Rogers v. Walk-On's Bistreaux & Bar

329 So.3d 403

Kimberly ROGERS

v.WALK-ON'S BISTREAUX & BAR, et al.

21-181

Court of Appeal of Louisiana, Third Circuit.

October 6, 2021

Brian Caubarreaux & Associates, Brian M. Caubarreaux, Eugene A. Ledet Jr., Ethan E. Caubarreaux, Patrick B. Sadler, David A. Johnson, 2204 MacArthur Drive, Alexandria, LA 71303, (318) 442-0900, COUNSEL FOR PLAINTIFF/APPELLANT: Kimberly Rogers

Keiser Law Firm, P.L.C., Randall B. Keiser, Matthew L. Nowlin, Post Office Box 12358, Alexandria, LA 71315-2358, (318) 443-6168, COUNSEL FOR DEFENDANTS/APPELLEES: All-In Restaurant Group, LLC State Farm Fire and Casualty Company

Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.

Pickett, J.

The plaintiff appeals the trial court's grant of the defendants’ motion for summary judgment and dismissal of her claims for injuries she allegedly suffered when she slipped and fell at a restaurant owned and operated by one of the defendants. We reverse the trial court's judgment.

FACTS

On January 28, 2018, Kimberly Rogers and her family went to Walk-On's restaurant in Alexandria for lunch. After being seated, Ms. Rogers stepped from their table with her grandson to bring him to the restroom. She had never been to the restaurant before. Initially, she looked in one direction to find the restroom but was redirected to another area of the restaurant by an employee who was placing a mat on a ramp. As instructed, Ms. Rogers turned and walked in the direction instructed by the employee. When approaching stairs leading to the restroom, Ms. Rogers slipped and fell injuring her back and neck.

Ms. Rogers filed suit against Walk-On's owner All-In Restaurant Group, LLC and its insurer, State Farm Fire and Casualty Company, seeking damages for her injuries. In her petition, Ms. Rogers alleged that she slipped and fell due to a "foreign substance located on the floor." After filing an answer, the defendants initiated discovery and deposed Ms. Rogers on August 6, 2019. Thereafter, they filed a motion for summary judgment seeking dismissal of Ms. Rogers’ claims, asserting that she cannot satisfy her burden of proving that they are liable to her under La.R.S. 9:2800.6, commonly referred to as the merchant liability statute.

The defendants’ motion for summary judgment was set for hearing on February 10, 2020. Ms. Rogers did not file an opposition and did not attend the hearing on the motion. After considering the motion and the defendants’ arguments, the trial court granted the motion and issued a judgment dismissing Ms. Rogers’ claims. After receiving a copy of the judgment, Ms. Rogers filed a motion to have the judgment set aside because she did not receive notice of the hearing thirty days before it was conducted as required by La.Code Civ.P. art. 966(C)(1)(b). The trial court granted the motion, and the hearing on the motion for summary judgment was re-set.

Ms. Rogers then filed an opposition to the motion for summary judgment to which she attached a complete copy of her deposition and two affidavits. The defendants responded with a motion to strike the two affidavits, urging they do not satisfy the requirements of La.Code Civ.P. art. 967. At the conclusion of the second hearing, the trial court denied the motion to strike Ms. Rogers’ two affidavits. After considering counsels’ final arguments, the trial court granted summary judgment in favor of the defendants. Ms. Rogers appealed.

ASSIGNMENTS OF ERROR

Ms. Rogers assigns error with the trial court's judgment granting the defendants’ motion for summary judgment. The defendants answered the appeal, urging that the trial court erred in admitting Ms. Rogers’ affidavits into evidence.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo, using the same criteria as the trial court. Gray v. Am. Nat'l Prop. & Cas. Co. , 07-1670 (La. 2/26/08), 977 So.2d 839. To succeed on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that he "is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3). "A fact is ‘material’ when its existence or nonexistence may be essential to plaintiff's cause of action[.]" Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 (citation omitted). For summary judgment purposes, a genuine issue of material fact is "one as to which reasonable persons could disagree." Estate of Belaire v. Crawfish Town USA , 15-180, p. 12 (La.App. 3 Cir. 12/9/15), 182 So.3d 1093, 1100 (citation omitted).

"The burden of proof rests with the mover." La.Code Civ.P. art. 966(D)(1). If, however, "the mover will not bear the burden of proof at trial on the issue before the court on the motion for summary judgment," the mover is not required "to negate all essential elements of the adverse party's claim, action, or defense[.]" Id . Instead, the mover need only show "the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." Id. The adverse party must then "produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

When considering a motion for summary judgment, courts are not to evaluate the weight of the evidence but to determine whether there is a genuine issue of triable fact. Maggio v. Parker , 17-1112 (La. 6/27/18), 250 So.3d 874. Summary judgments are favored; however, "factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor." Willis v. Medders , 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

DISCUSSION

Ms. Roger's burden of proving her claims is set forth in La.R.S. 9:2800.6, which provides, in pertinent 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, all of the following:

(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.

(3) The merchant failed to exercise reasonable care. In 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.

Merchants have an affirmative duty to keep their premises in a safe condition. La.R.S. 9:2800.6(A). Nonetheless, "merchants are not insurers of their patrons’ safety," and customers have a concurrent "duty to use ordinary care to avoid injury." Marks v. Schultz , 20-197, p. 7 (La.App. 1 Cir. 12/10/20), 316 So.3d 534, 539.

As outlined in La.R.S. 9:2800.6(B), the plaintiff in a slip-and-fall case bears a heavy burden. Thibodeaux v. Circle K Stores, Inc ., 20-540 (La.App. 3 Cir. 5/5/21), 318 So.3d 465. First, the plaintiff must establish that a condition of the merchant's premises presented an unreasonable risk of harm, which can be done by showing she slipped and fell due to "a foreign substance on a floor or an unreasonably slippery condition." Burnett v. M & E Food Mart, Inc. No. 2 , 00-350, p. 3 (La.App. 3 Cir. 11/15/00), 772 So.2d 393, 396, (footnote omitted) writ denied , 00-3425 (La. 2/16/01), 786 So.2d 101. This requires the plaintiff to make "a positive showing of the existence of the condition prior to the fall" and that the condition "existed for some time before the fall" in order to prove the owner had constructive notice of the condition as required by La.R.S. 9:2800.6(B)(2). White v. Wal-Mart Stores, Inc., 97-393, p. 4 (La. 9/9/97), 699 So.2d 1081, 1084. The plaintiff need not make a specific showing in minutes or hours as to how long the condition existed prior to the fall to satisfy this time requirement. Id .

In their motion for summary judgment, the defendants urge that Ms. Rogers failed to show she can satisfy her burden of proof under La.R.S. 9:2800.6 because she cannot show that there was a foreign substance on the floor which caused her to slip and fall and Walk-On's caused a foreign substance to be on the floor or had actual or constructive notice of any foreign substance being on the floor before she fell as required by La.R.S. 9:2800.6.

The defendants supported their motion with excerpts of Ms. Rogers’ deposition and the affidavit of Ricky Tompkins, All-In's manager for the Alexandria Walk-On's. In his affidavit, Mr. Tomkins averred, in part:

(1) The interior premises of the restaurant were inspected prior to opening;

(2) At no point prior to opening did any person report any issue or problems with the area where Kimberly Rogers fell; and

(3) No manager has any recollection of any foreign substance report prior to the incident involving Kimberly Rogers.

The defendants urge that the trial court erred in denying their motion to strike the affidavits supporting Ms. Rogers’ opposition to their motion because her affidavit is inconsistent with her deposition testimony¹ and Ms. Hart's affidavit is not based on personal knowledge.

Personal Knowledge

During the hearing on the motion for summary judgment, counsel for Ms. Rogers urged that her affidavit need not be addressed because Casi Hart's affidavit contradicts Mr. Tompkins’ affidavit; therefore, a genuine issue of material fact exists which defeats the defendants’ motion for summary judgment. Accordingly, we begin with the defendants’ complaint that the trial court erred in allowing Casi Hart's affidavit to be introduced into evidence.

Louisiana Code of Civil Procedure 967(A) requires that affidavits submitted in support or opposition to a motion for summary judgment be made on personal...