Felicia Hawkins v. Hi Nabor Supermarket, LLC and Travelers

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2023 CA 0978

FELICIA HAWKINS

VERSUS

HI NABOR SUPERMARKET, LLC AND TRAVELERS

Judgment Rendered. FEB232024

Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. C673175, Sec. 23

The Honorable Kelly Balfour, Judge Presiding

Kathleen M. Wilson Counsel for Plaintiff/Appellant
Baton Rouge, Louisiana Felicia Hawkins

Janice M. Reeves Counsel for Defendant/Appellee
Mandeville, Louisiana Hi Nabor Supermarket, LLC

BEFORE: THERIOT, PENZATO, AND GREENE, JJ.

THERIOT, J.

In this supermarket trip -and -fall case, the plaintiff appeals a summary

judgment dismissing her suit. For the reasons set forth herein, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Felicia Hawkins, filed the instant suit on August 27, 2018, seeking

damages for injuries she allegedly sustained on August 27, 2017, when she tripped

and fell over a stocking cart while shopping at Hi Nabor Supermarket on

Winbourne Avenue in Baton Rouge. Hawkins' petition alleged that the stocking

cart " constituted a vice, defect, ruin, and unreasonably dangerous condition,

whereby it created an unreasonable risk of harm to residents, including [ Hawkins],

which was foreseeable."

On February 6, 2023, defendant, Hi Nabor Supermarket, L.L.C. (" Hi

Nabor"), filed a motion for summary judgment, seeking dismissal of all of

Hawkins' claims against it. Hi Nabor asserted that Hawkins lacked factual support

for an essential element of her claim, i. e., that the premises had a vice or defect or

unreasonably dangerous condition, and that it is entitled to summary judgment as a

matter of law. In support of its motion for summary judgment, Hi Nabor filed

Hawkins' petition for damages; the affidavit of its Risk Manager, Cristi Guerin,

with the store' s surveillance video of the incident attached; the affidavit of its Store

Manager, Thomas Porter; and excerpts from Hawkins' deposition. Hi Nabor' s

motion was set for hearing on March 27, 2023.

Hawkins did not file an opposition to Hi Nabor' s motion for summary

judgment. However, after the time period for filing an opposition had expired,'

Hawkins' counsel filed a motion to continue the hearing on Hi Nabor' s motion. Hi

Nabor opposed the motion to continue, pointing out that this is an " old lawsuit,"

discovery is complete, and while Hawkins had ample time since the filing and

Absent the consent of the parties and the court, an opposition to a motion for summary judgment must be filed and
served not less than fifteen days prior to the hearing on the motion. La. C.C. P. art. 966( 6)( 2).

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service of the motion on or around February 6, 2023 to prepare an opposition, she

did not do so and waited until less than a week before the hearing on the motion for

summary judgment to file a motion to continue. In light of Hi Nabor' s opposition

to the continuance, Hawkins then filed a motion for leave to file a late response to

the motion for summary judgment and again requested a new hearing date.

Although there was an opposition to the motion for summary judgment attached to

Hawkins' motion,
she did not attempt to file any documents in support of her

opposition. The trial court denied Hawkins' motion.

A hearing was held on the motion on March 27, 2023. Neither Hawkins nor

her attorney was present. On April 4, 2023, the trial court signed a judgment

stating that it considered " the pleadings, memoranda, and exhibits attached

thereto," and found the law and evidence to be in favor of Hi Nabor. Accordingly,

the trial court granted Hi Nabor' s motion for summary judgment and dismissed all

of Hawkins' claims with prejudice.

Hawkins appealed, arguing that the trial court erred in granting summary

judgment " solely because an opposition was filed late" and without sufficient proof

that movers were entitled to judgment as a matter of law.

DISCUSSION

Louisiana Code of Civil Procedure article 966 was recently amended by

2023 La. Acts. Nos. 317, § 1, and 368, § 1, effective August 1, 2023. This court

has determined that the 2023 amendments to La. C.C. P. art. 966, which expanded

the exclusive list of documents that are considered competent evidence in support

of or in opposition to a motion for summary judgment and changed the duties of

parties in supporting and opposing motions for summary judgment, are substantive

and therefore cannot be applied retroactively. See Ricketson v. McKenzie, 2023-

0314, p. 7- 9 ( La.App. 1 Cir. 10/ 4/23), --- So. 3d ---, ---; see also La. C. C. art. 6 (" In

the absence of contrary legislative expression, substantive laws apply prospectively

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only. Procedural and interpretive laws apply both prospectively and retroactively,

unless there is a legislative expression to the contrary."). Accordingly, we will

apply the version of La. C. C.P. art. 966 in effect at the time of the March 27, 2023

hearing to the matter before us. See Ricketson, 2023- 0314 at p. 10, --- So. 3d at ---

Summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of every action. The procedure is favored and shall be

construed to accomplish these ends. La. C. C. P. art. 966( A)( 2). After an

opportunity for adequate 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 to judgment as a matter of

law. La. C. C. P. art. 966( A)( 3).

Appellate courts review summary judgments de novo, using the same

criteria that govern the trial court' s consideration of whether summary judgment is

appropriate. Troncoso v. Point Carr Homeowners Ass' n, 2022- 0530, p. 16

La.App. 1 Cir. 1/ 10/ 23), 360 So. 3d 901, 913.

The burden of proof on a motion for summary judgment rests with the

mover. La. C. C. P. art. 966( D)( 1). 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. Rather, the mover must 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. Id.

The mover on a motion for summary judgment can meet its burden of proof on the

motion by filing supporting documentary evidence consisting of pleadings,

memoranda, affidavits, depositions, answers to interrogatories, certified medical

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records, written stipulations, and admissions with its motion for summary

judgment. La. C. C. P. art. 966( A)( 4). The court may only consider those

documents filed in support of or in opposition to the motion for summary

judgment. La. C. C. P. art. 966( D)(2).

Although the court may only consider those documents filed in support of or

in opposition to the motion for summary judgment, the failure to file an opposition

to a motion for summary judgment does not automatically require that the motion

be granted, as the initial burden of proof is on the mover. See Auricchio v.

Harriston, 2020- 01167, p. 5 n.2 ( La. 10/ 10/ 21), 332 So. 3d 660, 663 n. 2; La. C. C. P.

art. 966( D)(2). See also La. C. C. P. art. 966( A)( 3) ("[ A] motion for summary

judgment shall be granted if the motion, memorandum, and supporting documents

show that there is no genuine issue of material fact and that the mover is entitled to

judgment as a matter oflaw." [ emphasis added]).

Although Hawkins argues on appeal that the trial court erred in granting

summary judgment dismissing her suit solely because of her failure to file a timely

opposition, the record does not support this assertion. As previously noted, the

trial court' s judgment states that the trial court considered " the pleadings,

memoranda, and exhibits attached thereto," and found the law and evidence to be

in favor of Hi Nabor. This assignment of error has no merit.

The remaining issue before us on appeal is whether summary judgment was

properly rendered under La. C. C. P. art. 966( B)( 1), i. e., whether the motion,

memorandum, and supporting documents show that there is no genuine issue of

material fact and that the mover is entitled to judgment as a matter of law.

Whether a particular fact in dispute is material can be seen only in light of the

substantive law applicable to the case. Troncoso, 2022- 0530 at p. 17, 360 So. 3d at

914.

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The Merchant Liability Act, La. R.S. 9: 2800.6, provides that a merchant

must make a reasonable effort to keep its premises free of any hazardous

conditions which reasonably might give rise to damage. La. R.S. 9: 2800.6(A). A

hazardous or unreasonably dangerous condition is a condition that creates an

unreasonable risk of harm to customers under the circumstances. Campbell v.

Dolgencorp, LLC, 2019- 0036, p. 9 ( La.App. 1 Cir. 1/ 9/ 20), 294 So. 3d 522, 529.

Thus, under the Merchant Liability Act, a plaintiff injured by a condition of a

merchant' s premises must prove all of the following: ( i) the condition presented an

unreasonable risk of harm to the claimant and that risk of harm was reasonably

foreseeable; ( ii) prior to the occurrence, the merchant either created or had actual

or constructive notice of the condition which caused the damage; and ( iii) the

merchant failed to exercise reasonable care. La. R.S. 9: 2800.6( 8).

The issue before the trial court on Hi Nabor' s motion for summary judgment

was the first element of proof, i.e., whether the stocking cart presented an

unreasonable risk of harm to Hawkins and whether that risk of harm was

reasonably foreseeable. Determining whether a condition creates an unreasonable

risk of harm requires balancing the gravity and risk of harm against the individual

and societal rights and obligations, the social utility, and the cost and feasibility of

preventing the harm. Louisiana courts have adopted a four-part risk -utility

balancing test to determine whether a condition presents an unreasonable risk of

harm. This test requires consideration of: ( i) the utility of the complained -of

condition; ( ii) the likelihood and magnitude of harm, including the obviousness

and apparentness of the condition;2 ( iii) the cost of preventing the harm; and ( iv)

the nature of the plaintiffs activity in terms of its social utility or whether it is

2 Although the fact that a condition on a merchant' s premises was open and obvious previously barred recovery, the
Louisiana Supreme Court has recently clarified the " open and obvious doctrine," holding that the fact that a
condition is open and obvious is simply a factor to be considered in the second prong of the risk -utility balancing
test ( the likelihood and magnitude of harm, including the obviousness and apparentness of the condition), but is not
necessarily a bar to recovery. Farrell v. Circle K Stores, Inc., 2022- 00849, pp. 12- 13 ( La. 3/ 17/ 23), 359 So.3d 467,
478.

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dangerous by nature. Latour v. Steamboats, LLC, 2023- 00027, pp. 8- 9 ( La.

10/ 20/ 23), 371 So. 3d 1026, 1035- 36. Simply put, the trier of fact must decide

whether the social value and utility of the hazard outweigh, and thus justify, its

potential harm to others. Id.

In support of its motion, Hi Nabor filed the affidavit of its Risk Manager,

Cristi Guerin, who attested that following Hawkins' report of a fall, surveillance

video was captured depicting the incident involving Hawkins. Guerin attested that

she viewed the video and that it showed Hawkins standing in front of a yellow

caution cone, then walking around and behind the stocking cart to look at meat in a

refrigerated display case, then turning around and running into the stocking cart,

and finally making a report of the incident to the store manager.

A copy of the store surveillance video of the incident was attached to

Guerin' s affidavit. The video shows the stocking cart in place in front of the

refrigerated meat display, with two large yellow caution cones placed in front of it,

when Hawkins approached. The stocking cart was a rectangular flatbed cart with

tall sides ( approximately Hawkins' height). Cardboard boxes were stacked almost

all the way to the top of one side of the cart and about half as high on the other

side, with a space in between the two stacks of boxes. Hawkins initially stood

behind the yellow caution cones and peered between the stacks of boxes on the cart

at the meat in the refrigerated meat display, and then walked around the cart to

stand between the stocking cart and the refrigerated meat display to look more

closely at the meat in the display. At no point while Hawkins was in the area was

the cart or any of its contents moved. After looking at the meat in the refrigerated

display, Hawkins turned around and walked right into the stocking cart that was

directly in front of her, falling over the cart.

Hi Nabor also filed the affidavit of its Store Manager, Thomas Porter, in

support of its motion. Porter was on duty on August 27, 2017, and took Hawkins'

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verbal report of the incident. Porter attested that on the date of the incident,

Hawkins reported to him that the stocking cart was not there when she walked up

to look at the meat, but while she was looking at chicken, someone pushed the

stocking cart behind her and left it. Porter further attested that store surveillance

video was captured of the incident and that he watched the video and did not see

anyone push the cart behind Hawkins. According to Porter' s affidavit, "[ t]he

surveillance [ video] showed Hawkins stood near the yellow caution cone and then

she walked around and behind the stocking cart to get a closer look at the meat.

She picked up a package of chicken and then laid it down. She then turned and ran

into the cart."

Hi Nabor also filed excerpts from Hawkins' deposition in support of its

motion for summary judgment. Hawkins testified that she had personally used

stocking carts to bring out and stock shelves with refrigerated produce, although it

was unclear from her testimony when she did so. Although Hawkins attempted to

recount the details of the August 27, 2017 incident, her deposition was taken more

than five years later, and she had some difficulty remembering exactly where she

walked and what she saw on that date. Hawkins testified that on the date of the

incident, she walked around the stocking cart to look at the meat in the refrigerated

display case, and after looking at the meat and deciding the prices were too high,

she turned to leave and fell over the stocking cart. Hawkins confirmed that the

stocking cart was there when she walked up, and although she initially testified

that she walked around it to get to the refrigerated display case, later in her

deposition she said, " I don' t know if I walked around it, or if I passed by it and

walked to the meat case, but it ain' t like I saw it." Hawkins testified, " I ... didn' t

pay attention to the meat thing when I was walking around to go to the meat. I' m

trying to see. It was sitting there and I turned —I was going this way and I turned

around to go back to look at the meat. And I was walking from — and walking

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down the aisle and looking up from the different meats ... and I was saying the

meat and stuff was too high, and I turn around to walk off and that' s when I tripped

over the meat — the meat thing." Attempting to clarify her testimony, Hawkins

explained that although she saw the stocking cart when she approached, and it was

there the whole time, she was not paying attention to or thinking about the stocking

cart behind her until she tripped and fell.

The Second Circuit in Russell v. Morgan' s Bestway of Louisiana, LLC,

47,914, pp. 7- 8 ( La.App. 2 Cir. 4/ 10/ 13), 113 So. 3d 448, 452- 53, applied the risk -

utility balancing test to determine whether two stocking carts placed side- by- side

in a grocery store aisle presented an unreasonable risk of harm:

As shown by the photos of the accident scene, each of the stocking
carts lined up along the dairy case section of the store is
approximately four to five feet in length. The metal platform where
merchandise is stacked for transporting appears to be approximately
eight inches off the floor and supported by the four small wheels of
the cart. At one end of the stocking cart is a tall metal stand,
perpendicular to its platform with an extended bar for pushing the
cart. Clearly, a single cart empty of any merchandise and located
along a store aisle would be an obstacle that would be obvious to a
shopper. Unless such cart was located in a place where the shopper
might unexpectedly encounter it and trip, one obvious stocking cart
does not present an unreasonable risk of harm. Its utility for stocking
merchandise is a necessity, and its common use and obviousness to a
shopper make any risk slight.

The alleged hazard in this case, however, goes beyond the risk
associated with one stocking cart. There were two carts side- by- side
and [ plaintiff] stepped between those carts to access the dairy case.
That area between the carts was estimated at between three and four
feet, which was a somewhat narrow area in which to maneuver.
Turning to leave that area with her cream cheese product in hand,
plaintiff] tripped on a cart.

The utility of the complained -of condition relates to Bestway' s need
to have the stocking carts on the aisles of the store from time to time
when store customers are present. The utility and need may be
diminished somewhat in this case as the situation arose from an
unusual event involving the late arrival of the delivery truck. The
cost of preventing harm" can also be viewed as basically
inconsequential to the store as the carts could have been placed in a
different manner by Bestway around the store or even outside the
building.

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An assessment of the likelihood and magnitude of harm involving the
obstruction caused by these multiple stocking carts shows that harm to
customers would be unlikely. The carts are clearly large and obvious.
A customer might be inconvenienced by the cart placement and might
need a cart to be moved to obtain a grocery item. However, [ plaintiff)
did not testify that she was blocked from reaching the cream cheese.
After selecting her item, she simply tripped on the stocking cart as she
turned to leave the dairy case. The time indicator from the still frames
of the videotape of the accident shows that her maneuver in between
the two carts occurred in a matter of seconds, and she tripped
inadvertently on one of the carts.

Finally, the nature of plaintiff' s activity was that of a normal shopper.
She did not do anything risky in choosing to walk into the space
between the carts.

From this review, we find that the facts are undisputed as revealed by
the actual event shown on the still frames from the videotape. Even
though there were multiple stocking carts involved, we find this
situation so open and obvious that [ plaintiff) was able to observe the

carts and easily avoid any risk of harm. Generally, there are different
display arrangements and other observable obstacles in the aisles of a
grocery store. While a shopper might trip on such obstacles,
including this arrangement of multiple carts, we do not find that this
situation presents an unreasonable risk of harm making the store
responsible in this instance.

As noted by the court in Russell, stocking carts are necessary and useful in

grocery stores to restock shelves, and their common use and obviousness to a

shopper make any risk slight. Russell, 47,914 at p. 7, 113 So. 3d at 453; see also

Pistorius v. Higbee Louisiana, LLC, 54,780, pp. 13- 14 ( La.App. 2 Cir. 2/ 8/ 23), 356

So. 3d 1204, 1210, writ denied, 2023- 00331 ( La. 5/ 2/ 23), 359 So.3d 1290

S] hopping carts and stocking carts are a common sight in grocery stores, and

their presence is not unexpected.... [ G] rocery shoppers ... are generally attuned

to be on the lookout for such obstructions."). The evidence filed in support of Hi

Nabor' s motion for summary judgment shows that Hawkins was familiar with

stocking carts, having used them herself to stock produce, and that she saw and

maneuvered around the one involved in this case, which had yellow caution cones

placed in front of it, prior to falling over it. She acknowledged that she was not

paying attention to her surroundings or thinking about what was behind her after

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maneuvering around the stocking cart. Hawkins offered no evidence in opposition

to summary judgment to show that the stocking cart presented an unreasonably

dangerous condition.

The burden of proving that a condition is unreasonably dangerous is on the

plaintiff, and failure to prove the existence of an unreasonably dangerous condition

is fatal to a plaintiff' s merchant liability claim. See Wyrick v. Golden Nugget Lake

Charles, LLC, 2020- 0665, p. 8 ( La.App. 1 Cir. 12/ 30/ 20), 317 So. 3d 708, 713

Under the heavy burden of proof imposed by the Merchant Liability statute, if any

one of the statutory elements cannot be established, the claimant's entire action will

fail.). On our de novo review, reviewing the evidence filed in support of the

motion for summary judgment in light of the applicable law, we conclude that

there were no genuine issues of material fact and Hi Nabor was entitled to

summary judgment as a matter of law.

CONCLUSION

The April 4, 2023 judgment granting Hi Nabor Supermarket, L.L.C.' s

motion for summary judgment and dismissing Felicia Hawkins' claims with

prejudice is affirmed. Costs of this appeal are assessed to plaintiff, Felicia

Hawkins.

AFFIRMED.

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