Beverly Hill v. Kmart Corporation and Kellermeyer Bergensons Services LLC

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

BEVERLY HILL NO. 2025 CW 0885
VERSUS PAGE 1 OF 2
KMART CORPORATION AND FEBRUARY 11, 2026

KELLERMEYER BERGENSONS
SERVICES, LLC

In Re: Kellermeyer Bergenson Services, LLC and Zurich American
Insurance Company, applying for supervisory writs, 23rd
Judicial District Court, Parish of Ascension, No.
118619.

BEFORE: McCLENDON, C.J., THERIOT, PENZATO, EDWARDS and
BALFOUR, JJ.

WRIT GRANTED. The trial court’s July 21, 2025 judgment, which
denied the motion for summary judgment filed by defendants,
Kellermeyer Bergensons Services, LLC (“KBS”) and its insurer,
Zurich American Insurance Company, is reversed. Regardless of
whether La. R.S. 9:2800.6 or La. Civ. Code art. 2317.1 applies, a
plaintiff must prove the condition presented an unreasonable risk
of harm, the defendant had actual or constructive knowledge of the
risk, and it failed to exercise reasonable care. See Woods v. Winn-
Dixie Stores, Inec., 2022-0191 (La. App. list Cir. 9/16/22), 353
So.3d 182. A plaintiff must make a positive showing of the
existence of the condition prior to the fall. See Cyprian v. State
Farm Fire & Cas. Co., 2016-0717 (La. App. lst Cir. 2/17/17) 2017
WL 658246, *3 (citing White v. Wal-Mart Stores, Inec., 97-0393 (ha.
9/9/97), 699 So.2d 1081, 1084). A defendant does not have to make
a positive showing of the absence of the existence of the condition
prior to the fall. See White, 699 So.2d at 1084. “Notwithstanding
that such would require proving a negative, the [law] simply does
not provide for a shifting of the burden.” Id. During her
deposition, plaintiff, Beverly Hill, testified that she knew she
slipped on a wet floor, but she also testified that she “did not
see water on the floor or any [person] mopping or providing any
type of.. janitorial services to the floor.” According to the
deposition excerpts filed into the record, the assistant store
manager testified she did not see any liquid or water on the floor
when she arrived to take the incident report. Moreover, neither
the assistant store manager nor plaintiff could testify as to
specific knowledge of a KBS employee mopping the floor.

Additionally, constructive notice exists when the defect or
condition has existed for such a period of time that it would have
been discovered and remedied had the custodian exercised
reasonable care. See Racca v. St. Mary Sugar Cooperative, Inc.,
2002-1766 (La. App. lst Cir. 2/23/04), 872 So.2d 1117, 1126, writ
denied, 2004-0698 (La. 5/7/04), 872 So.2d 1083. The claimant who
simply shows the condition existed without an additional showing
that the condition existed for some time before the fall has not
carried the burden of proving constructive notice. See White, 699
So.2d at 1084. Plaintiff stated that she was uncertain about the
length of time the purported liquid was on the floor. Moreover,
the assistant store manager testified that it was customary for
KBS to mop the floor at 6:00 a.m. but also testified that the floor

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

NO. 2025 CW 0885
PAGE 2 OF 2

would not still be wet nearly two hours and forty minutes later -
at 8:40 a.m. when this incident allegedly occurred.

We find plaintiff, Beverly Hill, failed to meet her burden to
produce factual support to raise a genuine issue of material fact
as to either of these elements. Accordingly, the motion for summary
judgment is granted, and the claims of plaintiff, Beverly Hill,
against defendants, Kellermeyer Bergensons Services, LLC, and
Zurich American Insurance Company, are dismissed with prejudice.

PMc
MRT
AHP
BDE

Balfour, J., dissents and would deny the writ.

—~COURT OF APPEAL, FIRST CIRCUIT

ba
iif
jy
ane

FOR THE COURT