182 So. 3d 324
La. Ct. App.2015Background
- Terry Collins slipped on liquid streaks in a Home Depot lumber aisle on Feb. 14, 2012; plaintiffs sued Home Depot (and later joined ISS, the contracted janitorial company).
- ISS had a Maintenance Services Agreement with Home Depot to provide floor-cleaning equipment, labor, and training obligations; ISS employees were paid by ISS and used ISS equipment.
- Collins testified he visited the aisle twice within ~25–30 minutes; he did not see cleaning during his first visit but saw an ISS floor-cleaning machine at the far end after he fell.
- Home Depot produced affidavits and the contract showing ISS was an independent contractor, that Home Depot did not control ISS employees' methods, and that no prior complaints or incidents involving streaks had been reported.
- Plaintiffs argued Home Depot retained sufficient control via contract safety/training clauses and pointed to Collins’s timing testimony as evidence the streaks existed long enough to give constructive notice.
- Trial court granted Home Depot summary judgment (dismissal with prejudice); appellate court affirms, holding plaintiffs failed to show Home Depot created the condition or had constructive notice under La. R.S. 9:2800.6.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Home Depot created the hazardous condition (vicarious liability for ISS employees) | ISS employees acted as Home Depot employees; Home Depot retained operational control (safety/training clauses) | ISS was an independent contractor; Home Depot lacked authority/control over ISS methods or personnel | Home Depot did not create condition; ISS was independent contractor and no vicarious liability |
| Whether Home Depot had constructive notice of the liquid streaks | Collins’s testimony about two visits ~25–30 minutes apart shows streaks existed long enough for constructive notice | No positive evidence establishing how long streaks were present; absence of complaints or reports | Plaintiffs failed to show constructive notice; Collins’s timing testimony is speculative |
| Whether evidence raised a genuine issue of material fact to survive summary judgment | Contract safety provisions and post-fall observations create triable issues | Home Depot met prima facie burden pointing to lack of factual support for essential elements; plaintiffs offered no positive evidence | No genuine issue of material fact; summary judgment proper |
| Whether plaintiffs met statutory burden under La. R.S. 9:2800.6 | Argued statutory elements (risk, notice/creation, failure to exercise care) satisfied | Plaintiffs did not prove merchant created/had notice; absent these, statutory claim fails | Plaintiffs failed to meet La. R.S. 9:2800.6 burden; claim dismissed |
Key Cases Cited
- Prince v. K-Mart Corp., 815 So.2d 245 (discussing appellate standard for summary judgment)
- Duncan v. U.S.A.A. Ins. Co., 950 So.2d 544 (summary judgment review standards)
- Trench v. Winn-Dixie Montgomery LLC, 150 So.3d 472 (merchant statutory burden under La. R.S. 9:2800.6)
- White v. Wal-Mart Stores, Inc., 699 So.2d 1081 (merchant liability framework for slip-and-fall claims)
- Thompson v. Winn-Dixie Montgomery, Inc., 181 So.3d 656 (operational-control test for vicarious liability re: third-party contractors)
- Hickman v. Southern Pacific Transp. Co., 262 So.2d 385 (factors for distinguishing independent contractor vs. employee)