182 So. 3d 246
La. Ct. App.2015Background
- On Oct. 24, 2013 Mrs. Ton fell outside the west entrance of an Albertsons grocery in Shreveport and injured her shoulder; no one witnessed the fall.
- Mrs. Ton recalled stepping toward a "concrete gizmo," holding sunglasses, then taking a step or two and falling; she could not identify what her foot hit or exactly where she fell.
- Mr. Ton returned a day or two later and photographed a small crack/hole along an expansion joint near the entrance; plaintiffs contend this was the hazard.
- Albertsons’ employees investigated, photographed the scene, and an employee placed Mrs. Ton’s location on a photo as being right/west of a concrete trash can—apparently beyond the photographed crack.
- No prior complaints or reports of falls were shown about the alleged defect; plaintiffs rely on circumstantial evidence/speculation that the expansion-joint crack caused the fall.
- Trial court granted summary judgment for Albertsons; on appeal the court reviewed de novo and affirmed, holding plaintiffs lacked evidence of causation and of notice/unreasonable risk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation — did the expansion-joint defect cause the fall? | Circumstantial evidence (photographs of crack taken soon after) supports causation. | No direct or reliable evidence links the crack to the fall; plaintiffs cannot say where she fell. | Held: Speculation insufficient; no genuine issue on causation. |
| Notice/constructive knowledge | Albertsons had or should have had notice of the defect (implied from presence of crack). | No prior complaints or reports; defect not shown to have existed or been known before fall. | Held: Plaintiffs failed to produce evidence of actual or constructive notice. |
| Unreasonable risk of harm | The crack presented an unreasonable hazard (employees conceded risk to heels). | Ordinary surface irregularities are not actionable absent unreasonable risk; no evidence this crack posed such a risk to Mrs. Ton. | Held: No factual support that defect presented an unreasonable risk to this plaintiff. |
| Appropriateness of summary judgment | Circumstantial proof (post-incident photos, testimony) creates material fact questions. | Nonmoving party cannot meet evidentiary burden at trial; mover showed absence of factual support for essential elements. | Held: Summary judgment appropriate; mover met burden pointing to lack of evidence and plaintiffs failed to produce admissible facts to create a genuine issue. |
Key Cases Cited
- Independent Fire Ins. Co. v. Sunbeam Corp., 755 So.2d 226 (La. 2000) (summary-judgment de novo review/standards)
- Reed v. Wal-Mart Stores, Inc., 708 So.2d 362 (La. 1998) (not every sidewalk irregularity is actionable; only defects presenting unreasonable risk)
- Babin v. Winn-Dixie La., Inc., 764 So.2d 37 (La. 2000) (speculation is insufficient to defeat summary judgment)
- Reed v. Home Depot USA, Inc., 843 So.2d 588 (La. App. 2003) (after-the-fact assumptions about cause of fall insufficient to create genuine issue)
- Lyons v. Airdyne Lafayette, Inc., 563 So.2d 260 (La. 1990) (circumstantial evidence may suffice but not mere speculation)
- Norton v. Claiborne Elec. Co-op, Inc., 732 So.2d 1256 (La. App. 1999) (circumstantial evidence can create material fact issues)
- Jones v. Brookshire Grocery Co., 847 So.2d 43 (La. App. 2003) (merchants not absolute insurers of patron safety)
- Turner v. Brookshire Grocery Co., 785 So.2d 161 (La. App. 2001) (merchant liability limited to unreasonable risks)