3)
October 1, 2001
Before the Court is a Motion for Summary Judgment filed on behalf of the defendant, Sears Roebuck and Co. (hereinafter referred to as "Sears"), as well as an Opposition to the Motion for Summary Judgment filed on behalf of the plaintiff, Emily Pollet. The parties have waived oral argument and the motion has been submitted to the Court for consideration on the briefs alone. The Court, having considered the arguments of counsel, the evidence submitted, the record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
The Court notes from defendant's motion that Liberty Mutual Insurance Co. has been named in the suit but has neither been served nor is joining in the Motion for Summary Judgment filed on behalf of Sears Roebuck and Co.
ORDER AND REASONS
I. BACKGROUND:
This suit involves a slip and fall accident allegedly occurring on the defendant's premises. After discovery requests were made and complied with by both parties, defendant filed a Motion for Summary Judgment. The plaintiff has responded to this motion by filing an Opposition to the Motion for Summary Judgment.
II. ARGUMENTS OF DEFENDANT IN SUPPORT OF SUMMARY JUDGMENT:
The defendant argues in its motion for summary judgment that the deposition testimony of Sears security agent, Mr. Levia, the affidavit of E.J. Bizette, and the testimony of the plaintiff prove that defendant did not create a hazardous condition or have actual or constructive knowledge of a dangerous condition or failed to exercise reasonable care on the day of the alleged fall. Defendant claims that the plaintiff admitted that she did not feel the area was dangerous. Additionally, Mr. Levia, the author of the incident report, testified by deposition that he did not recall seeing carpet out of place or water on the floor near the entrance when he investigated the scene of the alleged fall. Furthermore, defendant avers that the affidavit of Mr. Bizette and the company safety manual demonstrate the effort with which the defendant takes to prevent slips and explain the appropriate steps taken when personnel are notified of a dangerous or hazardous condition on the premises. Finally, defendant urges that if there, in fact, was water in the area, this fact was not known to any personnel, thereby creating no duty to remedy a hazardous situation.
III. ARGUMENTS OF PLAINTIFF IN OPPOSITION TO SUMMARY JUDGMENT:
The plaintiff contends that there was a hazardous condition at the defendant's store, that Sears failed to follow its own safety procedure, and that Sears failed to properly investigate the plaintiff's fall. Plaintiff argues that because it was raining and due to the high volume of business conducted at Sears, the defendant should have foreseen that the floor could become wet, and therefore, had constructive notice of such a hazardous condition. Plaintiff believes that Sears failed to exercise reasonable care by failing to place safety cones in the area, failing to retain daily inspection reports and failing to adequately investigate the accident scene.
IV. LAW AND 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, 248 (1986).
B. Law on Premises Liability:
In order to find a defendant liable for injuries allegedly suffered by a plaintiff due to a slip and fall occurring on its premises, the plaintiff must prove all of the elements of La. R.S. 9:2800.6 which provides in relevant part:
B. 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, that:
(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; and
(3) The merchant failed to exercise reasonable care.
C. Definitions:
(1) "Constructive notice" means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. (Emphasis added).
C. The Court's Analysis:
The Court finds that the defendant has demonstrated sufficient evidence that there are no material issues of fact left to be determined. The plaintiff has not provided evidence to prove the essential elements of her cause of action, namely that the defendant created a condition presenting an unreasonable risk of harm that was reasonably foreseeable, or that it had actual or constructive knowledge of the condition prior to the occurrence, and failed to exercise reasonable care to remedy the situation.
Although it is undisputed from the evidence presented by both parties that it was raining the day of the alleged accident, this fact alone does not prove the existence of a hazardous condition. The only evidence available that suggests there was any liquid on the floor of the department store is the deposition testimony of the plaintiff. Even if this Court gives Ms. Pollet the benefit of the doubt that there was water on the floor, the plaintiff still cannot prove through the evidence before the Court that the defendant had actual or constructive knowledge of such hazardous condition. The defendant has presented evidence that demonstrates that none of its personnel knew of the existence of any hazardous condition on its premises.
Moreover, plaintiff has failed to set forth sufficient evidence that could establish that the defendant had constructive notice of the condition by showing that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. Vergin v. McDonald's Restaurant of Louisiana, Inc. 97-247 (La. App 1 Cir 11/6/98), 722 So.2d 78. In White v. Wal-mart, 97-0393 (La 9/9/97), 699 So.2d 1081, the Louisiana Supreme Court discussed at length the necessary requirements for establishing fault for premises liability claims. "Under the statute establishing the burden of proof for premises liability claims against merchants, a plaintiff who seeks to show a merchant's constructive knowledge of a condition causing injury must show that the condition existed for some time prior to the fall." Id. at 1085-86. Therefore a showing of some time is a prerequisite, and a plaintiff who simply shows that a condition existed without an additional showing that the condition existed for some time before the fall, has not carried her burden of proving constructive notice. In White, a customer who was injured in a fall at Wal-Mart, allegedly caused by a clear liquid on the floor of the store aisle, failed to establish that the store had constructive notice of the dangerous condition created by the spill. Similar to the facts at hand, the customer and her companion did not see the spill prior to the fall, there was no positive evidence presented that showed that any store employee was aware of any spill, and no evidence was presented that proved the spill was on the floor for any length of time, as required to support a finding of constructive knowledge. Because La R.S. 9:2800.6 is clear and unambiguous and uses the conjunctive "and" following section (B)(2), sections (B)(1), (B)(2), and (B)(3) are all mandatory elements to be proven by the plaintiff. Because there is a temporal element included in the statute, the statute does not allow for inference of constructive notice absent some showing of this temporal element.
Like the plaintiff in White, Ms. Pollet has not shown that the condition she claims caused her injury was, in fact, present for such a period of time and that such time was sufficient to place defendant's personnel on notice of its existence. "Although the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall." Id. at 1085. Courts have generally found this not to be an impossible burden on a plaintiff.
The facts as presented by Ms. Pollet are also similar to Vergin v. McDonald's, supra. Plaintiff in the Vegin case fell on a liquid substance while in the lobby of McDonald's. The court stated that to satisfy her burden "Ms. Vergin had to show the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." Id. at 82. The court concluded that Ms. Vergin's own testimony refuted this inference, much like the testimony in Ms. Pollet's deposition, considering that she said she did not notice anything wet on the floor in the area prior to her fall and admitted that the she did not think the defendant knew about the alleged water in the vestibule of the store. See Deposition of Ms. Pollet p. 52. There is no evidence in the pleadings presented to this Court that the defendant had knowledge of the dangerous condition.
Additionally, through affidavits, safety manuals, and deposition testimony, defendant has demonstrated that it followed safety procedures to ensure its patron's welfare and that procedures were in place to alert the public if a dangerous situation arose in the store. Finally, the plaintiff admitted in her deposition that she failed to alert personnel immediately after the alleged accident, thereby preventing an adequate report and investigation of the scene at the time it allegedly occurred. Without warning of a hazardous condition, the Court finds that the defendant was under no duty to take further measures than usual to ensure its patron's safety.
V. CONCLUSION:
For the foregoing reasons, the Court finds that there is sufficient evidence to demonstrate that there are no genuine issues of material fact and that defendant/movant is entitled to summary judgment as a matter of law.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment filed on behalf of the defendant, Sears Roebuck and Co., be and the same is hereby GRANTED.