245 So. 3d 68
La. Ct. App.2018Background
- At Harrah's casino, Valencia Lewis slipped and fell on August 1, 2015; she alleged she slipped on food and sued Jazz Casino under La. R.S. 9:2800.6 (merchant liability).
- Plaintiff and family members testified (deposition/affidavits) that a Harrah's employee said she slipped on a "smushed grape"; other witnesses described a substance like "melted cheese."
- Casino surveillance video produced only covers one minute before to four minutes after the fall and shows no visible substance on the floor in that interval.
- Plaintiff requested additional earlier surveillance and cleaning/inspection logs; casino produced none and said no additional video/logs existed.
- Trial court granted summary judgment for Jazz Casino, finding plaintiff failed to prove the temporal element of constructive notice (that the condition existed for "some period of time" before the fall).
- The appellate court reversed and remanded, holding plaintiff presented sufficient circumstantial evidence that the foreign substance existed for "some period of time" pre-fall and that genuine issues of material fact (including duration, missing video/logs, and potential spoliation/selective preservation) preclude summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive-notice temporal element under La. R.S. 9:2800.6 | Lewis: circumstantial evidence (family affidavits, employee statements) shows the substance existed for "some period of time" before the fall | Jazz: no evidence the substance was present before the fall; video shows nothing prior | Reversed: circumstantial post-fall observations suffice to show the prerequisite "some period of time," so temporal element is met for trial |
| Whether summary judgment is appropriate | Lewis: testimony, affidavits, and missing/limited discovery create genuine fact issues on notice, duration, and preservation of evidence | Jazz: plaintiff cannot prove an essential element (constructive notice), so summary judgment is proper | Reversed: genuine issues of material fact exist; summary judgment improper and issues reserved for jury/trial |
| Effect of limited surveillance and missing logs (spoliation/selective preservation) | Lewis: limited one-minute pre-fall video and absence of logs raise an inference that additional evidence detrimental to Jazz was not preserved | Jazz: produced the only existing footage and has no logs; nothing visible on video so more tape wouldn’t help | Remanded: absence of earlier video/logs creates a factual dispute for the trier of fact about duration and preservation; not resolved on summary judgment |
| Use of circumstantial evidence to prove time-on-floor | Lewis: may rely on circumstantial evidence; post-fall observations by multiple witnesses shortly after fall allow reasonable inference of prior existence | Jazz: post-fall observations insufficient; substance might have been tracked in by plaintiff or others immediately before fall | Held: circumstantial evidence can satisfy the statutory temporal prerequisite; sufficiency and duration are factual matters for jury |
Key Cases Cited
- Hare v. Paleo Data, Inc., 89 So.3d 380 (La. App. 4th Cir. 2012) (standard of review for summary judgment)
- Fiveash v. Pat O'Brien's Bar, Inc., 201 So.3d 912 (La. App. 4th Cir. 2016) (inferences and doubts resolved for non-mover on summary judgment)
- White v. Wal-Mart Stores, Inc., 699 So.2d 1081 (La. 1997) (constructive notice requires evidence condition existed for "some period of time")
- Kennedy v. Wal-Mart Stores, Inc., 733 So.2d 1188 (La. 1999) (plaintiff must show condition existed for some time before fall)
- Babin v. Winn-Dixie La., Inc., 764 So.2d 37 (La. 2000) (positive showing of temporal element required)
- Birdsong v. Hirsch Mem'l Coliseum, 889 So.2d 1232 (La. App. 2nd Cir. 2004) (temporal element may be proved by circumstantial evidence)
- Beggs v. Harrah's New Orleans Casino, 158 So.3d 917 (La. App. 4th Cir. 2015) (circumstantial proof of duration not limited to eyewitness minutes)
- Davis v. Cheema, Inc., 171 So.3d 984 (La. App. 4th Cir. 2015) (post-fall observations can support inference condition existed pre-fall)
- Smith v. Toys "R" Us, Inc., 754 So.2d 209 (La. 1999) (definition of circumstantial evidence)
- Bagley v. Albertson's, Inc., 492 F.3d 328 (5th Cir. 2007) (period sufficient for constructive notice is a jury question)
- Tomlinson v. Landmark Am. Ins. Co., 192 So.3d 153 (La. App. 4th Cir. 2016) (circumstantial evidence can defeat summary judgment)