209 So. 3d 352
La. Ct. App.2016Background
- On Sept. 24, 2013, Marion Bertaut fell while walking in the Golden Corral restaurant in Kenner and alleged she slipped in a "puddle of water," sustaining injuries.
- Bertaut sued Corral Gulfsouth, Inc. (and its insurer) for negligence on Nov. 27, 2013.
- Corral moved for summary judgment, arguing Bertaut could not prove an unreasonable condition under La. R.S. 9:2800.6 and that a bright yellow 2–3 foot wet‑floor cone was an adequate, obvious warning.
- Surveillance video admitted by Corral showed a yellow warning cone in the ice‑cream/dessert area, Bertaut passing and looking at the cone multiple times (six times) before falling on her seventh pass, and many patrons traversing the same tile earlier.
- Corral’s witnesses denied seeing water at the corner; Bertaut conceded she did not know what was on the floor. Photographs offered by Bertaut’s husband were struck and not considered on appeal.
- Trial court granted summary judgment for Corral; the appellate court affirmed, finding Bertaut could not prove an unreasonable, unwarned condition or insufficient warning placement under La. R.S. 9:2800.6.
Issues
| Issue | Bertaut's Argument | Corral's Argument | Held |
|---|---|---|---|
| Whether a genuine issue exists that the floor condition presented an unreasonable risk of harm under La. R.S. 9:2800.6(1) | Bertaut: She slipped in a puddle and therefore condition was hazardous; authenticity and obviousness of hazard disputed | Corral: Video and testimony show no identifiable puddle at the alleged spot and Bertaut could not prove the condition | Held: No genuine issue — evidence insufficient to show an unreasonable condition existed |
| Whether Corral had actual or constructive notice of the condition (La. R.S. 9:2800.6(2)) | Bertaut: Placement of a single cone suggests Corral knew of a hazard and may have failed to warn properly | Corral: Even if cone was present, routine placement near ice cream machine negates proof of notice of a specific unreasonably dangerous condition | Held: Corral met its burden to show absence of factual support for plaintiff’s claim; burden shifted and Bertaut failed to rebut |
| Whether Corral failed to exercise reasonable care in warning or cone placement (La. R.S. 9:2800.6(3)) | Bertaut: Cone placement/sole cone may have been insufficient; Corral may have assumed a duty by placing cone and not managing the hazard | Corral: Cone was a routine, reasonably placed, visible 2–3 foot yellow wet‑floor cone located adjacent to the fall site; surveillance shows Bertaut saw it multiple times | Held: Cone was an adequate, reasonably placed warning; Corral exercised reasonable care |
| Applicability of the "open and obvious" doctrine to the warning vs. the condition | Bertaut: Doctrine applies to the hazardous condition itself (the puddle), and Corral denied any hazardous condition existed so doctrine should not preclude her claim | Corral: Argued the condition (if any) was open/obvious and the cone rendered the hazard apparent | Held: Majority relied on adequacy of the warning and lack of evidence of a hazard; concurrence agreed summary judgment proper but cautioned that classic "open and obvious" analysis targets the condition itself rather than the warning |
Key Cases Cited
- Duncan v. U.S.A.A. Ins. Co., 950 So.2d 544 (La. 2006) (standard of appellate review for summary judgment)
- Bufkin v. Felipe’s La., LLC, 171 So.3d 851 (La. 2014) (risk‑utility test and consideration of obviousness/apparentness)
- Broussard v. State ex rel. Office of State Buildings, 113 So.3d 175 (La. 2013) (open and obvious hazard doctrine)
- White v. Wal‑Mart Stores, Inc., 699 So.2d 1081 (La. 1997) (burden of proof in slip‑and‑fall claims against merchants)
- Lee v. Ryan’s Family Steak Houses, Inc., 960 So.2d 1042 (La. App. 1st Cir. 2007) (two–three foot yellow wet‑floor cone is adequate warning)
- Jackson v. Delchamps, Inc., 691 So.2d 332 (La. App. 1st Cir. 1997) (reasonableness of protective measures judged by circumstances)
- Upton v. Rouse’s Enter., LLC, 186 So.3d 1195 (La. App. 5th Cir. 2016) (failure to prove any statutory element is fatal to plaintiff’s claim)