Tomlinson v. Landmark American Insurance Co.
192 So. 3d 153
La. Ct. App.2016Background
- On May 1, 2011, Sharon Tomlinson slipped on a wooden floor inside Daisy Dukes restaurant after stepping off a commercial rug; she filed suit for injuries on March 21, 2012.
- After the fall restaurant staff placed a commercial rug over the area; employees wore non-slip shoes and a kitchen-entry sign required non-slip shoes.
- Daisy Dukes’ surveillance footage of the incident was erased pursuant to its routine automatic overwrite policy; no written policy was produced, and timing of retention was disputed.
- Tomlinson alleged (1) intentional spoliation of the surveillance video and (2) merchant liability for maintaining an unreasonably slippery floor (La. R.S. 9:2800.6 and La. Civ. Code art. 2317.1).
- The trial court granted summary judgment to Daisy Dukes on both spoliation and liability; the appellate court converted the nonfinal appeal to a supervisory writ, affirmed summary judgment on spoliation, reversed on liability, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Spoliation (was video intentionally destroyed?) | Tomlinson: circumstantial evidence (manager contact info left, insurer involvement, employee statements) supports inference Daisy Dukes knew of potential claim and intentionally destroyed footage. | Daisy Dukes: footage was erased by routine automatic overwrite; no evidence of intent; no written preservation policy necessary to prove intent. | Affirmed for defendant: no factual support of intent beyond negligence; routine business erasure insufficient to show intentional spoliation. |
| Merchant liability under La. R.S. 9:2800.6 (was floor unreasonably slippery and notice/maintenance failure?) | Tomlinson: eyewitness affidavit, her testimony, and expert report (grease buildup, inadequate cleaning, employee practices, rugs and non-slip shoe policies) create circumstantial issues of fact about hazardous condition and maintenance. | Daisy Dukes: no direct evidence of foreign substance or how/when condition arose; refurbishing records suggest work occurred after fall; plaintiff’s proof is speculative. | Reversed for defendant: genuine issues of material fact exist as to unreasonably slippery condition, notice, and maintenance; summary judgment inappropriate; remand for further discovery/trial. |
| Applicability of La. Civ. Code art. 2317.1 (alternative strict liability theory) | Tomlinson: even if 9:2800.6 fails, art. 2317.1 claim remains viable. | Daisy Dukes: elements substantially overlap; trial court treated both similarly. | Court found sufficient evidence to survive summary judgment on liability generally; art. 2317.1 preserved per statutory scheme. |
| Procedural jurisdiction (appeal vs. supervisory writ) | Tomlinson: appealed trial court summary judgment. | Daisy Dukes: judgment lacked decretal language dismissing with prejudice; appellee argued procedural defects. | Appellate court exercised discretion to convert the nonfinal appeal to a supervisory writ and granted review. |
Key Cases Cited
- Reynolds v. Bordelon, 172 So.3d 589 (La. 2015) (Louisiana recognizes only intentional— not negligent—spoliation claims)
- Reed v. Wal-Mart Stores, Inc., 708 So.2d 362 (La. 1998) (risk-utility test for determining whether a condition is unreasonably dangerous in merchant-liability context)
- Independent Fire Ins. Co. v. Sunbeam Corp., 755 So.2d 226 (La. 2000) (trial court must consider admissible expert evidence submitted with/against summary judgment)
- Quinn v. RISO Investments, Inc., 869 So.2d 922 (La. App. 4th Cir.) (intentional spoliation requires evidence of intentional destruction to deprive opposing party of evidence)
- Schroeder v. Walgreens Family of Companies, 159 So.3d 449 (La. 2015) (genuine issue of fact precludes summary judgment where conflict exists over whether floor was wet at time of fall)