Gregory Allen Campbell v. Dolgencorp, LLCGregory Allen Campbell v. Dolgencorp, LLC
Gregory Allen Campbell appeals the Nineteenth Judicial District Court‘s judgment
FACTS AND PROCEDURAL HISTORY
On April 21, 2016, Gregory Allen Campbell filed a petition for damages, naming Dolgencorp, LLC (“Dolgencorp“) as defendant. In the petition, Campbell alleged that he was injured at a store owned and operated by Dolgencorp. Specifically, Campbell alleged that while he was in the store‘s bathroom, he encountered a wet area with no warning signs posted where he slipped and fell. Campbell claimed that the wet area was caused by a mop bucket that had been left to drain.
On June 6, 2016, DG Louisiana, LLC (“DG“) filed a notice of removal, removing the lawsuit from the Nineteenth Judicial District Court, Parish of East Baton Rouge, State of Louisiana, to the United States District Court for the Middle District of Louisiana. DG averred that it had been incorrectly referred to in Campbell‘s petition as Dolgencorp. The matter was subsequently remanded back to the Nineteenth Judicial District Court.
On September 6, 2016, Campbell filed a supplemental petition for damages, naming DG as a defendant and reiterating all of the allegations of the original petition. On February 2, 2017, Campbell filed a motion and order to dismiss Dolgencorp, on the grounds that DG is the proper defendant. The trial court signed an order dismissing Dolgencorp on February 3, 2017.
On July 2, 2018, DG filed a motion for summary judgment, asserting that Campbell cannot satisfy his burden of proof under
On September 5, 2018, DG filed a reply to Campbell‘s opposition to the motion for summary judgment, in which DG alleged that Campbell‘s exhibits were untimely pursuant to
The hearing on the motion for summary judgment was held on September 10, 2018. On October 9, 2018, the trial court signed a judgment ordering that Campbell‘s exhibits be stricken as untimely. The trial court also granted DG‘s motion for summary judgment. Finally, the trial court denied Campbell‘s motion to strike DG‘s untimely motion for summary judgment and for sanctions. In oral reasons, the trial court stated that Campbell cannot satisfy any of the elements of
This appeal followed.
ASSIGNMENTS OF ERROR
Campbell assigns the following as error.
- (1) The trial court erred in granting summary judgment, which was procedurally defective.
- (2) The trial court erred in finding that the plaintiff could not show what he actually slipped in.
- (3) The trial court erred in proffering evidence and not allowing discovery to be introduced in opposition to the motion for summary judgment.
STANDARD OF REVIEW
Summary judgment procedure is favored and “is designed to secure the just, speedy, and inexpensive determination of every action ... and shall be construed to accomplish these ends.” Jackson v. Wise, 2017-1062 (La. App. 1 Cir. 4/13/18); 249 So.3d 845, 850, writ denied, 2018-0785 (La. 9/21/18); 252 So.3d 914, quoting
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover‘s burden on the motion does not require him to negate all essential elements of the adverse party‘s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party‘s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
DISCUSSION
The Exhibits
We first address the admissibility of the exhibits attached to Campbell‘s opposition to DG‘s motion for summary judgment. As stated above, the trial court‘s judgment ordered that Campbell‘s exhibits be stricken as untimely.1 Campbell did not assign as error that the trial court erred in striking Campbell‘s exhibits as untimely, and therefore, that issue is not before us. See Doyle v. Lonesome Development, Limited Liability Company, 2017-0787 (La. App. 1 Cir. 7/18/18); 254 So.3d 714, 727 n.3, writ denied, 2018-1369 (La. 11/14/18); 256 So.3d 291; see also Bihm v. Deca Sys., Inc., 2016-0356 (La. App. 1 Cir. 8/8/17), 226 So.3d 466, 476. Instead, Campbell claims that the trial court should have considered the photographs that were attached as exhibits because Campbell had already given those photographs to DG during discovery without any objection from DG.
The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made.
Assignment of Error #1
In his first assignment of error, Campbell argues that the trial court erred in granting summary judgment, because it was procedurally defective. Specifically, Campbell argues that DG‘s motion for summary judgment is premature, because it was filed before Campbell had an opportunity to depose DG. Campbell asserts that DG refused to participate in meaningful discovery.
Louisiana Code of Civil Procedure art. 966(A)(3) provides that a motion for summary judgment may be granted after an opportunity for adequate discovery if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. The requirement that a summary judgment should be considered only after “adequate discovery” has been construed to mean that there is no absolute right to delay action on a motion for summary judgment until discovery is complete; rather, the requirement is only that the parties have a fair opportunity to carry out discovery and to present their claim. Unless a party shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact. Primeaux v. Best Western Plus Houma Inn, 2018-0841 (La. App. 1 Cir. 2/28/19); 274 So.3d 20, 32.
A defendant‘s motion for summary judgment may be made at any time. Ellis v. Louisiana Bd. of Ethics, 2014-0112 (La. App. 1 Cir. 12/30/14); 168 So.3d 714, 725, writ denied, 2015-0208 (La. 4/17/15); 168 So.3d 400 (citing
Campbell‘s petition was filed on April 21, 2016. DG was added as a defendant on September 6, 2016. DG filed its motion for summary judgment on July 2, 2018, nearly
Assignment of Error #2
In his second assignment of error, Campbell argues that the trial court erred in finding that the plaintiff could not show what he actually slipped in and, in other words, would be unable to satisfy his burden of proof.
Louisiana Revised Statutes 9:2800.6(B) provides:
In a negligence claim brought against a merchant by a person lawfully on the merchant‘s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant‘s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
- (1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
- (2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
- (3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
Thus, in order to prove that a merchant is liable for damages sustained as a result of a fall due to a condition that existed in or on the merchant‘s premises, a plaintiff must prove by a preponderance of the evidence, through either direct or circumstantial evidence: (1) the existence of a condition that presented an unreasonable risk of harm which was reasonably foreseeable; (2) the merchant‘s actual or constructive notice of the condition; and (3) the merchant‘s failure to exercise reasonable care. Williams v. Liberty Mutual Fire Insurance Company, 2016-0996 (La. App. 1 Cir. 3/13/17); 217 So.3d 421, 424, writ denied, 2017-0624 (La. 6/5/17); 219 So.3d 338.
The burden of proof on the motion for summary judgment rests with DG, the mover. However, in this matter, DG will not bear the burden of proof at trial; that burden of proof rests with Campbell. Accordingly, once the motion for summary judgment has been properly supported, DG need only point out to the trial court the absence of factual support for one or
A hazardous condition is one that creates an unreasonable risk of harm to customers under the circumstances. In the context of slip-and-fall cases, a hazard is shown to exist when the fall results from an unreasonably slippery condition. Pena v. Delchamps, Inc., 2006-0364 (La. App. 1 Cir. 3/28/07); 960 So.2d 988, 991, writ denied, 2007-0875 (La. 6/22/07); 959 So.2d 498. Louisiana jurisprudence does not preclude the granting of a motion for summary judgment in cases where plaintiffs are unable to produce factual support to bolster their claim that a complained-of condition is unreasonably dangerous. Willig v. Pinnacle Entertainment, Inc., 2015-1998 (La. App. 1 Cir. 9/16/16); 202 So.3d 1169, 1173.
At his deposition, Campbell stated that he entered the restroom of a Dollar General located on Coursey Boulevard in Baton Rouge, Louisiana. After using the toilet, Campbell turned around, took a step, and slipped, falling on the outside perimeter of a drain located near the toilet. He stated that there was “[n]o telling what it was[,]” and that he slipped in “[w]hatever liquid was on the floor.” After falling, Campbell noticed a wet mop bucket, but Campbell stated that he did not know exactly what liquid he slipped in, nor did he know how the liquid got on the floor, how long the liquid was on the floor, or who put the liquid on the floor. He also did not know whether the employees knew about the liquid on the floor.
Campbell further stated that he saw “very small” puddles of water spread throughout the bathroom and that after falling, he had water on the back of his pants and on the back of his shirt.
Campbell further stated that he left the restroom to find an employee, but there were none at the register. Campbell then left the store without telling anyone about the accident and sought medical care in Gonzales, Louisiana. A day or two later, Campbell called Dollar General to report the accident, at which point Dollar General asked Campbell to meet with management to give a report. When Campbell went back to the store a week or two later, he spoke to an employee and asked to speak to a manager, but was told that the manager was busy. Campbell waited for approximately 45 minutes, but the manager never showed up. Campbell left the store without filling out an incident report for Dollar General.
To defeat the motion for summary judgment filed by DG, Campbell must show that he can prove at trial that there existed a condition that presented an unreasonable risk of harm which was reasonably foreseeable, that DG had actual or constructive notice of the condition, and that DG failed to exercise reasonable care.
DG has pointed out the lack of factual support for Campbell‘s claims. Namely, DG showed that Campbell did not know what substance he slipped in and thus could not prove that there had been an unreasonable risk of harm. Further, Campbell did not timely submit any evidence
Assignment of Error #3
In his third assignment of error, Campbell argues that the trial court erred in proffering evidence and not allowing discovery to be introduced in opposition to the motion for summary judgment. Specifically, Campbell asserts that the trial court erred in (1) finding that no evidence had been produced; (2) finding Campbell did not have a right to depose DG before granting summary judgment; (3) finding that the photographic evidence should be proffered instead of considered; and (4) not drawing inferences from the undisputed facts which are most favorable to the party opposing the motion.2
Finally, Campbell argues that the trial court erred in not drawing inferences from the undisputed facts which are most favorable to the party opposing the motion. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubt must be resolved in the opponent‘s favor. Jackson v. City of Zachary, 2017-1583 (La. App. 1 Cir. 8/6/18); 256 So.3d 323, 326 (citing Willis v. Medders, 2000-2507 (La. 12/8/00); 775 So.2d 1049, 1050). However, Campbell did not properly submit any supporting evidence to be considered on the motion for summary judgment. The only evidence before the court is Campbell‘s deposition testimony, including Campbell‘s assertions that he did not know exactly what liquid he fell in or how long the liquid had been on the floor prior to the fall. Further, there is no evidence regarding DG‘s actual or constructive notice of the condition or DG‘s failure to exercise reasonable care from which we can draw any inferences. This assignment of error lacks merit.
DECREE
For the above and foregoing reasons, the Nineteenth Judicial District Court‘s judgment granting DG Louisiana, LLC‘s motion for summary judgment is affirmed. All costs of this appeal are assessed to Appellant, Gregory Allen Campbell.
AFFIRMED.
McDonald, J., concurs and assigns reasons.
The majority suggests that since Campbell did not know what he slipped in, he didn‘t prove there was an unreasonable risk of harm. I believe if there was a substance on the floor that he slipped in,