Kimberly Bryant Versus Ray Brandt Dodge, Inc. and Amtrust North America, Inc.
AFFIRMED
JGG
FHW
SJW
COUNSEL FOR PLAINTIFF/APPELLANT,
KIMBERLY BRYANT
John W. Redmann
Edward L. Moreno
Travis J. Causey, Jr.
Jonathan E. Ley
Christian A. Galleguillos
COUNSEL FOR DEFENDANT/APPELLEE,
RAY BRANDT DODGE, INC. AND MILFORD CASUALTY INSURANCE
COMPANY
Wayne R.
GRAVOIS, J.
In this slip-and-fall case, plaintiff/appellant, Kimberly Bryant, appeals a summary judgment granted in favor of defendants/appellees, Ray Brandt Dodge, Inc. and its liability insurer, Milford Casualty Insurance Company, which judgment dismissed plaintiff’s claims against defendants with prejudice. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On September 26, 2018, Kimberly Bryant filed suit against Ray Brandt Dodge, Inc. and its liability insurer, Milford Casualty Insurance Company1 (collectively, “Ray Brandt”), for damages arising out of a slip-and-fall incident that occurred at the Ray Brandt dealership in Harvey, Louisiana. Ms. Bryant alleged in her petition for damages that on the morning of May 3, 2018, she was walking into the bathroom from the lobby of the dealership when she slipped and fell in a puddle of liquid on the floor. As a result, she allegedly suffered injuries to her neck, shoulder, and back. She alleged that Ray Brandt either created the unreasonably dangerous condition, had actual notice of the unreasonably dangerous condition, or had constructive notice of the unreasonably dangerous condition because it existed for such a period of time that it would have been discovered had Ray Brandt exercised reasonable prudence and care. In the alternative, Ms. Bryant alleged that a defect or vice in the premises owned, operated, controlled
On April 15, 2019, Ray Brandt moved for summary judgment, arguing that Ms. Bryant would be unable to meet her burden of proof under
In support of its motion for summary judgment, Ray Brandt included excerpts from Ms. Bryant’s deposition. In her deposition, Ms. Bryant testified that she arrived at the dealership sometime before her 7:00 a.m. appointment to get a recall on her car repaired.3 She remained in her car until the dealership opened. She then went inside and sat down in the waiting room. Next, she got up, got a cup of coffee, and sat back down. There was one other person, Daniel White,4 sitting in the waiting room at that time. At approximately 7:05 a.m., Ms. Bryant went to the bathroom, carrying her cup of coffee (that did not have a lid) in her hand and her purse on her shoulder. Upon entering the bathroom, Ms. Bryant testified that she took four or five steps toward the stalls and then slipped and fell onto her back and head. She stated that when she fell, some of the coffee spilled on her and on the floor. She did not recall seeing anything on the floor before she fell. However, when she was on the ground after the fall, she observed seven or eight “puddles of water, like they were drying up like in different spots.” She said one would not be able to see the puddles of watеr unless one was on the ground. She described it as if someone “might have mopped and it was just drying up.” When further questioned about the puddles, Ms. Bryant stated:
You know, if you lay down, not like puddles, but it was just like – like it was – it was like – it was not big puddles. I could see it, but it was not like a lot of water, like – no, I am not going to say like if you mop, because when you mop, when it dries up, it was just – it was like little things of water, little stains of water. I can’t describе it. But it was not a lot of water, it wasn’t a lot.
Ms. Bryant also stated that she did not know if it was in fact water on the ground, or some other substance. She stated that it was an assumption on her part that someone had just mopped. She did not see anyone enter or leave the bathroom from the time she entered the dealership until she fell. She stated that she did not know how long the puddles had been on the floоr, where they came from, and if anyone at the dealership knew there were puddles on the floor.
After screaming for help, Mr. White came to her aid and helped her out of the bathroom and into a chair in the waiting room. Ms. Bryant asked Mr. White to take pictures of the bathroom. She testified that after Mr. White took the pictures, he said
Ray Brandt also included excerpts from the deposition of Elizabeth Hollingsworth, an employee of the dealership working on the morning of the incident. Ms. Hollingsworth testified that around 7:00 a.m., approximately five minutes prior to Ms. Bryant entering the bathroom, she used the same bathroom to wash her hands. She stated that there was no liquid on the floor when she went into the bathroom. When she went into the bathroom after Ms. Bryant’s fall, the only liquid she saw on the floor was coffee. She did not see any liquid on Ms. Bryant’s clothing.
In opposition to the motion for summary judgment, Ms. Bryant first argued that there is a genuine issue of material fact as to whether the condition in the bathroom presented an unreasonable risk of harm that was reasonably foreseeable because in her deposition she testified that the floor was wet and it looked as if someone had recently mopped it. Next, she argued that there is genuine issue of material fact as to whether Ray Brаndt had constructive notice of the hazard. In support, Ms. Bryant attached Ray Brandt’s answers to interrogatories in which it stated that the floors of the dealership were cleaned nightly by PM Maintenance, Inc. Ms. Bryant also attached a letter from PM Maintenance, Inc. that stated that its cleaning crew was “completely done” with the cleaning by 5:00 a.m. and “[t]he floors are completely dry before we leave.” She finally argued that there is a genuine issue of material fact as to whether Ray Brandt created the hazard at issue because Ms. Hollingsworth used the sink five minutes prior to her fall and “may have” dripped water onto the floor.
The motion for summary judgment was heard on May 29, 2019, whereupon the trial court granted the motion. In its oral reasons for judgment, the trial court noted that it found that the constructive or actual notice element as required by
In her first assignment of error, Ms. Bryant argues that a condition existed in or on the premises of Ray Brandt Dodge, and the condition presented an unreasonable risk of harm to Ms. Bryant. She contends that this is supported by her deposition testimony in which she testified that after she slipped and fell, she observed what looked like “someone might have mopped and it was just drying up.” She also argues that Ray Brandt either created the wet floor or had actual or constructive notice of the wet floor prior to the fall. Specifically, she contends that Ray Brandt had constructive notice of the hazardous condition since the floors wеre still damp after having been mopped earlier by PM Maintenance, Inc. Alternatively, she argues that Ms. Hollingsworth created the hazardous condition when she went into the bathroom around 7:00 a.m. and used the sink to wash her hands.
In Ms. Bryant’s second assignment of error, she argues that a genuine issue of material fact exists as to whether Ray Brandt’s service area meets the definition of “merchant” in
In opposition, Ray Brandt argues that there is no evidence of any substance on the floor in the area where Ms. Bryant fell other than the coffee she spilled when she fell. Nonetheless, Ray Brandt contends that even if there was water there, there is no evidence that it created the condition or had notice of the condition. In Ms. Hollingsworth’s deposition, she stated that there was nothing on the floors just five minutes before Ms. Bryant fell. Ray Brandt also argues that Ms. Bryant fell in the bathroom inside the dealership, and the dealership is a “merchant” as dеfined by
LAW AND ANALYSIS
“After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.”
On appeal, our review of summary judgments is de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La. App. 5 Cir. 11/29/11), 78 So.3d 849, 852.
A decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Bach v. Bd. of River Port Pilot Comm’rs, 15-765 (La. App. 5 Cir. 5/12/16), 193 So.3d 355, 362. In the motion for summary judgment, the opposition, and at the hearing, the substantive law applied was
A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. 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.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixеd place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.
In a slip-and-fall case against a merchant, a plaintiff must prove the essential elements of a standard negligence claim in addition to the requirements under
To determine whether a condition is unreasonably dangerous, courts are required to consider the following factors in the risk-utility test: (1) the utility of the complained of condition; (2) the likelihood and magnitudе of harm, including the obviousness and apparentness of the condition; (3) the cost to prevent the harm; and (4) the nature of the plaintiff’s activities in terms of social utility or whether the activities were dangerous by nature. Bufkin v. Felipe’s, 14-288 (La. 10/15/14), 171 So.3d 851, 856.
In addition to proving that the condition presented an unreasonable risk of harm that was reasonably foreseeable, the plaintiff must also prove that the merchant either сreated or had actual or constructive notice of the condition which caused the damage prior to the occurrence. Upton, 186 So.3d at 1200. When constructive notice is at issue, the claimant must come forward with positive evidence showing that the damage causing condition existed for some period of time, and that such time was sufficient to place the merchant
For this statute to aрply, the defendant must fall within the statute’s definition of a merchant, as it is set forth above in
Upon review, we find, however, that we need not decide the issue of whether the area of the dealership in question here meets the definition of “merchant” pursuant to
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
Under
1208, writ denied, 16-0592 (La. 5/27/16), 192 So.3d 738.6 If the plaintiff fails to prove any one of these elements, the claim fails. Dauzat v. Thompson Const. Co., Inc., 02-989 (La. App. 5 Cir. 1/28/03), 839 So.2d 319, 322.
In the present case, there is no evidence that the condition of the floor at Ray Brandt created an unreasonable risk of harm or that Ray Brandt had actual or constructive notice of the alleged unreasonable risk of harm prior to the incident.
Additionally, Ms. Bryant provided no evidence that Ray Brandt had actual or constructive notice of the alleged unreasonable risk of harm prior to the incident. Ms. Bryant claims that PM Maintenance, Inc. cleaned the floors prior to
the incident. However, according to PM Maintenance, Inc.’s letter, it is done cleaning by 5:00 a.m., and the floors are dry before it leaves. Further, Ms. Hollingsworth testified that when she went into the bathroom five minutes prior to the incident, there was nothing on the floor. Ms. Bryant argues that Ms. Hollingsworth may have gotten water on the floor when she used the sink five minutes prior to this incident. However, this is mere speculation, and she provides nothing in support of this allegation. See Sears, supra.
Thus, upon de novo review, applying either
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment granting Ray Brandt’s motion for summary judgment and dismissing Ms. Bryant’s claims with prejudice.
AFFIRMED
SUSAN M. CHEHARDY
CHIEF JUDGE
FREDERICKA H. WICKER
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON
STEPHEN J. WINDHORST
HANS J. LILJEBERG
JOHN J. MOLAISON, JR.
JUDGES
CURTIS B. PURSELL
CLERK OF COURT
MARY E. LEGNON
CHIEF DEPUTY CLERK
SUSAN BUCHHOLZ
FIRST DEPUTY CLERK
MELISSA C. LEDET
DIRECTOR OF CENTRAL STAFF
(504) 376-1400
(504) 376-1498 FAX
FIFTH CIRCUIT
101 DERBIGNY STREET (70053)
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
19-CA-464
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MARCH 17, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
CURTIS B. PURSELL
CLERK OF COURT
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. DONALD M. FENDLASON (DISTRICT JUDGE)
JONATHAN E. LEY (APPELLANT) EDWARD L. MORENO (APPELLANT)
MAILED
WAYNE R. MALDONADO (ATTORNEY)
3850 NORTH CAUSEWAY BOULEVARD
SUITE 1280, LAKEWAY TWO
METAIRIE, LA 70002
TRAVIS J. CAUSEY, JR. (ATTORNEY)
CHRISTIAN A. GALLEGUILLOS
(ATTORNEY)
JOHN W. REDMANN (ATTORNEY)
1101 WESTBANK EXPRESSWAY
GRETNA, LA 70053