171 So. 3d 984
La. Ct. App.2015Background
- Plaintiff Royanne Davis slipped at a Cheema One, Inc. gas station on April 14, 2011, on a shiny oil-like substance covered by a white, kitty-litter–like absorbent over roughly an eight-foot area, sustaining leg and ankle fractures.
- Davis sued under Louisiana’s Merchant Liability Statute, La. R.S. 9:2800.6, alleging the merchant failed to maintain premises, discover/correct the condition, and warn customers.
- Defendant Cheema moved for summary judgment conceding the foreign substance existed but arguing Davis could not prove either that Cheema created the condition or had constructive/actual notice of it.
- Key testimony: Davis said the substance looked like kitty litter and claimed an older male cashier was on duty; Cheema’s only testifying employee, Amador, denied ever seeing or placing kitty litter or oil spills and said she inspected the lot twice nightly.
- Trial court granted summary judgment dismissing the case with prejudice; the Fourth Circuit reversed in part, deleting the with-prejudice dismissal, granting partial summary judgment that Davis cannot prove constructive notice, and remanding for trial on the theory that Cheema created the condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment should dismiss the entire suit | Davis argued factual disputes exist whether a Cheema employee created the kitty-litter–like material, precluding summary judgment | Cheema argued Davis cannot prove creation, actual notice, or constructive notice of the condition | Court: Partial reversal — summary judgment improper as to creation theory (genuine factual issue); proper as to constructive-notice theory (no positive showing of temporal element) |
| Whether constructive notice under La. R.S. 9:2800.6 was established | Davis argued inspections began at midnight and condition could have existed earlier, allowing inference it existed long enough to be discovered | Cheema relied on employee testimony denying knowledge, sightings, or cleanup involving absorbent material | Held: Davis failed to make the required positive showing that the condition existed for some time before the fall; constructive notice dismissed by partial summary judgment |
| Whether the merchant created the condition (avoiding notice element) | Davis pointed to common practice (gas stations use absorbents) and testimony suggesting another older male cashier was on duty, supporting an inference Cheema placed the absorbent | Cheema relied on Amador’s testimony that she never used kitty litter, saw spills, or had reports of accidents | Held: Credibility and factual disputes create genuine issue for trial; summary judgment inappropriate on creation theory |
| Law-of-the-case and scope of appellate partial judgment | N/A (procedural/impact issue) | Cheema sought final dismissal; Davis sought reversal | Court: Amended judgment to grant partial summary judgment dismissing constructive/actual notice theory; that ruling is binding on remand (law-of-the-case), and case remanded on creation theory only |
Key Cases Cited
- Hare v. Paleo Data, 89 So.3d 380 (La. App. 4th Cir. 2012) (de novo standard for appellate review of summary judgment)
- Catahoula Parish Sch. Bd. v. La. Machinery Rentals, 124 So.3d 1065 (La. 2013) (summary judgment standards)
- Hines v. Garrett, 876 So.2d 764 (La. 2004) (view evidence and inferences favorably to non-movant)
- White v. Wal-Mart, 699 So.2d 1081 (La. 1997) (plaintiff must make a positive showing of the temporal element for constructive notice under La. R.S. 9:2800.6)
- Beggs v. Harrah’s New Orleans Casino, 158 So.3d 917 (La. App. 4th Cir. 2015) (circumstantial evidence may support constructive notice)
- Ruby v. Jaeger, 759 So.2d 905 (La. App. 4th Cir. 2000) (merchant-creation inference can support liability under La. R.S. 9:2800.6)
- Babin v. Winn-Dixie Louisiana, 764 So.2d 37 (La. 2000) (speculation insufficient to meet summary judgment opposition burden)
- Kennedy v. Wal-Mart Stores, 733 So.2d 1188 (La. 1999) (summary judgment principles in merchant-liability context)
- Hutchinson v. Knights of Columbus, 866 So.2d 228 (La. 2004) (credibility determinations not appropriate on summary judgment)