210 So. 3d 447
La. Ct. App.2016Background
- On April 9, 2013, Mary Hazelett slipped and fell while exiting Boomtown’s buffet area; she alleged grease/food tracked from under a booth caused the fall.
- Hazelett made multiple trips to the buffet earlier, observed caution signs, but did not complain or inspect her shoe after the fall.
- Boomtown investigated: security prepared an incident report and took photographs; affidavits from staff and risk manager reported no visible foreign substance at the scene.
- Hazelett submitted her testimony, her sister’s signed affidavit (describing a smear and a near-miss by another patron), and other unsworn statements; surveillance video was referenced but not admitted in the trial court.
- Boomtown moved for summary judgment arguing Hazelett could not prove unreasonable risk/foreseeability, actual or constructive notice, or failure to exercise reasonable care under La. R.S. 9:2800.6.
- Trial court granted summary judgment; the appellate court affirmed, finding Hazelett failed to produce positive evidence on essential statutory elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was appropriate | Hazelett: evidence (testimony, interrogatories, affidavits) creates genuine issues of material fact precluding summary judgment | Boomtown: movant showed absence of factual support for essential elements; Hazelett cannot meet her burden at trial | Affirmed — summary judgment proper because Hazelett failed to produce sufficient factual support |
| Whether the condition presented an unreasonable, foreseeable risk | Hazelett: greasy/slippery buffet floors and floor transitions made tracking of grease foreseeable and hazardous | Boomtown: no evidence of a foreign substance at the fall location; staff affidavits and photos show no slick condition | Held against Hazelett — she offered no factual support that grease presented an unreasonable, foreseeable risk |
| Whether Boomtown had actual or constructive notice of the condition | Hazelett: presence of cones and allegedly slippery buffet makes constructive notice likely; tracking from buffet to hallway foreseeable | Boomtown: no positive evidence showing it knew or should have known of any specific foreign substance or its duration | Held against Hazelett — no positive evidence of actual or constructive notice or that condition existed long enough to put merchant on notice |
| Sufficiency of plaintiff’s evidence (including surveillance video) | Hazelett: surveillance and witness statements undermine defendant’s affidavits and create disputes | Boomtown: surveillance was never admitted; plaintiff’s statements are speculative/self-serving and lack positive proof | Held: surveillance video not considered (not in record); conclusory/speculative testimony insufficient to create genuine issue |
Key Cases Cited
- C & C Energy, L.L.C. v. Cody Invs., L.L.C., 41 So.3d 1134 (La. 2010) (standard of appellate review for summary judgment)
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (summary judgment review principles)
- Duncan v. U.S.A.A. Ins. Co., 950 So.2d 544 (La. 2006) (summary judgment standards)
- Rayfield v. Millet Motel, 185 So.3d 183 (La. App. 5th Cir. 2016) (appellate summary judgment review)
- White v. Wal-Mart Stores, Inc., 699 So.2d 1081 (La. 1997) (merchant need not negate existence of condition; no burden shift)
- Bufkin v. Felipe’s La., LLC, 171 So.3d 851 (La. 2014) (risk-utility test factors for unreasonable condition)
- Burns v. Sedgwick Claims Mgmt. Servs., 165 So.3d 147 (La. App. 5th Cir. 2014) (elements required under La. R.S. 9:2800.6)
- Sheffie v. Wal-Mart Louisiana LLC, 134 So.3d 80 (La. App. 5th Cir. 2014) (merchant liability under statute)
- Upton v. Rouse’s Enter., LLC, 186 So.3d 1195 (La. App. 5th Cir. 2016) (constructive notice requires proof condition existed long enough to be discovered)
- Frank v. Boomtown L.L.C., 106 So.3d 227 (La. App. 5th Cir. 2012) (mere speculation insufficient to meet notice burden)