Duatlanzer C. Miller v. DG Louisiana, LLC

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

DUATLANZER C. MILLER NO. 2022 CW 0063

VERSUS

DG LOUISIANA, LLC MAY 12, 2022

In Re: DG Louisiana, LLC, applying for supervisory writs,

22nd Judicial District Court, Parish of St. Tammany,
No. 202013600.

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

WRIT GRANTED. The judgment of the district court signed on

January 31, 2022, denying the motion for summary judgment filed

by the defendant, DG Louisiana, LLC, is reversed. Under La. R. S.
9: 2800. 6( B)( 2), the plaintiff, Duatlanzer C. Miller, failed to

produce evidence sufficient to establish the existence of a

genuine issue of material fact as to a hazardous condition that

existed for " such a period of time that it would have been
discovered if the merchant had exercised reasonable care." La.

R. S. 9: 2800. 6( C)( 1). When relying upon constructive notice

under La. R. S. 9: 2800. 6, a 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 defendant on notice of its
existence," which is an essential element of the plaintiff' s

claim. White v. Wal- Mart Stores, Inc., 97- 0393 ( La. 9/ 9/ 97), 699
So. 2d 1081, 1082. Therefore, the motion for summary judgment
filed by the defendant is granted, and the plaintiff' s claims

are dismissed.

JMG
WRC

Holdridge, J., concurs. Under Louisiana Code of Civil

Procedure Article 966( D), the mover has the burden of proof. In
this case, through the deposition of Kelly Pohlman and the

discovery responses, the relator proved that the plaintiff fell
on the store floor, there may have been a damp substance on the
floor, and if there was a substance on the floor, the store

manager and only employee in the store did not know how long the
substance was on the floor. Under Article 966( D)( 1), the burden
then shifted to the plaintiff to produce evidence that a

substance was on the floor at the time the plaintiff fell, the

substance created a hazardous condition, and the hazardous
condition existed for such a period of time that the relator

should have discovered it. The plaintiff failed to carry her
burden of producing evidence of a material factual dispute by
proving that a hazardous condition existed on the floor of the
store for a length of time sufficient to put the relator on

notice of its existence. White v. Wal- Mart stores Inc., 97- 0393
La 9/ 9/ 97), 699 So. 2d 1081, 1082. Therefore, the trial court

erred in not granting the motion for summary judgment.

COURT O/ FIRST CIRCUIT

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DEPUTY CLERK OF COURT
FOR THE COURT