210 So. 3d 315
La. Ct. App.2016Background
- On May 10, 2013, Kimberly Bice parked a shopping cart in the appliance department at Home Depot, left it near a three-foot bollard, then backed into and fell over the bollard when trying to move the cart.
- Kimberly and her husband sued Home Depot alleging negligence in placement/appearance of the bollard (claimed it was at groin height, black and camouflaged by appliances, and advertisements drew attention upward).
- Home Depot moved for summary judgment, submitting deposition excerpts, a store photograph of the bollard, discovery responses, and evidence of no prior incidents in five years.
- The trial court granted summary judgment for Home Depot on December 7, 2015; the Bices appealed, arguing material factual disputes about whether the bollard was unreasonably dangerous and whether Home Depot had notice.
- The appellate court conducted a de novo review, applied the risk-utility balancing test and Louisiana merchant statute burdens, and found the bollard was open and obvious and the Bices failed to present evidence on essential elements (unreasonable risk, notice).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the bollard presented an unreasonably dangerous condition | Bollard was at groin height, black and blended into appliances, not obvious; triable issue exists | Bollard served a utility (protect appliances), was conspicuous in a well-lit area and photograph shows visibility | Bollard was open and obvious; plaintiffs failed to show an unreasonable risk of harm |
| Whether Home Depot had actual or constructive notice of the hazard | Implied constructive notice from placement/appearance; store should have known risk existed | No evidence of incidents or notice; no proof Home Depot created or knew of condition | Plaintiffs produced no evidence of actual or constructive notice; element unmet |
| Burden under La. R.S. 9:2800.6 for fall claims against a merchant | Plaintiffs contend factual dispute prevents summary judgment | Home Depot discharged initial burden by showing absence of factual support for essential element; burden shifted to plaintiffs | Court held Home Depot met initial burden and plaintiffs failed to produce evidence required to survive summary judgment |
| Causation / plaintiff conduct as a factor | Bollard placement caused the fall regardless of plaintiff’s conduct | Plaintiff admitted backing up without ensuring a clear path; her inattentiveness was causal | Court concluded plaintiff’s conduct contributed to the fall and bollard was obvious; no genuine issue of material fact |
Key Cases Cited
- Tomaso v. Home Depot, U.S.A., Inc., 174 So.3d 679 (La. App. 1 Cir. 2015) (summ. judgment standards and premises-liability context)
- Hines v. Garrett, 876 So.2d 764 (La. 2004) (summary judgment procedure and appellate de novo review)
- Pryor v. Iberia Parish School Bd., 60 So.3d 594 (La. 2011) (no duty for open and obvious hazards)
- Henry v. NOHSC Houma No. 1, L.L.C., 97 So.3d 470 (La. App. 1 Cir. 2012) (property custodian’s duty and elements for premises liability)
- Clark v. J-H-J, Inc., 136 So.3d 815 (La. App. 1 Cir. 2013) (materiality of facts judged by applicable substantive law)
- Moore v. Murphy Oil USA, Inc., 186 So.3d 135 (La. App. 1 Cir. 2015) (failure to prove any required element under La. R.S. 9:2800.6 is fatal to merchant claim)