Opinion
2022 CA 0191.
09-16-2022
Ashley WOODS o/b/o her minor child, Desmond Herald v. WINN-DIXIE STORES, INC. and XYZ Insurance Company.
PENZATO, J.
The plaintiff filed the instant appeal, seeking to reverse the trial court's judgment granting the motion for summary judgment filed by the defendant, Winn-Dixie Montgomery, LLC. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Ashley Woods, filed a petition for damages on behalf of her minor child, Desmon Herald, on July 18, 2016. The petition alleges that, on June 3, 2016, Desmon slipped in a Winn-Dixie store and cut his arm on an "improperly exposed" electrical socket. The plaintiff alleged that the electrical socket and the "defective area" where it was located created an unreasonably dangerous condition. She asserted that Winn-Dixie failed to, among other things, maintain a safe business environment and caused an unreasonably dangerous condition to exist. Winn-Dixie denied the allegations in its answer.
Although the petition identifies the plaintiff's son as "Desmond," she testified that the proper spelling of his name is "Desmon." Therefore, we will refer to the minor child as Desmon.
The plaintiff originally named "Winn-Dixie Stores, Inc.," as the defendant. The petition was amended in October 2016 to identify Winn-Dixie Montgomery, LLC as the proper defendant.
On February 1, 2021, Winn-Dixie filed a motion for summary judgment, asserting that the plaintiff cannot satisfy her burden of proof under La. R.S. 9:2800.6, Louisiana's Merchant Liability Statute, concerning the existence of liquid on the floor and cannot demonstrate that the electrical outlet was unreasonably dangerous. Although the petition does not specifically allege that Desmon slipped in liquid on the floor or that a spill created an unreasonably dangerous condition, Winn-Dixie argued that, to the extent this is an issue, the plaintiff cannot prove that the store created the condition, had notice of the existence of liquid on the floor, or knew how long the liquid was there.
On appeal, Winn-Dixie argues that the plaintiff "failed to make allegations of liquid in her Petition" and asserts that evidence of the presence of a liquid on the floor should not be considered. However, as noted above, the petition alleges that Desmon slipped and fell in the store, and Winn-Dixie moved for summary judgment on the issue of whether the plaintiff can succeed on a cause of action under La. R.S. 9:2800.6 due to the existence of liquid on the floor, relying on deposition testimony concerning this issue. To the extent the pleadings have been expanded to include allegations of liquid on the floor, Winn-Dixie's motion placed the issue before the court. La. C.C.P. art. 966(E) and (F). Thus, this argument lacks merit.
Winn-Dixie also asserted that the plaintiff cannot prove the electrical outlet was unreasonably dangerous. It appears the "improperly exposed" electrical socket identified in the petition refers to a metal electrical outlet mounted to and "protruding" from a metal support post located in the store. The plaintiff contends that Desmon, who was seven years old at the time, cut his arm on the outlet's purportedly sharp edges. Winn-Dixie asserted in its motion that the outlet and cover are not defective, and the outlet is securely mounted on the back of a support post, facing away from the interior of the store, in an empty space at the rear of the "buggy corral." Shopping carts ("buggies") are stored in the "buggy corral." Additionally, customers typically do not enter the area where the outlet is located. In opposition to the motion, the plaintiff relied on Desmon's affidavit to establish that, as Desmon waited for his aunt, Cierra Woods, to purchase her items at the customer service desk, he walked toward the "buggy corral to look at the buggies, including several race-car themed buggies that caught his eye." As Desmon approached the buggy corral, a "toy in a brightly-colored box" sitting on a shelf between the customer service desk and the buggy corral "caught his eye." Desmon then entered the area between the customer service desk and the buggy corral and "slipped on a puddle of standing water on the floor." According to Desmon's affidavit, the shopping carts in the corral were wet with rainwater. "As he was falling to the floor near the buggy corral," Desmon stretched out his arms and cut his left arm on the "face-plate of a metal electrical outlet sticking out from a nearby support pole."
Concerning the water on the floor, the plaintiff argued that the store had actual knowledge of the existence of the unreasonably dangerous condition prior to Desmon's fall. According to the plaintiff, "it's almost certain" that Winn-Dixie's employees created the puddle on the floor by failing to dry the rainwater on the shopping carts before placing them into the corral. Alternatively, she maintained that Winn-Dixie had constructive notice of the existence of the puddle because it rained on the day of Desmon's fall and the store did not have a policy of drying shopping carts before placing them into the buggy corral.
The plaintiff also asserted that La. C.C. art. 2317.1 applies to her cause of action concerning the electrical outlet, which she described in her opposition as an "industrial-type metal plug with a sharp face covering" "protruding" from a support post eighteen inches from the ground. According to the plaintiff, consideration of the risk-utility balancing test weighs against granting summary judgment and demonstrates that the risk posed by the metal face plate outweighed any benefit of using this type of outlet in this location.
The trial court granted Winn-Dixie's motion at the conclusion of the contradictory hearing on April 12, 2021, finding no evidence the outlet was unreasonably dangerous. A written judgment in conformity with this ruling was signed on May 4, 2021, dismissing the plaintiff's claims with prejudice.
The plaintiff filed the instant appeal, seeking reversal of this judgment. In her assignments of error, the plaintiff maintains that the trial court erred by failing to find that multiple dangerous conditions, "working in tandem," caused Desmon's injury, not just the electrical outlet, and that the trial court failed to apply the theory of "attractive nuisance." (Emphasis original.) She further asserts that the trial court failed to "give proper weight" to evidence establishing there was water on the floor and failed to consider the "proper standard of inquiry" under La. C.C. art. 2317.1 and/or La. R.S. 9:2800.6, despite evidence "which tended to show" that Winn-Dixie's employees caused the dangerous condition to exist.
DISCUSSION
Standard of Review and Burden of Proof
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Applying this standard, appellate courts review evidence de novo to determine whether summary judgment is appropriate. Primeaux v. Best Western Plus Houma Inn, 2018-0841 (La. App. 1st Cir. 2/28/19), 274 So.3d 20, 26.
An issue is genuine if reasonable persons could disagree. If reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. A fact is "material" if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Primeaux, 274 So.3d at 27.
As mover, Winn-Dixie has the burden of proof on the motion. However, since Winn-Dixie will not bear the burden of proof at trial on the issues raised in the motion, it is only required to point out the absence of factual support for one or more elements essential to the plaintiff's claims. Once the motion for summary judgment has been properly supported by Winn-Dixie, the burden shifts to the plaintiff to produce factual support sufficient to establish the existence of a genuine issue of material fact or that Winn-Dixie is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1); Primeaux, 274 So.3d at 27.
Water on the Floor
Louisiana Revised Statutes 9:2800.6(A) states that "[a] merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions that reasonably might give rise to damage." To succeed under this statute, the claimant must prove: (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 that caused the damage, prior to the occurrence, (3) the merchant failed to exercise reasonable care. La. R.S. 9:2800.6(B).
The Merchant Liability Statute further provides that "constructive notice" means "the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." La. R.S. 9:2800.6(C)(1). This is often referred to as the "temporal element" of the plaintiff's burden of proof. See Adams on Behalf of D.K. v. Wal-Mart Stores, Inc. Store #542, 2018-1706 (La. App. 1st Cir. 9/27/19), 286 So.3d 452, 455. Though the time period need not be specific in minutes or hours, constructive notice requires the plaintiff to make a positive showing that the condition existed for some time period prior to the fall. Adams, 286 So.3d at 454-55. Absent some showing of the temporal element, there can be no inference of constructive notice. Batiste v. United Fire & Casualty Co., 2017-482 (La. App. 5th Cir. 3/14/18), 241 So.3d 491, 498. Mere speculation or suggestion is not enough to meet the stringent burden imposed upon a plaintiff by La. R.S. 9:2800.6. The merchant does not have to make a positive showing of the absence of the existence of the condition prior to the slip and fall. Adams, 286 So.3d at 454-55.
Here, Desmon's affidavit sets forth that he slipped in a "puddle of standing water on the floor" as he entered the area near the outlet, between the buggy corral and the customer service desk. It rained on the day of the incident, and both Ms. Woods and Desmon observed that the buggies were wet. Leonard Lenel, the store manager at the time of Desmon's fall, responded affirmatively that buggies are sometimes returned to the corral while they are wet with rainwater, although he did not testify that this, in fact, occurred on the date of Desmon's fall. Based on these circumstances, the plaintiff maintains that "it's almost certain" the store employees created the puddle that caused Desmon's fall.
Winn-Dixie criticizes Desmon's affidavit as "self-serving," but it did not object to the affidavit. Since Desmon's affidavit is proper summary judgment evidence and does not contradict prior testimony provided to the court, the affidavit must be considered. La. C.C.P. art. 966(A)(4) and (D)(2); Dean v. De La Salle of New Orleans, Inc., 2021-0388 (La. App. 4th Cir. 12/21/21), 334 So.3d 425, 431, defining a "self-serving" affidavit as one that is inconsistent with previous sworn depositions (with no explanation for the inconsistencies), is offered after the motion for summary judgment was filed, and claims to create an issue of material fact.
In its reply, Winn-Dixie objected to Ms. Woods's affidavit, attached to the plaintiff's opposition. Winn-Dixie asserted that the affidavit contradicts Ms. Woods's previous deposition testimony. The trial court did not expressly rule on the objection as required by La. C.C.P. art. 966(D)(2). Winn-Dixie raises the same issue on appeal and asserts that this court should not consider Ms. Woods's affidavit. We disagree that the affidavit presents a conflicting account of the material facts. Particularly, Ms. Woods asserted in both her affidavit and during her deposition that it was raining on the date of the incident and that she observed rainwater on the buggies. To the extent Ms. Woods's affidavit and deposition are inconsistent as to whether she observed water on the floor, we find this is immaterial since Desmon attests that he slipped in water. We further note that the trial court overruled Winn-Dixie's objection to photographs attached to the plaintiff's opposition and authenticated in Ms. Woods's affidavit.
The plaintiff "invokes" the doctrine of res ipsa loquitor to establish actual knowledge. Louisiana courts have rejected the application of res ipsa loquitor in cases arising under La. R.S. 9:2800.6, and we do so here. See Mayes v. Wausau Underwriters Ins. Co., 2012-465 (La. App. 3d Cir. 12/12/12), 104 So.3d 785, 795; Williamson v. Wal-Mart Stores, Inc., 48,576 (La. App. 2nd Cir. 1/8/14), 130 So.3d 478, 481, declining to apply res ipsa loquitor because the "legislature has instructed courts to apply La. R.S. 9:2800.6 to slip and fall cases since its inception."
This argument fails, primarily because the evidence establishes that Desmon did not fall in the buggy corral or in an area where wet buggies are stored or where they may travel. Instead, Desmon fell in a narrow, rectangular-shaped space near the buggy corral, which has a metal support post in the center of its entrance (upon which the outlet at issue was mounted), a half wall on the left (which forms part of the customer service desk), the store's front wall/windows at the rear, and a bumper on the edge of the buggy corral on the right. Notably, the bumper stops buggies from rolling into the area were Desmon fell, and the testimony and evidence established that buggies could not enter this area. Witnesses also testified, and the photographs confirm, that the floor of the buggy corral is lined with carpet to absorb water. Mr. Lenel confirmed that he has never seen water seep under the carpet "and cause the floor underneath to become wet." Finally, the evidence shows that employees do not move buggies through the area where Desmon fell, and customers do not access the buggies from this area, which is on the opposite end of the buggy corral's opening. The evidence does not create a genuine issue of material fact concerning whether the store's employees created the allegedly unreasonable dangerous condition, which Desmon claims caused him to fall. Mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Hernandez v. Livingston Parish School Board, 2021-0764 (La. App. 1st Cir. 3/30/22), 341 So.3d 680, 686.
Similarly, we find no genuine issue of material fact remains on the issue of Winn-Dixie's constructive knowledge. Winn-Dixie established that this area is not a passageway or area of the store where employees are typically present. Winn-Dixie store manager, Jason B. Langston, confirmed in his deposition that the area was a "blank area" only accessed by employees, typically at night, who use the outlet at issue to charge electronic shopping carts. Additionally, the plaintiff failed to demonstrate that she will be able to make the required positive showing that the puddle existed for "some time period" prior to Desmon's fall. Adams, 286 So.3d at 455. Evidence that it rained on the day of the incident is alone insufficient to satisfy this element of the plaintiff's burden of proof. See Kennedy v. Wal-Mart Stores, Inc., 98-1939 (La. 4/13/99), 733 So.2d 1188, 1191 (per curiam), wherein the plaintiff testified that the area where he fell was within view of the customer service podium and that it was raining on the evening he fell. The Louisiana Supreme Court found this evidence alone was insufficient to satisfy the plaintiff's burden of proving the store's constructive notice of the condition. The plaintiff presented no evidence as to the length of time the puddle was on the floor before his accident. Kennedy, 733 So.2d at 1191.
The plaintiff's reliance on Winn-Dixie's "scant safety policies" to support her position regarding constructive notice is misplaced. Whether a merchant has a safety policy, whether that policy specifically provides how often employees are to inspect for unsafe conditions, and whether any such policy was violated aid a trial court in determining whether a merchant failed to exercise reasonable care under the merchant liability statute. Blackman v. Brookshire Grocery Co., 2007-348 (La. App. 3d Cir. 10/3/07), 966 So.2d 1185, 1190. Louisiana Revised Statutes 9:2800.6(B)(3) states, "[i]n 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." We do not address whether Winn-Dixie failed to exercise reasonable care since we find the plaintiff failed to establish that Winn-Dixie had actual or constructive knowledge of the unreasonably dangerous condition.
Exhibit B to the plaintiff's opposition appears to be weather data intended to establish that it rained in the city where the store is located on the date of the incident. Winn-Dixie objected to this document in its reply; however, the trial court did not expressly rule on the objection. We note this unauthenticated document is not proper summary judgment evidence and has no evidentiary value. La. C.C.P. art. 966(A)(4); Hernandez, 341 So.3d at 684, n.2. Nevertheless, the exclusion of this document is inconsequential, since both Desmon and Ms. Woods established that it was raining on the date of the incident.
In Fountain v. Wal-Mart Stores, Inc., 2019-669 (La. App. 3d Cir. 3/18/20), 297 So.3d 100, 109, the court recognized that, pursuant to Kennedy, the burden of proving constructive notice is not satisfied by evidence that it was raining, that the area where the fall occurred was visible to store personnel, and/or that the store should have foreseen the hazard created by rain puddles at or near the entrance of this high volume store because it knew it was raining. The court in Fountain concluded that the plaintiff, who established only that he fell in a puddle of water on a rainy day, failed to satisfy the temporal element of his burden of proof and affirmed the judgment granting the store's motion for summary judgment. Fountain, 297 So.3d at 109. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the Merchant Liability Statute. Adams, 286 So.3d at 455. Upon our de novo review, we find no merit in the plaintiff's assignments of error on this issue and find that summary judgment was properly granted to dismiss the plaintiff's cause of action concerning the water on the floor.
Electrical Outlet
The parties disagree whether La. R.S. 9:2800.6 or La. C.C. art. 2317.1 applies to the plaintiff's claim concerning the electrical outlet.
As noted, La. R.S. 9:2800.6 creates a duty upon a merchant to keep his aisles, passageways, and floors in a reasonably safe condition. This statute also expressly states, "[n]othing herein" shall affect any liability a merchant may have under La C.C. art. 2317. La. R.S. 9:2800.6(D). Thus, not all tort causes of action against merchants are governed by this statute. Bryant v. Premium Food Concepts, Inc., 2016-0770 (La. App. 1st Cir. 4/26/17), 220 So.3d 79, 83, writ denied, 2017-0873 (La. 9/29/17), 227 So.3d 288.
Pursuant to La. C.C. art. 2317, we are responsible for damage caused by things in our custody. Louisiana Civil Code article 2317.1 states,
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
For liability to attach under Article 2317.1, the plaintiff has the burden of proving: (1) the property that caused the damage was in the defendant's "custody," (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. Tomaso v. Home Depot, U.S.A., Inc., 2014-1467 (La. App. 1st Cir. 6/5/15), 174 So.3d 679, 682. The plaintiff must show that the owner or custodian could have prevented the damage by the exercise of reasonable care and that the owner failed to exercise such reasonable care. The failure of any one of these elements is fatal to the plaintiff's case. Cipolla v. Cox Communications Louisiana, LLC, 2019-0509 (La. App. 4th Cir. 8/5/20), 305 So.3d 911, 917, writ denied, 2020-01123 (La. 11/10/20), 303 So.3d 1035.
Thus, regardless of whether La. R.S. 9:2800.6 or La. C.C. art. 2317.1 applies here, the plaintiff must prove that the electrical outlet presented an unreasonable risk of harm, that Winn-Dixie had actual or constructive knowledge of the risk, and that it failed to exercise reasonable care.
The fact that the outlet allegedly caused Desmon's injury alone does not establish that a dangerous condition existed. McCoy v. Manor, 2018-1228 (La. App. 1st Cir. 5/9/19), 277 So.3d 344, 348 ("the existence of a defect may not be inferred solely from the fact that an accident occurred.") To determine whether a condition presents an unreasonable risk of harm, courts apply the risk-utility balancing test, which requires consideration of four factors: (1) the utility of the complained-of condition, (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition, (3) the cost of preventing the harm, and (4) the nature of the plaintiff's activities in terms of its social utility or whether they are dangerous by nature. Cheramie v. Port Fourchon Marina, Inc., 2016-0895 (La. App. 1st Cir. 2/17/17), 211 So.3d 1212, 1216, writ denied, 2017-0499 (La. 5/12/17), 221 So.3d 73. The plaintiff concedes that the outlet has utility since it is used by employees to charge electric shopping carts. The likelihood and magnitude of harm from this outlet in this location are not great, considering Winn-Dixie's unrefuted evidence that the outlet was mounted securely to a support post and was not "dangling" or "wobbly." The outlet was secured to the back of the support post, facing away from customer traffic, but was not concealed or camouflaged in any way. Mr. Lenel testified that, in his recollection, no other customers have been cut or scrapped by this outlet.
Although the plaintiff asserts that the placement of the outlet eighteen inches above the ground made the likelihood of harm great, she offered no evidence to support this theory. The same is true regarding the plaintiff's assertion that Winn-Dixie failed to "explain" its use of this type of outlet cover, rather than "a more conventional plastic cover with smooth edges." The plaintiff's conclusory allegation and unsupported speculation do not support a finding of a genuine issue of material fact. Hernandez, 341 So.3d at 686.
The plaintiff asserts that the cost of replacing the outlet cover would be a "mere pittance." While she may be correct that the cost to replace this particular outlet cover may be minimal, the cost of replacing all similar covers or moving every "protruding" outlet in all of Winn-Dixie's locations, and possibly other similar public spaces, would be significantly greater. See Smith v. The Runnels Schools, Inc., 2004-1329 (La. App. 1st Cir. 3/24/05), 907 So.2d 109, 113, recognizing that, although it would "probably cost nothing" to move the injury-causing bench in the gym, the cost of moving every potential obstacle at the same distance from the basketball court of every high school basketball court is inestimable.) Finally, there was no social utility to Desmon's activity immediately before he fell nor was it dangerous in nature. He was walking in the aisle while Ms. Woods paid for her items, then wandered toward the shopping carts and eventually into the area where he was injured. Thus, the risk-utility balancing test weighs in favor of finding the outlet was not unreasonably dangerous. We also find this evidence demonstrates that Winn-Dixie lacked actual or constructive notice that the outlet presented an unreasonable risk of injury.
Exhibit H to the plaintiff's opposition appears to be a screenshot of Amazon's website intended to establish the purported cost of replacing the metal outlet cover with a plastic cover. Winn-Dixie objected to this document in its reply; however, the trial court did not expressly rule on the objection. This unauthenticated document is not proper summary judgment evidence and has no evidentiary value. La. C.C.P. art. 966(A)(4); Hernandez, 341 So.3d at 684, n.2. We also note this document does not purport to establish the total cost of replacing all similar outlet covers throughout all of Winn-Dixie's stores. Finally, we decline plaintiff's request that we take judicial notice of the availability of this and other similar products for delivery through Amazon.com. La. C.E. art. 201.
Thus, we find the plaintiff failed to produce factual support sufficient to establish the existence of a genuine issue of material fact as to whether the complained of condition created an unreasonable risk of harm, and whether Winn-Dixie had actual or constructive notice of the alleged unreasonably dangerous condition. Therefore, we conclude that the trial court properly granted summary judgment in favor of Winn-Dixie and dismissed the plaintiff's claim. The plaintiff's assignments of error on this issue are without merit.
Attractive Nuisance and Combination of Multiple "Hazards"
Finally, we reject the plaintiff's argument that the theory of attractive nuisance should be applied to defeat summary judgment. Unless a hidden trap or inherently dangerous instrumentality peculiarly attractive to children exists, there can be no application of the doctrine. Generally, the doctrine of attractive nuisance is to be accorded limited application and employed by the courts only with caution.
The plaintiff did not allege attractive nuisance in her petition for damages, and the allegations concerning the "brightly colored box" and "race-car themed buggies" were raised for the first time in the plaintiff's opposition to Winn-Dixie's motion. To provide a comprehensive review of the record, we nevertheless address the plaintiff's allegations on this issue.
The inherently dangerous instrumentality or condition must be of a nature likely to incite the curiosity of a child and fraught with such danger as to reasonably require precaution to prevent children from making improper use of it. Pinegar v. Harris, 2008-1112 (La. App. 1st Cir. 6/12/09), 20 So.3d 1081, 1087. While store merchandise (a toy) and "race-car themed buggies" may be expected to attract the attention and curiosity of a child, neither object is inherently or unreasonably dangerous, and neither caused injury to Desmon.
Because we have found no genuine issue of material fact remains and that Winn-Dixie is entitled to summary judgment, dismissing the plaintiff's claims under La. R.S. 9:2800.6 and La. C.C. art. 2317.1, and we find the theory of attractive nuisance does not apply, we likewise find no merit in the plaintiff's argument that multiple hazards combined to cause Desmon's injury, creating a "`perfect storm' of danger, where the likelihood of injury was almost certain."
CONCLUSION
For the foregoing reasons, we affirm the May 4, 2021 judgment, granting the motion for summary judgment filed by Winn-Dixie Montgomery, LLC and dismissing the claims asserted by Ashley Woods on behalf of her minor child, Desmon Herald, with prejudice. All costs of this appeal are assessed to the plaintiff, Ashley Woods.