Shmena Thompson Versus Dollar Up La LLC and State Farm Fire and Casualty Company

SHMENA THOMPSON NO. 22-CA-397

VERSUS FIFTH CIRCUIT

DOLLAR UP LA LLC AND STATE FARM COURT OF APPEAL
FIRE AND CASUALTY COMPANY
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 810-312, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

March 29, 2023

JOHN J. MOLAISON, JR.
JUDGE

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and John J. Molaison, Jr.

AFFIRMED
JJM
SMC
JGG

COUNSEL FOR PLAINTIFF/APPELLANT,
SHMENA THOMPSON
Byron M. Forrest

COUNSEL FOR DEFENDANT/APPELLEE,
DOLLAR UP LA, LLC AND STATE FARM FIRE AND CASUALTY
COMPANY
John E. McAuliffe, Jr.

MOLAISON, J.

Plaintiff/appellant, Shmena Thompson, has appealed the grant of summary

judgment in favor of Dollar Up, LLC (“Dollar Up”) and its insurer, State Farm Fire

and Casualty Company (“State Farm”). For the reasons that follow, we affirm the

judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On July 3, 2020, Ms. Thompson was a patron at Dollar Up, a retail store

located in Metairie. While in the store, she slipped and fell on what she described

as a wet area “about the size of [her] foot.” She “assumed” the substance on the

floor was water since it had been raining that day. Ms. Thompson was helped up

by another patron and proceeded to the register to check out. She informed the

cashier, later identified as Dong Yang, that she had fallen in the store. According

to Ms. Thompson, an unidentified female worker came over and “smeared” the

water on the floor. Once Ms. Thompson was outside of the store, she “googled”

the store and sent a message stating that she had fallen in the store. She received a

response to contact State Farm.

On September 17, 2020, Ms. Thompson filed a petition for damages against

Dollar Up and State Farm alleging that she sustained injuries when she slipped and

fell on a wet floor “located at or near the entrance of the door.” She alleged that

“rainy weather on the day of the accident caused water to begin to pool” on an

aisle in the store. She alleged that the wet floor existed for a period of time

sufficient to give defendant constructive notice of the danger and that defendant

failed to exercise reasonable care to alleviate wet areas and alert customers to the

“constant threat of water that might drip to the floor as a result of other customer’s

activities.” Ms. Thompson alleged that she sustained injuries to her thoracic and

lumbar spine, right shoulder, wrist and knee. Dollar Up and State Farm answered

the petition denying any liability.

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On April 22, 2022, the defendants filed a motion for summary judgment

arguing that Ms. Thompson cannot carry her burden of proof at trial under La. R.S.

9:2800.6, the Louisiana Merchant Liability Statute, because Ms. Thompson cannot

put forth any evidence that Dollar Up had actual or constructive notice of the liquid

on the floor.1 In support of this motion, defendants attached plaintiff’s deposition

in which she testified that she had walked past the location of her fall on three

occasions just prior to the fall and did not notice anything on the floor. Defendants

went on to argue that plaintiff had no information as to how the liquid came to be

on the floor, nor how long it had been on the floor.

Ms. Thompson opposed the motion for summary judgment arguing that she

testified that she believed that “the water was related to the rain that day, possibly

from another customer’s umbrella.” Plaintiff went on to argue that the video of the

fall shows another customer obstructing the view of the floor where the fall

occurred and this supports her “contention that another customer could have

dripped the rainwater onto the floor.” Ms. Thompson argued that although Mr.

Yang testified that the store’s employees “encourage” customers to leave

umbrellas at the front of the store and that employees “regularly” walk and inspect

the store for hazards, Mr. Yang could not specifically testify about any customers

that were asked to leave umbrellas at the front of the store on the day of the fall.

Plaintiff argued that although Mr. Yang testified that he checked the area while

opening the store, he “was unable to provide any further specifics about when he,

or the other employee, inspected the store” prior to plaintiff’s fall.

At the hearing on the motion for summary judgment, held on June 29, 2022,

counsel for plaintiff stated that he should have filed a motion to continue the

hearing on the motion for summary judgment because there is more discovery to

1
Defendants’ brief states: “defendants do not challenge plaintiff’s claim that after her fall, she noticed
clear liquid on the floor.”

22-CA-397 2

do in this case. Specifically, plaintiff’s counsel argued that about five days after

the fall, he sent a letter to State Farm requesting that the surveillance videos for the

entire day be retained. Instead, only about a minute of the videos were retained

that depict plaintiff’s fall. Plaintiff’s counsel stated that he also needed to take the

deposition of the other worker that was in the store on the day of the fall. The trial

judge denied the motion to continue, noting that the case had been filed nearly two

years earlier. At the conclusion of the hearing, the trial judge granted the motion

for summary judgment. A written judgment granting the motion was signed on

June 29, 2022 and written reasons for judgment were signed on July 19, 2022.

This timely appeal followed.

LAW AND DISCUSSION

Denial of Continuance

When a party alleges that discovery is incomplete, a trial court has the

discretion either to hear the summary judgment motion or to grant a continuance to

allow further discovery. Laforge v. Golden Nugget Lake Charles, LLC, 20-110

(La. App. 3 Cir. 11/4/20), 307 So.3d 266, 270. The trial court’s denial of a request

to continue the hearing on a motion for summary judgment when discovery is

alleged to be incomplete is reviewed by the appellate court under the abuse of

discretion standard. Id.

In addressing an allegation that summary judgment was prematurely granted

because adequate discovery had not been completed, four relevant factors to

consider are: (i) whether the party was ready to go to trial, (ii) whether the party

indicated what additional discovery was needed, (iii) whether the party took any

steps to conduct additional discovery during the period between the filing of the

motion and the hearing on it, and (iv) whether the discovery issue was raised in the

trial court before the entry of the summary judgment. Bass P’ship v. Fortmayer,

04-1438 (La. App. 4 Cir. 3/9/05), 899 So.2d 68, 75.

22-CA-397 3

In the instant case, plaintiff was not ready for trial. Plaintiff’s counsel

indicated that further discovery into why the entirety of the videos for the day of

the fall were not preserved was needed. Plaintiff’s counsel further indicated that

he wanted to take the deposition of the other worker that was in the store at the

time of the fall. The discovery issue was raised prior to the ruling on the summary

judgment. However, plaintiff’s counsel did not indicate what, if any, steps had

been taken to pursue further discovery between the time the motion for summary

judgment was filed and the hearing on the motion. As pointed out by the trial

judge, this case had been pending for nearly two years at the time of the hearing on

the motion for summary judgment. Given that there is no indication in the record

as to what, if any, steps were taken by plaintiff’s counsel to conduct any type of

discovery between the time the motion for summary judgment was filed and the

hearing on the motion, we cannot say that the trial judge abused his discretion by

denying the motion to continue the hearing on the motion for summary judgment

to conduct further discovery. Moreover, our jurisprudence has acknowledged that,

despite the contention that further discovery is needed, summary judgment is not

premature when the issue presented is purely a legal one and additional discovery

will not change the result. Laforge, 307 So.3d at 270. In the instant case, the issue

is whether plaintiff can carry her burden of proving that Dollar Up had actual or

constructive knowledge of the wet floor prior to plaintiff’s fall. As will be

discussed infra, plaintiff admitted in her deposition that shortly before the fall, she

had walked in the area where she fell three times and did not notice any wet areas

on the floor. Additional discovery would not change this.

Summary Judgment

After an opportunity for adequate discovery, a motion for 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

22-CA-397 4

to judgment as a matter of law. La. C.C.P. art. 966(A)(3). 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. La. C.C.P. art.

966(D)(1). The burden then shifts to 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. Factual inferences

reasonably drawn from the evidence must be construed in favor of the party

opposing a motion for summary judgment, and all doubt must be resolved in the

opponent’s favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050

(per curiam). In determining whether summary judgment is appropriate, appellate

courts review evidence de novo under the same criteria that govern the trial court’s

determination of whether summary judgment is appropriate. Samaha v. Rau, 07-

1726 (La. 2/26/08), 977 So.2d 880.

A decision as to the propriety of a grant of a motion for summary judgment

must be made with reference to the substantive law applicable to the case. Bach v.

Bd. of River Port Pilot Comm’rs, 15-765 (La. App. 5 Cir. 5/12/16), 193 So.3d 355,

362. Louisiana Revised Statute 9:2800.6 governs merchant liability for slip-and-

fall cases and 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

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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.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that
the condition existed for such a period of time that it would
have been discovered if the merchant had exercised reasonable
care. The presence of an employee of the merchant in the
vicinity in which the condition exists does not, alone, constitute
constructive notice, unless it is shown that the employee knew,
or in the exercise of reasonable care should have known, of the
condition.
The failure to prove any of the requirements enumerated in La. R.S.

9:2800.6 is fatal to a plaintiff’s cause of action. Bryant v. Ray Brandt Dodge, Inc.,

19-464 (La. App. 5 Cir. 3/17/20), 292 So.3d 190, 196. In addition to proving that

the condition presented an unreasonable risk of harm that was reasonably

foreseeable, the plaintiff must also prove that the merchant either created or had

actual or constructive notice of the condition which caused the damage prior to the

occurrence. Id.

In her petition, Ms. Thompson alleged that she slipped and fell on a wet

floor in the store, and that “rainy weather on the day of the accident caused water

to begin to pool” on an aisle in the store. She alleged that the wet floor existed for

a period of time sufficient to give defendant constructive notice of the danger and

that defendant failed to exercise reasonable care to alleviate wet areas and alert

customers to the “constant threat of water that might drip to the floor as a result of

other customers’ activities.”

22-CA-397 6

In her deposition, plaintiff testified that she had been in the store about

thirty-five to forty minutes prior to her fall. During this time, she had “browsed up

and down the aisles.” She testified that she passed the area where she fell three

times prior to falling and did not see anything on the floor. Plaintiff further

testified that the floor was not slippery or “dangerous” before she fell. Ms.

Thompson testified that after she fell, she saw the floor was wet. She estimated the

wet spot to be “a little bigger” than her foot. She did not know how long the floor

had been wet. Ms. Thompson elaborated “it was raining…I assumed it had to be

water.” In response to questioning, she testified that she did not know how the

“wetness” got on the floor, nor how long the water or wetness had been there.

When constructive notice is at issue, the 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 on notice of

its existence. Upton v. Rouse’s Enter., LLC, 15-484 (La. App. 5 Cir. 2/24/16), 186

So.3d 1195, 1200, writ denied, 16-0580 (La. 5/13/16), 191 So.3d 1057.

In the instant case, plaintiff presented no evidence to contradict or otherwise

show that Dollar Up knew or, in the exercise of reasonable care, should have

known of the alleged defect, i.e., the wetness on the floor. Rather, in opposing

defendants’ motion for summary judgment, plaintiff made only conclusory

statements and unsupported allegations. Plaintiff argued that it was raining on and

off before and after the fall, and “circumstantial evidence indicates that rainwater

tracked into the store or dripped by another customer likely caused her fall.”

Plaintiff argues that although Mr. Yang “checked the area while opening the store,

he was unable to provide any further specifics about when he, or the other

employee, inspected the store on that rainy day prior to Plaintiff’s fall.” However,

plaintiff never came forth with any evidence to show what caused the wetness on

the floor or how long this condition existed prior to her fall. Plaintiff passed the

22-CA-397 7

area where she fell three times before the fall and did not notice any wetness on the

floor. Plaintiff specifically testified that the area was not “slippery or dangerous”

before she fell. Speculation or suggestion is not enough to meet the stringent

burden imposed upon a plaintiff by La. R.S. 9:2800.6. Johnson v. Federated Mut.

Ins. Co., 21-242 (La. App. 5 Cir. 6/23/21), 325 So.3d 578, 583.

Ms. Thompson’s failure to produce any evidence that Dollar Up had actual

or constructive notice of the wetness on the floor before the fall occurred is fatal to

her claim, as the “notice” element is necessary to succeed in proving liability under

La. R.S. 9:2800.6. The evidence put forth by defendants, combined with plaintiff’s

failure to produce any evidence that creates a genuine issue of material fact,

indicate that Ms. Thompson will not be able to meet her burden of proof at trial.

As such, the trial court correctly granted defendants’ motion for summary

judgment.

CONCLUSION

Based on the foregoing, after our de novo review of the record, memoranda,

exhibits, and the law, we find no genuine issue of material fact and that Dollar Up

is entitled to judgment as a matter of law. Accordingly, the trial court judgment

granting summary judgment in favor of defendants, Dollar Up, LLC and State

Farm Fire and Casualty Company, dismissing plaintiff, Shmena Thompson’s

claims with prejudice is affirmed.

AFFIRMED

22-CA-397 8

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MARCH 29, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-CA-397
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
BYRON M. FORREST (APPELLANT)

MAILED
JOHN E. MCAULIFFE, JR. (APPELLEE)
MARIANNE S. PENSA (APPELLEE)
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