241 So. 3d 491
La. Ct. App.2018Background
- On Nov. 9, 2014, Quentella Batiste slipped and fell in the beer/beverage aisle of Veron’s Supermarket and alleged she injured her left shoulder requiring surgery.
- Plaintiffs sued Veron’s Supermarket and its insurer under La. R.S. 9:2800.6 (merchant liability), claiming a puddle of liquid caused the fall and that the store had constructive notice.
- Defendant moved for summary judgment arguing plaintiffs could not prove the temporal element of constructive notice (i.e., that the condition existed long enough for store to discover it). Defendant submitted employee depositions and 55 seconds of surveillance video showing the fall and no visible spill.
- Plaintiffs sought an adverse inference for spoliation, alleging the store destroyed additional pre‑ and post‑incident surveillance footage and also pointed to a missed initial on a floor‑check log to show failure to follow cleanup policy.
- Trial court granted summary judgment for defendant; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive notice (temporal element) under La. R.S. 9:2800.6 | Batistes: evidence (employee testimony, missed log entry, and plaintiffs’ observations) shows the store failed to exercise reasonable care and thus had constructive notice of a puddle existing before the fall | Veron’s: plaintiffs have no positive evidence the liquid existed for any period before the fall; employee testimony and surveillance do not show a pre‑existing spill | Held for defendant: plaintiffs failed to make a positive showing that the condition existed for any period before the fall, so constructive notice not established |
| Failure to exercise reasonable care (store procedures/logs) | Batistes: cashier Evonté Brown failed to initial the 10:00 a.m. walk‑around log, showing the store did not perform scheduled checks and thus failed reasonable care | Veron’s: missed initial does not prove the walk‑around was not done; even if inspections were imperfect, that does not prove how long a condition existed | Held for defendant: log omission insufficient to prove the temporal element or that a hazardous condition existed prior to the fall |
| Spoliation / adverse presumption for destroyed surveillance video | Batistes: store intentionally destroyed relevant portions of video that would have shown the hazard existed for longer, so adverse presumption should apply | Veron’s: preserved and produced the relevant 55‑second clip; system automatically recorded over old footage every ~3 months; no admissible evidence of intentional destruction | Held for defendant: no admissible evidence of intentional spoliation; preserved footage corroborates employees and fails to show a pre‑existing hazard |
| Sufficiency of record to survive summary judgment | Batistes: genuine issues of material fact exist (video gaps, employee log, conflicting testimony) | Veron’s: record lacks positive evidence of the essential temporal element; movant met its burden and plaintiffs cannot show they will prove constructive notice at trial | Held for defendant: summary judgment properly granted because plaintiffs cannot show they will be able to prove all elements of La. R.S. 9:2800.6 at trial |
Key Cases Cited
- White v. Wal‑Mart Stores, Inc., 699 So.2d 1081 (La. 1997) (constructive notice requires proof the condition existed for some period before the fall)
- Babin v. Winn‑Dixie La., Inc., 764 So.2d 37 (La. 2000) (mere speculation about condition’s duration is insufficient to show constructive notice)
- Flowers v. Wal‑Mart Stores, Inc., 99 So.3d 696 (La. App. 5 Cir.) (summary judgment review and application of La. R.S. 9:2800.6 temporal element)