Shonda Clark v. Premier Automotive Management, LLC and Federated Insurance Foundation, Inc.

SHONDA CLARK * NO. 2024-CA-0397

VERSUS *
COURT OF APPEAL
PREMIER AUTOMOTIVE *
MANAGEMENT, LLC AND FOURTH CIRCUIT
FEDERATED INSURANCE *
FOUNDATION, INC. STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-02691, DIVISION “I-14”
Honorable Lori Jupiter, Judge
******
Judge Tiffany Gautier Chase
******
(Court composed of Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge
Monique G. Morial)

Salvador I. Bivalacqua
Robert J. Ellis, Jr.
GRIFFIN & BIVALACQUA LLC
650 Poydras Street
Suite 2615
New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLANT

Chad A. Sullivan
Cole C. Frazier
KEOGH, COX & WILSON, LTD.
701 Main Street
P. O. Box 1151
Baton Rouge, LA 70821

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
FEBRUARY 10, 2025

TGC
PAB
MGM
Plaintiff/Appellant, Shonda Clark (hereinafter “Ms. Clark”), seeks review of

the trial court’s January 9, 2024 judgment granting a motion for summary

judgment filed by Defendants/Appellees, Premier Automotive Management, LLC

and Federated Mutual Insurance Company, and the March 20, 2024 judgment

denying Ms. Clark’s motion for new trial. After consideration of the record before

this Court and the applicable law, we affirm both judgments.

Facts and Procedural History

On March 28, 2022, Ms. Clark filed a petition for damages naming Premier

Automotive Management, LLC and Federated Mutual Insurance Company

(hereinafter collectively “Premier Automotive”) as defendants. The petition

maintains that Ms. Clark slipped and fell in a puddle of water in a service garage

owned and operated by Premier Automotive.1 According to Ms. Clark’s petition,

Premier Automotive is liable for failing to maintain a safe environment, failing to

warn clients of unsafe conditions and failing to identify and mark the area as a

danger or hazard.

1 As a result of her fall, Ms. Clark contends she suffered injuries to her neck, right shoulder and

arm, lower back and left ankle.

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On October 30, 2023, Premier Automotive moved for summary judgment

maintaining there were no genuine issues of material fact as to Ms. Clark’s claims

under La R.S. 9:2800.6 – The Merchant Liability Statute. It asserted that Ms. Clark

failed to submit sufficient proof to establish that standing water or a hazardous

condition caused her fall. Specifically, it argued that Ms. Clark could not establish

an unreasonable risk of harm existed within the garage nor demonstrate that the

puddle of water was on the garage floor for an extended period. Premier

Automotive supported its motion for summary judgment with the deposition of

Ms. Clark, an incident report form and the affidavits of two Premier Automotive

employees. Ms. Clark did not oppose Premier Automotive’s motion for summary

judgment.

At the hearing, Premier Automotive maintained that there was no evidence

to support Ms. Clark’s claim that an unreasonably dangerous condition existed.2

Premier Automotive also cited to the affidavits of its two employees, one stated

that the area where Ms. Clark fell “slants down to an area which is not covered.”

The other employee stated that “[t]here were no puddles or standing water in the

area [where] the incident occurred. The area had no debris and was clear of any

obstruction.” Premier Automotive concluded that Ms. Clark could not meet her

requisite burden of proof under La. R.S. 9:2800.6. At the conclusion of the hearing,

the trial court granted Premier Automotive’s motion for summary judgment.3

Ms. Clark filed a motion for new trial maintaining good grounds existed for

a new trial. She contends an oversight by her attorney’s staff prohibited her from

2 Ms. Clark nor her attorney were present at the hearing.

3 The trial court later reduced a judgment to writing on January 9, 2024.

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properly replying to Premier Automotive’s motion and appearing at the summary

judgment hearing. Ms. Clark also asserts that the trial court’s granting of the

motion for summary judgment was premature because discovery was not complete.

After a contradictory hearing, the trial court denied the motion for new trial on

March 20, 2024, finding no good cause exist to warrant a new trial. This appeal

followed. 4

Standard of Review

This Court reviews a trial court’s decision to grant or deny a motion for

summary judgment de novo. Reddick v. State, 2021-0197, p. 5 (La.App. 4 Cir.

9/29/21), 328 So.3d 504, 507. We have stated the applicable standard of review as

follows:

Appellate courts review the grant or denial of a motion for summary
judgment de novo, using the same criteria applied by trial courts to
determine whether summary judgment is appropriate. This standard of
review requires the appellate court to look at the pleadings,
depositions, answers to interrogatories, and admission on file, together
with the affidavits, if any, to determine if they show that no genuine
issue as to a material fact exists, and that the mover is entitled to
judgment as a matter of law. A fact is material when its existence or
nonexistence may be essential to the plaintiff's cause of action under
the applicable theory of recovery; a fact is material if it potentially
insures or precludes recovery, affects a litigant's ultimate success, or
determines the outcome of the legal dispute. A genuine issue is one as
to which reasonable persons could disagree; if reasonable persons
could reach only one conclusion, no need for trial on that issue exists
and summary judgment is appropriate. To affirm a summary
judgment, we must find reasonable minds would inevitably conclude

4 A denial of a motion for new trial is an interlocutory judgment. Succession of Hickman, 2022-

0730, p. 6 (La.App. 4 Cir. 3/15/23), 359 So.3d 584, 590 (citations omitted). This Court may
consider an interlocutory judgment when it is “part of an unrestricted appeal from a final
judgment.” Id. (citation omitted). When it is clear from an appellant’s brief that he intends to
appeal the merits of the case, this Court will consider the denial of a motion for new trial as an
appeal of the judgment on the merits. Clotworthy v. Scaglione, 2011-1733, p. 3 (La.App. 4 Cir.
5/23/12), 95 So.3d 518, 520 (citation omitted). A review of Ms. Clark’s brief establishes that she
seeks review of both the underlying merits of the motion for summary judgment and the motion
for new trial. We therefore will review the trial court’s January 9, 2024 and March 20, 2024
judgments.

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that the mover is entitled to judgment as a matter of the applicable law
on the facts before the court.

Id., 2021-0197, p. 5, 328 So.3d at 507-08 (quoting Chatelain v. Fluor Daniel

Const. Co., 2014-1312, p. 3 (La.App. 4 Cir. 11/10/15), 179 So.3d 791, 793).

As to the motion for new trial, “[t]his Court reviews a ruling on a motion for

new trial under an abuse of discretion standard of review.” Sunset Harbour, LLC v.

Brown, 2022-0572, p. 9 (La.App. 4 Cir. 1/9/23), 356 So.3d 1167, 1173 (citation

omitted).

Discussion

On appeal, Ms. Clark asserts two assignments of error. First, she maintains

the trial court legally erred in granting Premier Automotive’s motion for summary

judgment when genuine issues of material fact exist. Second, Ms. Clark argues that

the trial court erred in denying her motion for new trial. Before addressing the

assignments of error, we will briefly outline the governing summary judgment

principles.

“The 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). A motion

for summary judgment may be granted if the pleadings, depositions, answers to

discovery, admissions on file and affidavits demonstrate that there is no genuine

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

Reddick, 2021-0197, p. 6, 328 So.3d at 508.

“A genuine issue is one as to which reasonable persons could disagree; if

reasonable persons could only reach one conclusion, there is no need for trial on

that issue, and summary judgment is appropriate.” Id. (citation omitted). “A fact is

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material when its existence or nonexistence may be essential to the plaintiff’s

cause of action under the applicable theory of recovery; a fact is material if it

potentially insures or precludes recovery, affects a litigant’s ultimate success, or

determines the outcome of the legal dispute.” Id. (citations omitted). Whether a

fact is material is a determination that must be made based upon the applicable

substantive law. Roadrunner Transp. Sys. v. Brown, 2017-0040, p. 7 (La.App. 4

Cir. 5/10/17), 219 So.3d 1265, 1270 (citation omitted). La. C.C.P. art 966(D)(1)

provides that:

The burden of proof rests with the mover [on a motion for
summary judgment]. 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, 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.
If the adverse party fails to set forth specific facts demonstrating a genuine issue of

material fact, summary judgment shall be rendered against the adverse party if

appropriate. La. C.C.P. art. 967(B).

In its memorandum in support of its motion for summary judgment, Premier

Automotive maintains that Ms. Clark is unable to satisfy her requisite burden of

proof that Premier Automotive is liable under La. R.S. 9:2800.6. Specifically, it

contends that Ms. Clark cannot establish that a hazardous condition existed within

the garage, that Premier Automotive had notice of the hazardous condition prior to

the accident or that the hazard existed for an extended period of time before she

fell. Although Ms. Clark did not oppose the motion for summary judgment, nor

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appear at the hearing, we nonetheless are required to conduct a de novo review,

analyzing the law and facts. See generally Guilbeaux v. Lupo Enterprises, L.L.C.,

2021-0053, pp. 8-9 (La.App. 4 Cir. 5/19/21), 321 So.3d 447, 454 (finding that this

Court and other Louisiana circuit courts have applied La. R.S. 9:2800.6 – The

Merchant Liability Statute – to slip and falls in merchant parking lots) (citations

omitted). La. RS. 9:2800.6 provides, in pertinent part:

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.

With these principles in mind, we find the pivotal inquiry is whether Premier

Automotive established an absence of factual support for one or more elements to

Ms. Clark’s claim. See Guilbeaux, 2021-0053, p. 9, 321 So.3d at 454.

Premier Automotive attached Ms. Clark’s deposition in support of its motion

for summary judgment pointing out her lack of conclusiveness of the exact cause

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of her fall. Ms. Clark testified that she recalled that it rained earlier in the day on

the date of the accident. She explained that she was wearing “Jordan slides”/gym

slippers and was walking quickly when she fell. Although, she did not observe

anything on the ground prior to falling, Ms. Clark described her back as damp after

her fall and therefore assumed she fell in a puddle of water. She described the

amount of water under her shoes as the size of a “softball.”

In further support of its motion for summary judgment, Premier Automotive

attached the affidavits of two employees: Terry Blackwood (hereinafter “Mr.

Blackwood) – the Service Manager of Premier Automotive and Lillian Scott

(hereinafter “Ms. Scott”) – an employee of Premier Automotive. The affidavits

stated that customers often traverse the service garage area “throughout the day,”

acknowledged wet conditions on the day of Ms. Clark’s accident and denied any

prior complaints or accidents in that area prior to Ms. Clark’s accident. According

to Mr. Blackwood, the area where Ms. Clark fell is a corridor that is kept clean and

free of tools, equipment and any obstructions. In his affidavit, Mr. Blackwood

explained that the area where Ms. Clark fell slants downwards and concluded that

neither puddles nor standing water can form in the area. Ms. Scott’s affidavit states

that she was present on the day of the accident and assisted Ms. Clark in getting to

her feet after the fall. Her affidavit echoes Mr. Blackwood’s attestations and

explains that Ms. Clark fell in an uncovered area of the garage that slopes

downward; thus, there is no possibility for standing water or puddles to collect.

Likewise, the incident report, completed by Ms. Clark and attached to the motion

for summary judgment, does not mention standing water or puddles in the area.

Premier Automotive’s motion for summary judgment and attachments support its

contention that there is no evidence that standing water or puddles existed. We

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therefore find Premier Automotive satisfied its initial burden of proof to show

there was no unreasonable risk of harm. The burden then shifts to Ms. Clark to

establish that there was an unreasonable risk of harm and thus establishing a

genuine issue of material fact. La. C.C.P. art. 966 (D)(1).

Although Ms. Clark did not file an opposition in the trial court, in her brief

to this Court, she argues that summary judgment is improper because discovery is

not yet complete and genuine issues of fact remain. We disagree. Ms. Clark’s

deposition testimony was that it rained earlier in the day, that she was walking

quickly before she fell and that she was wearing “Jordan slides”/gym slippers. She

also concedes that there were no objects or debris obstructing her vision, that she

“assumed” she fell in water and saw a “softball sized” puddle under her feet

afterwards. Ms. Clark’s deposition cites only to circumstantial evidence to indicate

she believed she fell in a puddle of water. When questioned at her deposition as to

the exact location where she fell, Ms. Clark stated that she walked through the

garage doors where the cars entered and believed she slipped in water. Conversely,

Mr. Blackwood and Ms. Scott’s attestations were that there was no water in the

area where Ms. Clark fell nor any reports of standing water or puddles prior to the

incident.

Our de novo review of the record reveals that Ms. Clark’s contentions are

based upon conclusory allegations and unsupported speculation. Ms. Clark

speculates whether a hazardous substance or an unreasonable risk of harm caused

her fall. In support of her claims, Ms. Clark can only cite to the possibility of the

existence of standing water or puddles. Her speculation that standing water or a

puddle existed because of her damp back is insufficient to establish a genuine issue

of material fact. “Mere conclusory allegations, improbable inferences and

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

fact.” Moon v. Safeway Ins. Co. of Louisiana, 2022-0455, p. 15 (La.App. 4 Cir.

12/6/22), 353 So.3d 352, 362 (quoting Sears v. Home Depot, USA, Inc., 2006-

0201, p. 12 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228) (citations omitted).

Based on the record before this Court, we find Ms. Clark cannot meet her burden

of proof under La. R.S. 9:2800.6. She has not established that an unreasonable risk

of harm existed which caused her fall. Having determined that Ms. Clark failed to

meet her requisite burden of proof, we pretermit further discussion of the

remaining elements of La. R.S. 9:2800.6. Accordingly, the trial court did not err in

granting summary judgment.

Motion for New Trial

Ms. Clark’s motion for new trial contends that good grounds exist for a new

trial: (1) because an oversight of her attorney’s secretary resulted in the failure to

oppose the motion for summary judgment and appear at the summary judgment

hearing; and (2) that the granting of Premier Automotive’s motion was premature

due to outstanding discovery. We disagree.

La. C.C.P. art. 1973 provides that a new trial may be granted if there “is

good ground therefor, except as provided by law.” A trial court is permitted to use

its discretion in ordering a new trial when it is “convinced by [its] examination of

the facts that the judgment would result in a miscarriage of justice.” Caceres v.

United Auto. Ins. Co., 2014-0418, p. 9 (La.App. 4 Cir. 11/5/14), 154 So.3d 584,

589 (quoting Horton v. Mayeaux, 2005-1704, pp. 9-10 (La. 5/30/06), 931 So.2d

338, 344) (citation omitted). The record indicates that Premier Automotive

submitted answers to Ms. Clark’s request for admission, interrogatories and

request for production of documents. Moreover, the arguments raised in the motion

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for new trial do not negate the fact that Ms. Clark failed to timely file an opposition

to the motion for summary judgment. See La. C.C.P. art. 966 (B)(1) and Mahe v.

LCMC Health Holdings LLC, 2023-00025, pp. 1-2 (La. 3/14/23), 357 So.3d 322

(finding that the “shall” language within La. C.C.P. art. 966(B) is mandatory and

does not allow circumvention of its deadlines). We that find even if an opposition

was submitted and/or her attorney appeared at the hearing, it is unlikely that a

different outcome would have resulted.

Conclusion

Accordingly, we find there are no genuine issues of material fact. The trial

court considered Premier Automotive’s motion for summary judgment and

determined that it satisfied its burden of proof and that no genuine issues of

material fact existed as to Ms. Clark’s claims. Specifically, the trial court

determined that Ms. Clark failed to show that an unreasonable risk of harm existed

which caused her to fall and could not meet her burden of proof under La. R.S.

9:2800.6. Therefore, we find the trial court did not err in granting Premier

Automotive’s motion for summary judgment.

The record does not indicate that the granting of a new trial would have

yielded different results. See Caceras, 2014-0418, p. 12, 154 So.3d at 591 (finding

“every timely filed motion for new trial does not warrant the granting of a new trial

because not every case involves a miscarriage of justice.”) (citation omitted). We

therefore find Ms. Clark failed to show that good grounds for a new trial exist. As

such, the trial court did not abuse its discretion in denying Ms. Clark’s motion for

new trial.

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Decree

Based on the foregoing, the trial court’s January 9, 2024 and March 20, 2024

judgments are affirmed.

AFFIRMED

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