92 So. 3d 625
La. Ct. App.2012Background
- Plaintiff Michelle Sheffie sued Wal-Mart Louisiana, LLC and Wal-Mart Real Estate Business Trust for injuries from a slip-and-fall at the Harahan store on 12/27/2005.
- Wal-Mart moved for summary judgment under La. R.S. 9:2800.6, asserting lack of proof that the liquid was present, that Wal-Mart had notice, and lack of a proven time period for which the condition existed.
- Plaintiff opposed with exhibits including a video of the incident and various statements and depositions; the trial judge may not have relied on these materials.
- A March 23, 2011 hearing involved only oral argument; no evidence was formally offered at the hearing.
- On March 30, 2011, the trial court granted summary judgment, noting the untimeliness of Plaintiff’s opposition.
- The appellate court vacated the judgment because the videotape was not offered or introduced into evidence, and remanded for a new hearing on Wal-Mart’s motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly considered the video surveillance at summary judgment. | Sheffie contends the video supports her claim and was part of the record. | Wal-Mart argues the video was not properly offered/introduced. | Yes; the trial court erred in considering unaffirmed video evidence. |
| Whether summary judgment was appropriate under La. R.S. 9:2800.6 given proof and notice requirements. | Plaintiff asserts there is evidence of unreasonable risk and notice. | Wal-Mart argues Plaintiff cannot prove the statutory elements. | Not decided on the merits due to vacatur; remanded for new hearing. |
| Whether Plaintiff’s late opposition and attached materials were properly considered. | Opposition and attachments should be considered; they raise triable issues. | Opposition was untimely and attachments may not be properly admitted. | Not reached on merits; remand to determine admissibility and consideration. |
Key Cases Cited
- Newsome v. Homer Memorial Medical Center, 32 So.3d 800 (La. 2010) (documents on file may be considered at summary judgment)
- Hutchinson v. Knights of Columbus, Council No. 5747, 866 So.2d 228 (La. 2004) (affidavits must be in evidence to count on summary judgment)
- Aydell v. Sterns, 731 So.2d 189 (La. 1999) (affidavits/depositions submitted as attachments may be considered if properly filed)
- Serv. One Cable T.V., Inc. v. Scottsdale Ins. Co., 2012 WL 602209 (La.App. 1 Cir. 2012) ((not included; WL not an official reporter; excluded from list))
- Drury v. Allstate, Inc., 86 So.3d 634 (La. App. 5th Cir. 2011) (unsworn/undocumented materials generally not considered unless properly offered)
- Audubon Trace Condominium Ass’n, Inc. v. Brignac-Derbes, Inc., 924 So.2d 1131 (La. App. 5 Cir. 2006) (exemplifies evidentiary standards for summary judgment)