Kimberly Bryant Versus Ray Brandt Dodge, Inc. and Amtrust North America, Inc.

KIMBERLY BRYANT NO. 19-CA-464

VERSUS FIFTH CIRCUIT

RAY BRANDT DODGE, INC. AND AMTRUST COURT OF APPEAL
NORTH AMERICA, INC.
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 787-989, DIVISION "H"
HONORABLE DONALD M. FENDLASON
JUDGE PRO TEMPORE PRESIDING

March 17, 2020

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Stephen J. Windhorst

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. Maldonado

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 by, and under the custody and control of Ray Brandt caused

her damages, which could have been prevented had Ray Brandt exercised

reasonable care in keeping the premises free from ruin, vice, or defect.2

1
The petition improperly referred to Ray Brandt’s liability insurer as Amtrust North America,
Inc.
2
In her petition for damages, Ms. Bryant did not make reference to any specific statute or codal
articles.

19-CA-464 1

On April 15, 2019, Ray Brandt moved for summary judgment, arguing that

Ms. Bryant would be unable to meet her burden of proof under La. R.S. 9:2800.6.

Ray Brandt argued that Ms. Bryant cannot prove that it had actual or constructive

notice of the substance on the floor prior to the alleged incident. Ray Brandt

alleged that Ms. Bryant has no evidence of how the alleged substance got on the

floor, how long it had been there, and if Ray Brandt was aware of the alleged

substance before she fell.

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 water 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:

3
In Ray Brandt’s answers to interrogatories attached to the opposition to the motion for summary
judgment, it stated that Ms. Bryant was at the dealership for an oil change.
4
Mr. White was identified by name in the answers to interrogatories attached to the opposition to
the motion for summary judgment.

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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 describe 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 floor, 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 “I can’t take pictures of the water that I can’t see it [sic].” She clarified that

he said he couldn’t take pictures of the water because “it wouldn’t show, it was

clear.” When asked if Mr. White said he saw any water or not, she responded that

“[h]e didn’t say.” Ms. Bryant testified that water was not shown in the pictures

taken of the bathroom.

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.

19-CA-464 3

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 Brandt 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 La.

R.S. 9:2800.6 was missing in this instance. A judgment was signed on June 20,

2019 granting the motion and dismissing Ms. Bryant’s claims with prejudice. This

appeal followed.

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

19-CA-464 4

Ray Brandt had constructive notice of the hazardous condition since the floors

were 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 La. R.S. 9:2800.6(C)(2). Specifically, she argues that she was at

the dealership on the day of the incident to get a recall on her car repaired, and

there is no evidence in the record that Ray Brandt sold good, foods, wares, or

merchandise in its service area.

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 defined by La. R.S. 9:2800.6 since its business is to sell

automobiles, parts, and services.

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.” La. C.C.P. art. 966(A)(3). “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,

19-CA-464 5

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.” La.

C.C.P. art. 966(D)(1).

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 La. R.S. 9:2800.6. Louisiana Revised Statute

9:2800.6 governs merchant liability for slip-and-fall cases and provides:

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

19-CA-464 6

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 fixed 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 La.

R.S. 9:2800.6. Burns v. Sedgwick Claims Mgmt. Servs., 14-421 (La. App. 5 Cir.

11/25/14), 165 So.3d 147, 152; Sheffie v. Wal-Mart Louisiana LLC, 13-792 (La.

App. 5 Cir. 2/26/14), 134 So.3d 80, 83, writ denied, 14-0881 (La. 6/20/14), 141

So.3d 813. The failure to prove any of the requirements enumerated in La. R.S.

9:2800.6 is fatal to a plaintiff’s cause of action. Foster v. Pinnacle Entm’t, Inc.,

16-8 (La. App. 5 Cir. 4/27/16), 193 So.3d 288, 295; Upton v. Rouse’s Enter., LLC,

19-CA-464 7

15-484 (La. App. 5 Cir. 2/24/16), 186 So.3d 1195, 1199, writ denied, 16-0580 (La.

5/13/16), 191 So.3d 1057.

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 magnitude 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 created 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 on notice of its

existence. Id. at 1200 (citing White v. Wal-Mart Stores, Inc., 97-0393 (La. 9/9/97),

699 So.2d 1081, 1082).

For this statute to apply, the defendant must fall within the statute’s

definition of a merchant, as it is set forth above in La. R.S. 9:2800.6(C)(2). The

statute defines “merchant” as “one whose business is to sell goods, foods, wares, or

merchandise at a fixed place of business.” Ms. Bryant argues that the facts of this

case are similar to the facts in Landry v. Leson Chevrolet Co., Inc., 17-665 (La.

App. 5 Cir. 6/6/18), 250 So.3d 360. Landry involved a slip and fall on a rainy day

in the covered service bay of a dealership. Id. at 363. This Court found that a

material issue of fact remained as to whether the defendant’s service area meets the

definition of “merchant” in La. R.S. 9:2800.6(C)(2). Id. at 371. This Court stated

19-CA-464 8

that there was no evidence in the record that the defendant sold goods, foods,

wares, or merchandise in its service area, and the evidence in the record indicated

only that customers dropped off their cars in the service area to be serviced or

repaired. Id. Ms. Bryant argues that in the present case, like Landry, there is no

evidence in the record that Ray Brandt sold good, foods, wares, or merchandise in

its service area.5

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 La. R.S. 9:2800.6, because summary judgment is

appropriate herein under either La. R.S. 9:2800.6 or La. C.C. art. 2317.1, as both

require notice of a defect or risk of harm prior to the incident.

La. C.C. art. 2317.1, which governs negligence claims against the owner or

custodian of property, provides:

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 La. C.C. art. 2317.1, in order to impose liability for an unreasonably

dangerous defect, a plaintiff must show that: (1) the thing was in the defendant’s

custody or control; (2) the thing had a vice or defect that presented an unreasonable

risk of harm; (3) the defendant knew or should have known of the unreasonable

risk of harm; and (4) the damage was caused by the defect. Vail v. Schiro Bros.

Shoe Store, Inc., 16-47 (La. App. 5 Cir. 5/12/16), 193 So.3d 342, 347; Wiltz v.

Floor & Decor Outlets of Am., 15-516 (La. App. 5 Cir. 2/24/16), 186 So.3d 1204,

5
Noteworthy, in Landry, this Court also found that material issues of fact existed as to the
existence of the hazardous condition on the floor, whether the defendant had the requisite notice thereof,
and whether the defendant followed its rainy day procedures.

19-CA-464 9

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.

See Tomaso v. Home Depot, U.S.A., Inc., 14-1467 (La. App. 1 Cir. 6/5/15), 174

So.3d 679. Ms. Bryant testified in her deposition that she did not observe anything

on the bathroom floor prior to her fall. After her fall, she observed seven or eight

“puddles of water, like they were drying up like in different spots.” However,

upon questioning, she admitted that she could not confirm that the spots were in

fact water. She also admitted that there was no water shown in the pictures Mr.

White took after the incident occurred. Further, Ms. Hollingsworth testified that

the only liquid on the floor when she went into the bathroom after the incident was

coffee. Thus, the only allegation as to the existence of a substance on the

bathroom floor that presented an unreasonable risk of harm was Ms. Bryant’s

deposition testimony. Mere conclusory allegations, improbable inferences, and

unsupported speculation will not support a finding of a genuine issue of material

fact. Sears v. Home Depot, USA, Inc., 06-201 (La. App. 4 Cir. 10/18/06), 943

So.2d 1219, 1228, writ denied, 06-2747 (La. 1/26/07), 948 So.2d 168. Even if

contained in a deposition, such inferences, allegations, and speculation are not

sufficient to satisfy the opponent’s burden of proof. Id.

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

6
See also Alexander v. Hancock Bank, 16-0662 (La. App. 4 Cir. 2/8/17), 212 So.3d 713.

19-CA-464 10

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 La. R.S. 9:2800.6 or La. C.C.

art. 2317.1, we find that Ms. Bryant failed to show that the alleged water presented

an unreasonable risk of harm and that Ray Brandt knew or should have known of

the alleged unreasonable risk of harm. Ms. Bryant thus failed to produce factual

support sufficient to show that she will be able to meet her evidentiary burden of

proof at trial as required by law. Therefore, as there remains no genuine issue as to

material fact and the mover is entitled to judgment as a matter of law, we find the

trial court correctly granted Ray Brandt’s motion for summary judgment.

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

19-CA-464 11

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
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JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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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:

19-CA-464
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. DONALD M. FENDLASON (DISTRICT JUDGE)
JONATHAN E. LEY (APPELLANT) EDWARD L. MORENO (APPELLANT)

MAILED
TRAVIS J. CAUSEY, JR. (ATTORNEY) WAYNE R. MALDONADO (ATTORNEY)
CHRISTIAN A. GALLEGUILLOS 3850 NORTH CAUSEWAY BOULEVARD
(ATTORNEY) SUITE 1280, LAKEWAY TWO
JOHN W. REDMANN (ATTORNEY) METAIRIE, LA 70002
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