Robert Harris v. Tractor Supply Company

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

Ll 2023 CA 0337

ROBERT HARRIS
VERSUS

TRACTOR SUPPLY COMPANY

Judgment Rendered: OCT_3 0 2023

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On Appeal from the
Twenty-Second Judicial District Court
In and for the Parish of Washington
State of Louisiana
No. 115146, Division I

The Honorable Reginald T. Badeaux, III, Judge Presiding

* Ok ok OK
John S. Alford Attorneys for Plaintiff/A ppellant
Chad D. Lederman Robert Harris
Blair B. Alford
Blake R. David
Covington, Louisiana
Brett Michael Bollinger Attorneys for Defendant/Appellee
Jeffrey E. McDonald Tractor Supply Company
L. Peter Englande, Jr.
Jeremy H. Call
Covington, Louisiana
OK ok ok xk

BEFORE: WELCH, HOLDRIDGE, AND WOLFE, JJ.

Wolfe 3: CBurcCurs.

HOLDRIDGE, J.

The plaintiff, Robert Harris, appeals a trial court judgment granting a motion
for summary judgment in favor of the defendant, Tractor Supply Company,
dismissing the plaintiff's claims with prejudice. For the reasons that follow, we
reverse and remand to the trial court.

FACTS AND PROCEDURAL HISTORY

The plaintiff filed a petition for damages against the defendant alleging that
on January 11, 2020, the plaintiff was a customer at a Tractor Supply Company store
located in Franklinton, Louisiana.' The plaintiff was searching for a saddle rack
with his daughter and girlfriend. The only available saddle rack was in a box placed
on the top shelf. While attempting to see the price of the saddle rack, the plaintiff's
hand touched the box, and the box fell off of the top shelf striking him in the head.
As a result of the accident, the plaintiff was injured. He alleged that he sustained
damages due to the defendant’s negligence. Approximately one week later, after
learning of the severity of his injury, the plaintiff reported the accident to the
defendant.”

The defendant answered the plaintiffs petition for damages, generally
denying all of the plaintiff's allegations, and filed a peremptory exception raising

the objection of no cause of action. On October 28, 2021, the defendant filed a

' The record on appeal does not provide the date the plaintiff's petition for damages petition for
damages was filed; however, the parties’ briefs state that it was filed on October 20, 2020.

* On January 23, 2020, the plaintiff had a prescheduled visit with the Veterans Affairs (V.A.)
hospital, before the accident occurred at the defendant’s store, for his previous neck pain. The
plaintiff was going to the V.A. to have a shot in his neck to alleviate the pain. The physician at
the V.A. did a neurological test and told him that he had a spinal cord injury and needed to go to
the emergency room. A few months later, the plaintiff had a three-level spinal fusion.

> The defendant’s exception failed to comply with La. Dist. Ct. Rule 9.8(a) “All exceptions ...,
including those incorporated into an answer, shall be accompanied by a proposed order requesting
that the exception ... be set for hearing.”) and La. Dist. Ct. Rule 9.9(b) (“When a party files an
exception ..., that party shall concurrently furnish the trial judge and serve on all other parties a
supporting memorandum that cites both the relevant facts and applicable law.”).

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motion for summary judgment against the plaintiff alleging that he could not meet
his burden of proof in this matter. The defendant argued that the plaintiff could not
prove that he did not cause the saddle rack box to fall nor could he prove that the
defendant’s negligence caused the box to be in a position that it would eventually
fall. Therefore, the defendant argued that the plaintiff could not prove that the saddle
rack box presented an unreasonable risk of harm.

On June 27, 2022, the defendant filed an ex parte motion to withdraw his
motion for summary judgment. The defendant stated that he intended to file another
motion for summary judgment with additional evidence. On July 7, 2022, the trial
court issued an order granting the defendant’s motion.

On June 27, 2022, the defendant filed a second motion for summary judgment.
The defendant filed a statement of uncontested facts in support of his motion for
summary judgment, stating the following:

1. [The] [p]laintiff allege[d] that he entered a Tractor Supply Company

store in search of a saddle rack, he discovered that the saddle racks
were stored on a top shelf above his head, and a saddle rack box fell
on his head when he attempted to manipulate it.

2. [The] [p]laintiff testified that he manipulated the box just before it

fell on him, the box did not fall until he touched it, and the box was

stable and not moving before he touched it.

3. [The] [p]laintiff described that he could not reach the box without
getting on [his] tippy toes or climbing on the rack.

4. [The] [p]laintiff did not report the incident or any injury to Tractor
Supply Company for over two weeks.

5. Tractor Supply Company employees are required to display items
according to a corporate planogram, and the saddle rack box at issue
[was] required to be displayed on the top shelf.

6. The Tractor Supply Company store had about 50-100 signs posted
throughout the store advising customers to ask for assistance with
items from the top shelf, and these signs would have been in the aisle
with the saddle rack.

7. Tractor Supply Company employees inspect[ed] the store before
opening, at closing, and multiple times throughout the day.

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8. The Tractor Supply Company store had no prior notice of an issue
with the display of saddle racks and no report of merchandise falling
off a shelf and striking a customer aside from the incident alleged in
this matter.

9. The stocking of the subject saddle rack in the location it was
displayed at the time of the subject accident was not in violation of
corporate policy.

[Internal quotation marks and record citations omitted.]

In further support of his summary judgment, the defendant filed a
memorandum that stated the deposition testimonies of the plaintiff, as well as
Bridgitte Smith and Nakita Massana, the Tractor Supply Company managers,
established that the plaintiff could not meet his burden of proof at trial under La.
C.C.P. art. 966. The defendant attached several exhibits to his memorandum, which
included: (1) his petition for damages; (2) the deposition of Robert Harris; (3) the
deposition of Bridgitte Smith; (4) the deposition of Nakita Massana; and (5) the
affidavit of Darryl Haynes, the district manager of Tractor Supply Company. In sum,
the defendant argued that its evidence established that summary judgment should be
granted in its favor because the plaintiff admittedly proved that he could not meet

the first prong of the burden of proof for prevailing in a falling merchandise case.

See Davis v. Wal-Mart Stores, Inc., 2000-0445 (La. 11/28/00), 774 So.2d 84, 90.

On August 31, 2022, the plaintiff filed a memorandum opposing the
defendant’s motion for summary judgment, arguing that there existed a genuine
issue of material fact as to whether he caused the box to fall, or whether the
defendant’s negligence caused the box to fall. In support of his argument, the
plaintiff submitted with his memorandum the affidavit of expert Gary White, a retail
consultant. Mr. White opined that the defendant “made little effort to solve and
manage [the] unsafe condition in [its] store.” Mr. White further opined that because
the saddle rack box, which was over 40 pounds in weight, was improperly placed on

the shelf, this accident was inevitable.

The plaintiff also submitted with his memorandum his deposition, as well as
the deposition of Ms. Smith, the defendant’s store manager, and an excerpt of the
deposition of Ms. Massana, the other store manager for the defendant. In her
deposition, Ms. Smith confirmed that the saddle rack box that fell on the plaintiff
was stored on the top shelf at the store and weighed approximately 42.9 pounds. Ms.
Smith further confirmed that it was in violation of the defendant’s store policy to
store the saddle rack box on the top shelf. Ms. Smith did not remember if any
assistance signs were on the aisle of the saddle rack box on the day of the accident.

On September 12, 2022, the defendant filed a motion in limine to exclude the
testimony of Mr. White. That same day, the defendant also filed a reply
memorandum in support of its motion for summary judgment. On September 15,
2022, the trial court held a hearing on the defendant’s motion for summary judgment
and motion in limine. After hearing arguments from counsel for both parties, the
trial court granted the defendant’s motion for summary judgment and dismissed the
plaintiff's claims with prejudice. In his oral ruling, the trial court judge stated, in
pertinent part:

Let me just say, first of all, let the entire record come into
evidence, including any exhibits attached thereto including depositions.

I tell you, on one hand I think [the defendant] has a really good
argument that summary judgment should be granted because [the]
plaintiff is going to be unable to meet their burden of proof, that their
client, the plaintiff, did not touch the merchandise, no matter what his
purpose might have been.

3K 3K 28 3
I think the facts of this case muddied it up that it puts it into a question
of comparative fault, which the Courts are also clear that’s an issue for
the trier of fact.

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It’s undisputed that the box didn’t fall until somebody touched it and
that person was him. But I guess there’s a little question out there,
[w]as it negligently placed up there, did they violate their policy, was it
hanging over a little bit like he says it was?

So there’s a possibility he might be found 95 percent at fault in
this. And I’d like to put it to rest for you. Like I said before, the plaintiff

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is not going to be able to meet their burden of proof. They’re not going

to be able to get that first prong. ... He already admitted he did.
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I’m going to find there is no genuine issue of fact, that plaintiff cannot

meet [his] burden of proof in this matter on that first prong. Their client

admitted he touched the box and for whatever reason I think that’s fatal

to his cause of action.
In ruling on the motion in limine, the trial court stated “I’m just going to [pretermit]
on that. I think it was not timely filed and/or premature.” The trial court signed a
judgment in accordance with its oral ruling on October 6, 2022. The plaintiff
subsequently appealed the judgment.

APPLICABLE LAW

Appellate courts review the granting of a summary judgment de novo using
the same criteria governing the trial court’s consideration of whether summary
judgment is appropriate, i.e., whether there is any genuine issue of material fact and

whether the mover is entitled to judgment as a matter of law.* See La. C.C.P. art.

966(A)(3); Lucas v. Maison Insurance Co., 2021-1401 (La. App. 1 Cir. 12/22/22),

358 So.3d 76, 83-84; Turner v. Rabalais, 2017-0741 (La. App. 1 Cir. 12/21/17), 240

So.3d 251, 255, writ denied, 2018-0123 (La. 3/9/18), 237 So.3d 1193.

The summary judgment procedure is expressly favored in the law and is
designed to secure the just, speedy, and inexpensive determination of non-domestic
civil actions. See La. C.C.P. art. 966(A)(2). The purpose of a motion for summary
judgment is to pierce the pleadings and to assess the proof in order to see whether

there is a genuine need for trial. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876

So.2d 764, 769 (per curiam). After an adequate opportunity for discovery, 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

* Although the Legislature recently amended La. C.C.P. art. 966, those amendments are not
applicable to the instant appeal. See 2023 La. Acts No. 317, § 1 (eff. Aug. 1, 2023), and 2023 La.
Acts No. 368, § 1 (eff. Aug. 1, 2023).

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to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The only documents that
may be filed in support of or in opposition to the motion are pleadings, memoranda,
affidavits, depositions, answers to interrogatories, certified medical records, written
stipulations, and admissions. La. C.C.P. art. 966(A)(4).

On a motion for summary judgment, the initial burden of proof is on the
mover. See La. C.C.P. art. 966(D)(1); Lucas, 358 So.3d at 84. If, however, the
mover will not bear the burden of proof at trial on the matter that is before the court
on the motion, the mover’s burden on the motion does not require that all essential
elements of the adverse party’s claim, action, or defense be negated. Instead, after
meeting its initial burden of showing that there are no genuine issues of material
fact, the mover may point out to the court that there is an absence of factual support
for one or more elements essential to the adverse party’s claim, action, or defense.
Thereafter, summary judgment shall be granted unless the adverse party can produce
factual evidence 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. See La. C.C.P.
art. 966(D)(1); Lucas, 358 So.3d at 84.

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. Any objection to a document shall be raised in a
timely filed opposition or reply memorandum. The court shall consider all
objections prior to rendering judgment. The court shall specifically state on the
record or in writing which documents, if any, it held to be inadmissible or declined
to consider. See La. C.C.P. art. 966(D)(2).

In ruling on a motion for summary judgment, the trial court’s role is not to
evaluate the weight of the evidence or to make a credibility determination, but

instead to determine whether there is a genuine issue of material fact. Collins v.

Franciscan Missionaries of Our Lady Health System, Inc., 2019-0577 (La. App. 1

Cir. 2/21/20), 298 So.3d 191, 194, writ denied, 2020-00480 (La. 6/22/20), 297 So.3d
773. A genuine issue is one as to which reasonable persons could disagree; if

reasonable persons could reach only one conclusion, summary judgment is

appropriate. Farrell v. Circle K Stores, Inc., 2022-00849 (La. 3/17/23), 359 So.3d

467, 478; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639

So.2d 730, 751. Any doubt as to a dispute regarding a material issue of fact must be
resolved against granting the motion and in favor of a trial on the merits. Smith, 639
So.2d at 751.
DISCUSSION
In this case, the defendant filed a peremptory exception raising the objection
of no cause of action in its answer to the plaintiffs petition for damages. Louisiana
Code of Civil Procedure article 929 provides, in pertinent part:
A. The declinatory exception, the dilatory exception, and the
peremptory exception when pleaded before or in the answer shall be
tried and decided in advance of the trial of the case.
B. Ifthe peremptory exception has been filed ... prior to the trial of the
case, it shall be tried and disposed of either in advance of or on the
trial of the case.
District Court Rules 9.8(a) states, in pertinent part:
All exceptions and motions, including those incorporated into an
answer, shall be accompanied by a proposed order requesting that the
exception or motion be set for hearing. If the exceptor or mover fails to
comply with this requirement, the court may strike the exception or
motion, may set the matter for hearing on its own motion, or take other
action as the court deems appropriate. To assist the court in scheduling
the hearing, the exception or motion, and any opposition thereto, shall
state: (1) whether or not the case is set for trial and, if so, the trial date;
and (2) whether testimony will be offered at the hearing.
The record reveals that the defendant’s peremptory exception raising the

objection of no cause of action was not stricken by the trial court, nor was it set for

a hearing or tried prior to or at the time of the trial court’s consideration of the

defendant’s motion for summary judgment. It is clear from our review of the record
that the trial court failed to consider and rule on the defendant’s peremptory
exception raising the objection of no cause of action prior to ruling on the
defendant’s motion for summary judgment.

We must decide if the trial court erred in failing to conduct a hearing on the
defendant’s exception prior to the hearing on the merits of defendant’s motion for
summary judgment as mandated by La. C.C.P. art. 929(A) and (B). In Division of

Administration, Office of Community Development - Disaster Recovery Unit v.

Stewart, 2022-0574 (La. App. 1 Cir. 12/15/22), 357 So.3d 407, 413, the plaintiff
filed a motion for summary judgment after the defendants filed their answer. Before
the hearing on the plaintiff's motion for summary judgment, the defendants filed
peremptory exceptions. This Court found that because the defendants filed their
peremptory exception after they filed their answer, the trial court was required by
La. C.C.P. art. 929(B) to rule on the peremptory exceptions prior to or at the hearing

on the merits of the plaintiff's motion for summary judgment. See also Tanner v.

Morgan, 2018-1719 (La. App. 1 Cir. 7/10/19), 280 So.3d 1237, 1239 (The plaintiff
asserted peremptory exceptions of no cause of action and no right of action in his
answer; this Court found that the trial court erred in failing to conduct a hearing on
the exceptions prior to the hearing on the merits of the plaintiffs-in-reconvention
motion for partial summary judgment as mandated by La. C.C.P. art. 929(A)). It is
clear that in cases where a party files an exception and the opposite party files a
motion for summary judgment, La. C.C.P. art. 929(A) mandates that a hearing on
the exception must be held prior to a hearing on the motion for summary judgment.
However, in this case, the same party filed an exception and a motion for summary
judgment. Since the trial court granted the motion for summary judgment, the

exception is denied and waived by that party. See Stewart, 357 So.3d at 412;

Lambert v. Riverboat Gaming Enforcement Div., Office of State Police, Dep’t of

Public Safety, State of La., 95-0872 (La. App. 1 Cir. 12/15/95), 665 So.2d 180, 181.

Therefore, we must decide if the trial court properly granted the defendant’s motion
for summary judgment.

Under La. C.C.P. art. 966(D)(1), the burden of proof in a motion for summary
judgment “rests with the mover.” We find that the defendant in this case met its
initial burden through the depositions and exhibits that it filed with its motion for

summary judgment. Jeandron v. Cenac, 2022-1158 (La. App. 1 Cir. 4/14/23), 365

So.3d 851, 856. The uncontested evidence shows that the saddle rack box was stored
on a top-shelf in the store and that the box did not fall until the plaintiff touched it.
Clearly, the defendant has established sufficient uncontested facts to carry its initial
burden under La. C.C.P. art. 966(D)(1).

Louisiana Code of Civil Procedure article 966(D)(1) further states that the
defendant’s burden does not require him to negate all essential elements of the
adverse party’s claim, which in this case is the question as to what caused the saddle
rack box to fall from the top shelf. Essential elements of the plaintiff's claim consist
of whether the actions of the plaintiff, the actions of the defendant, or a combination
of the actions of both parties caused the accident to occur. At trial, it will be the
plaintiffs burden to prove that he was not solely responsible for the saddle rack box
falling and that the negligence of the defendant contributed to the fall. The defendant
has pointed out and alleged that the plaintiff has insufficient evidence to prove that
he was not solely responsible for the saddle rack box falling or that the defendant
was negligent in causing the saddle rack box to fall. The burden now shifts under
La. C.C.P. art. 966(D)(1) to the plaintiff to produce factual support sufficient to
establish a genuine issue of material fact that the defendant’s negligence was a cause

of the merchandise falling. If the plaintiff is unable to meet his burden then summary

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judgment in favor of the defendant is mandated by La. C.C.P. art. 966. See Thi Ngo

v. Walmart Inc., 2020-71 (La. App. 5 Cir. 10/5/20), 304 So.3d 593, 594, writ denied,

2020-01279 (La. 1/12/21), 308 So.3d 709.

In deciding the issue of whether the plaintiff carried his burden, we are guided
by La. C.C. art. 2323(A) that states “[i]n any action for damages where a person
suffers injury ... the degree or percentage of fault of all persons causing or
contributing to the injury ... shall be determined ... .” In a comparative law state
such as Louisiana, both the plaintiff and the defendant in this case may be a cause of
the injuries to the plaintiff, and the trier of fact (judge or jury) would be required to
determine the percentage of fault of each party at a trial on the merits. See Martin
v. Thomas, 2021-01490 (La. 6/29/22), 346 So.3d 238, 245 (holding that under
Louisiana’s pure comparative fault regime, the negligence “of all persons,”
including those not in the litigation, those without the ability to pay, and the injured
victim him- or herself, “shall” be assigned a percentage of fault.) The allocation of
fault is a factual finding. Where reasonable minds can differ as to the comparative

fault of the parties, summary judgment is inappropriate. Carpenter v. Thomas, 2022-

0872, 2022-0873 (La. App. 1 Cir. 3/13/23), 362 So.3d 977, 987.

Applying the substantive legal concepts and recognizing that the defendant
has met its initial burden, we must determine if the plaintiff has met his burden of
producing factual support sufficient to establish the existence of a genuine issue of
material fact as to the essential elements he must prove to support his claim. Farrell,
359 So.3d at 472. We are also cognizant of the fact that in determining if a genuine
issue of material fact exists, we cannot determine the credibility of the contents of
the plaintiffs deposition nor can we determine what weight it is to be given.
Credibility and weighing evidence are not appropriate in summary judgment

determinations. See Smith, 639 So.2d at 751; Collins, 298 So.3d at 194.

1]

The Louisiana Supreme Court stated the following in Davis, 774 So.2d at 90:
To prevail in a falling merchandise case, the customer must

demonstrate that (1) he or she did not cause the merchandise to fall, (2)

that another customer in the aisle at that moment did not cause the

merchandise to fall, and (3) that the merchant’s negligence was the

cause of the accident: the customer must show that either a store

employee or another customer placed the merchandise in an unsafe

position on the shelf or otherwise caused the merchandise to be in such

a precarious position that eventually, it does fall. (Emphasis added.)

In reading Davis, we must interpret the burden on the plaintiff in this case to be that:
(1) he did not solely cause the merchandise to fall; (2) that another customer did not
solely cause the merchandise to fall; and (3) that the merchant’s negligence was “a”
(not “the”) cause of the accident.

Reviewing the three factors established in Davis, we can easily conclude that
the plaintiff has established and it is uncontested that factor two (2) is not present.
There is no evidence that another customer caused the saddle rack box to fall. The
more difficult factors are numbers one (1) and three (3), was the plaintiff the sole
cause of the saddle rack box falling and if not, was the negligence of the merchant
or its employee in placing the saddle rack box in an unsafe position a cause of the
plaintiff's injuries. The burden is on the plaintiff to show that there are genuine
issues of material fact as to these two elements of the plaintiff's case. Only when
the plaintiff has negated the first two possibilities and demonstrated the last will he
have proved the existence of an “unreasonably dangerous” condition on the
merchant’s premises. Davis, 774 So.2d at 90.5

In this case, the plaintiff argues that summary judgment is not appropriate

because an issue of material fact exists as to whether the defendant’s negligence was

a cause of the accident, and whether the plaintiff's touch was a cause or the sole

> In a “falling merchandise” case under La. R.S. 9:2800.6(A), the standard is that the merchant
must use reasonable care to keep its aisles, passageways and floors in a reasonably safe condition
and free of hazards which may cause injury. Davis, 774 So.2d at 90. This duty includes a
reasonable effort to keep the premises free of any hazardous conditions which reasonably might
give rise to damage. La. R.S. 9:2800.6(A).

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cause of the falling merchandise. In support of his argument, the plaintiff submitted
his deposition as evidence to oppose the defendant’s motion for summary judgment.°
In his deposition, the plaintiff stated that on the day of the accident, the only available
saddle rack box was placed on the top shelf, which was approximately seven feet
high. The plaintiff stated that the box itself was positioned vertically and protruded
over the edge of the shelf. Due to the positioning of the box, the plaintiff stated that
he attempted to get assistance from store employees when he “went to the end of the
aisle, looked around, went back to the other end of the aisle, looked around, went to
the service desk, didn’t see anybody, and came back.” The plaintiff further stated
that he knows for certain that there was not a “please ask for assistance” sign on the
aisle where the accident occurred on the day of the incident. The plaintiff stated that
due to the top-heavy nature of the box, as soon as he lifted his hands above his head
and touched the box to see the price, it toppled over and fell onto his head.

After reviewing the summary judgment evidence presented by the plaintiff,
we find that he carried his burden of proving that there are genuine issues of material
fact as to whether the defendant exercised reasonable care in placing the saddle rack
box on the top shelf of its store, and whether the defendant should have anticipated
the actions of the plaintiff or third parties. There are genuine issues of material fact
as to whether the plaintiff was the sole cause of the saddle rack box falling, and as
to whether the placement of a 42.9-pound box on a seven-foot-high top shelf would
cause it to fall when touched by a customer creating an unreasonable risk of harm.

Only if reasonable persons could reach one conclusion would summary
judgment be appropriate in this case. Farrell, 359 So.3d at 478; Smith, 639 So.2d at

746. Reasonable persons could disagree as to whether the plaintiff, the defendant,

° The plaintiff also attached the affidavit of an expert, Mr. White, to his opposition memorandum.
The defendant filed a motion in limine to exclude the testimony of Mr. White. The trial court did
not rule on the motion in limine. Due to our holding in this matter, we will not address the motion
in limine to exclude Mr. White’s affidavit.

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or both could be a cause for the saddle rack box to fall. Therefore, summary
judgment is not appropriate since it is the factfinder who must determine whether
the defendant created an unreasonably dangerous condition, which was potentially
a cause of the plaintiff's injuries after a trial on the merits. The merchant has a duty
to safely shelve or display its merchandise to include the foreseeable removal and

replacement of the goods by its customers. See Stepherson v. Wal-Mart Stores, Inc.,

34,547 (La. App. 2 Cir. 4/4/01), 785 So.2d 950, 954.

There are factual questions as to whether placing the saddle rack box that
weighed over 40 pounds on the top shelf over seven feet high created an
unreasonably dangerous condition as mandated by La. R.S. 9:2800.6 and Davis.
There is also a genuine dispute as to whether the plaintiff solely caused the saddle
rack box to fall and/or whether the defendant’s improper placement of the box was

the or a cause of the accident. See Cullivan v. Wal-Mart Stores Inc., No. CV 17-

00840, 2018 WL 1368333, *4 (W.D. La. Mar. 16, 2018) (denying summary
judgment to merchant where a genuine dispute existed “as to whether [the] [p]laintiff
caused the merchandise to fall by ‘touching’ it and/or whether Wal-Mart’s failure to

use a restraining device was the cause of the accident”); Joseph v. Lowe’s Home

Centers, Inc., 2022-694 (La. App. 3 Cir. 5/24/23), 2023 WL 3606325, *3

(unpublished), writ denied, 2023-00881 (La. 10/10/23), So.3d (La.
10/10/23) (reversing summary judgment in favor of merchant where conflicting
testimony created genuine dispute regarding whether customer caused merchandise

to fall); Santos v. Dollar Mania, Inc., 50,481 (La. App. 2 Cir. 6/22/16), 197 So.3d

701, 704 (reversing summary judgment in favor of merchant finding that the
factfinder should be required to determine whether the unstable belt rack created an

unreasonably dangerous condition which was a cause of the accident).

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Accordingly, after a de novo review, we find that the plaintiff met his burden
of producing factual support that created a genuine issue of material fact as to
whether the action of the defendant in placing a saddle rack box on the top shelf,
where it could fall upon a customer, was an unreasonably dangerous condition that
was a cause of the injuries the plaintiff sustained. Furthermore, there are conflicting
issues of fact as to whether the plaintiff was the sole cause of the saddle rack box
falling or whether it was a combination of the fault of the plaintiff and the defendant
that contributed to the plaintiffs injuries. Therefore, we reverse the trial court
judgment that granted summary judgment in favor of the defendant and remand for
further proceedings.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court and
remand this matter for further proceedings consistent with this opinion. All costs of
this appeal are assessed to the defendant, Tractor Supply Company.

REVERSED AND REMANDED.

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