Burns v. Sedgwick Claims Management Services, Inc.
165 So. 3d 147
La. Ct. App.2014Background
- Plaintiff Elouise Burns sued Winn-Dixie Montgomery, LLC for a slip-and-fall at a Westwego Winn-Dixie on December 19, 2011.
- Winn-Dixie moved for summary judgment on August 2, 2013, asserting no genuine issue and lack of notice under La. Rev. Stat. 9:2800.6.
- Plaintiff testified in deposition that she did not see any liquid and did not know how long it had been on the floor.
- Plaintiff opposed, asserting proximity to cash registers showed constructive notice; Allison law-clerk affidavit supported inspection proximity.
- Trial court granted summary judgment on September 26, 2013; plaintiff sought a new trial, which the trial court denied after a contradictory hearing on January 15, 2014.
- Appellate review is de novo; the court affirmed the summary judgment, holding plaintiff failed to prove the temporal element of constructive notice under 9:2800.6.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is summary judgment proper on notice under 9:2800.6? | Burns argues notice could be shown by proximity and discovery evidence. | Winn-Dixie contends plaintiff fails to prove actual or constructive notice. | Yes; summary judgment proper for lack of proof of notice. |
| Is the temporal element indispensable for constructive notice under 9:2800.6? | Burns contends temporal element not required due to store employees’ presence. | Winn-Dixie argues temporal element required. | Indispensable; temporal element required to prove constructive notice. |
| Is the Allison affidavit and proximity evidence sufficient to create a material fact? | Affidavit shows visibility to cash registers and near-incident conditions. | Evidence is insufficient to prove constructive notice; absence of wet-floor signs not enough. | Insufficient to create material fact; judgment affirmed. |
| Was the denial of the motion for a new trial proper? | New evidence discovered post-hearing should defeat summary judgment. | New evidence not newly discovered or due diligence lacking. | No abuse of discretion; new-trial denial affirmed. |
Key Cases Cited
- Babin v. Winn-Dixie Louisiana, Inc., 764 So.2d 37 (La. 2000) (constructive notice requires an affirmative temporal showing)
- White v. Wal-Mart Stores, Inc., 699 So.2d 1081 (La. 1997) (constructive notice requires temporal element evidence)
- Trench v. Winn-Dixie Montgomery LLC, 150 So.3d 472 (La.App. 5th Cir. 2014) (applicable framework for notice and summary-judgment standards)
- Sheffie v. Wal-Mart Louisiana LLC, 134 So.3d 80 (La.App. 5th Cir. 2014) (clarifies temporal element and constructive notice)
- Flowers v. Wal-Mart Stores, Inc., 99 So.3d 696 (La.App. 5th Cir. 2012) (evidence requirements for constructive notice)
- Premier Restaurants, Inc. v. Kenner Plaza Shopping Ctr., L.L.C., 767 So.2d 927 (La.App. 5th Cir. 2000) (unsworn statements lacking evidentiary weight)