Norman Millet and Reva Millet Versus Moran Foods, LLC, D/B/A Save-A-Lot 26367 and Abc Insurance Company

NORMAN MILLET AND REVA MILLET NO. 23-CA-227

VERSUS FIFTH CIRCUIT

MORAN FOODS, LLC, D/B/A SAVE-A-LOT COURT OF APPEAL
#26367 AND ABC INSURANCE COMPANY
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 805-540, DIVISION "G"
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

March 13, 2024

TIMOTHY S. MARCEL
JUDGE

Panel composed of Judges Jude G. Gravois,
John J. Molaison, Jr., and Timothy S. Marcel

AFFIRMED
TSM
JGG
JJM

COUNSEL FOR PLAINTIFF/APPELLANT,
NORMAN MILLET AND REVA MILLET
John W. Redmann
Edward L. Moreno
Travis J. Causey, Jr.
Benjamin B. Perkins

COUNSEL FOR DEFENDANT/APPELLEE,
MORAN FOODS, LLC D/B/A SAVE-A-LOT STORES, LTD. AND OLD
REPUBLIC INSURANCE COMPANY
Isaac H. Soileau, Jr.
Ryan A. Jurkovic

MARCEL, J.

In this case arising from a slip-and-fall at a Save-A-Lot store located at 5003

Lapalco Boulevard, plaintiffs Norman and Reva Millet appeal a December 7, 2022

judgment of the trial court granting a motion for summary judgment filed by

defendant Moran Foods, L.L.C. d/b/a Save-A-Lot #26367 ("SAL") dismissing with

prejudice all of plaintiffs' claims. For the following reasons, we affirm the

judgment of the trial court.

BACKGROUND

In their petition for damages, plaintiffs allege that Mr. Millet was shopping

for food and other items on the premises of the Save-A-Lot store on October 22,

2019 when he slipped and fell on standing water and/or partially melted ice that

had collected in the frozen food aisle of the store. Plaintiffs allege that the water or

ice amounted to a defect on the premises that created an unreasonably dangerous

and/or hazardous condition that caused Mr. Millet's slip-and-fall and resulting

injuries.

Defendant SAL filed an answer denying plaintiffs' allegations and raising

inter alia an open and obvious hazard defense. SAL then filed a motion for

summary judgment in which it argued that plaintiffs could not meet the statutory

requirement for merchant premises liability provided in La. R.S. 9:2800.6(B) or the

essential elements of a standard negligence claim. SAL pointed specifically to the

obvious and apparent nature of the alleged defective condition that was marked by

two yellow warning cones alerting patrons to the hazard.

Defendant's motion for summary judgment was initially denied because

SAL failed to offer, file, or introduce evidence at the hearing. The motion was re-

urged and reset, and at the November 28, 2022 hearing, the trial court considered

properly introduced evidence and testimony, including video surveillance footage

of the accident. After taking the matter under advisement, the trial court granted

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summary judgment in favor of SAL and dismissed plaintiffs' claims with prejudice.

Plaintiffs' timely appeal followed.

On appeal, plaintiffs argue that the trial court erred in its determination that

plaintiffs would be unable to show that the wet floor presented an unreasonably

dangerous condition and erred in its application of the "open and obvious"

doctrine. We consider these assignments of error in our discussion below.

DISCUSSION

Appellate courts review summary judgments de novo using the same criteria

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

appropriate. David v. Dollar Tree Stores, Inc., 19-36, (La. App. 5 Cir. 10/2/19),

282 So.3d 329, 331. The summary judgment procedure is designed to secure the

just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966. 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. Id.

In response to a well-pled motion for summary judgment, 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. 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 to judgment as a matter of law. Id.

In a slip and fall case against a merchant, a plaintiff must prove the essential

elements of a negligence claim in addition to the requirements of the Louisiana's

Merchant Liability Statute, La. R.S. 9:2800.6 which states:

23-CA-227 2

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.
…

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. Bertaut v. Corral Gulfsouth, Inc., 16-93, (La.

App. 5 Cir. 12/21/16), 209 So.3d 352, 356.

Parties in this case focus their arguments on the first element of La. R.S.

9:2800.6(B)(1), whether the wet floor presented an unreasonable risk of harm. It is

undisputed that there was a wet floor or dangerous condition at the time of the

accident. Plaintiffs argue that there is a genuine issue of material fact as to

whether this condition was unreasonable and hazardous. Defendant argues that

they had discovered the dangerous condition alleged to have caused the accident

and warned of its existence with two warning signs, thereby rendering the

condition "open and obvious."

As the Louisiana Supreme Court has recently clarified, the open and obvious

defense is a part of the risk/utility analysis applied in fault-based cases to

determine whether the condition encountered created an unreasonable risk of harm.

23-CA-227 3

Farrell v. Circle K Stores, Inc., 22-00849, (La. 3/17/23), 359 So.3d 467, 479. It is

not a “doctrine.” Id. The Court went on to state:

There is, with limited exception, the duty to exercise reasonable care
and to keep that which is within our custody free from an
unreasonable risk of harm. If the application of the risk/utility
balancing test results in a determination that the complained of hazard
is not an unreasonably dangerous condition, a defendant is not liable
because there was no duty breached.

Id. at 478.

The Supreme Court therefore frames the "open and obvious" defense to an

unreasonably dangerous condition as an issue of breach, not of duty. Id. at 480.

Engaging in the risk/utility balancing test or further discussion of the open

and obvious defense in this case is unnecessary here. We find the evidence

presented by SAL, including the video surveillance footage of the incident, will be

insufficient for plaintiffs to meet their burden to demonstrate SAL’s failure to

exercise reasonable care under the circumstances as required under La. R.S.

9:2800.6(B)(3). See Schroeder v. Hanover Ins. Co., 18-294, (La. App. 3 Cir.

9/19/18), 255 So.3d 1123, 1127.

Merchants are required to exercise reasonable care to protect those who

enter the establishment, to keep the premises safe from unreasonable risks of harm,

and to warn persons of known dangers. Bertaut, 209 So.3d at 357. Whether

protective measures in a particular business establishment are reasonable must be

determined in light of the circumstances of the case, considering the risk involved,

the merchant's type and volume of merchandise, the type of display, the floor space

utilized for customer service, the volume of business, the time of day, the section

of the business, and other considerations. Id.

The evidence in the record indicates that SAL was aware of a leaking cooler

that caused the floor of the aisle where Mr. Millet fell to become wet. In response

to this leak, defendant placed two yellow warning cones in the aisle next to the

23-CA-227 4

leaking frozen food cooler to warn shoppers of the hazard. SAL store manager

Ranada Grayer testified in her deposition that the two caution cones were placed to

indicate a wet floor near the leaking cooler and that they would remain there until

the repairman arrived to fix the leak. She also testified that they used two caution

cones instead of one because the customers sometimes ignore the caution cones.

The video surveillance footage shows two approximately 2.5 feet tall yellow

warning cones placed close to the center of the aisle next to the frozen food cooler.

Though plaintiffs claim there is a genuine issue of material fact as to whether Mr.

Millet saw the wet floor signs before he fell, in the video footage, Mr. Millet can

be seen maneuvering his shopping cart around the cones immediately prior to his

fall. Such a maneuvering action is inconsistent with Mr. Millet’s claim that he did

not see the warning cones. The evidence introduced indicates that SAL took

reasonable precautions to warn patrons of the potentially hazardous wet floor.

On de novo review, and in light of the above evidence, we find that

defendant SAL has shown that plaintiffs will be unable to meet their burden to

show that SAL failed to exercise reasonable care under the circumstances.

Accordingly, we find that the trial court was correct in granting SAL’s motion for

summary judgment. The judgment of the trial court is affirmed.

AFFIRMED

23-CA-227 5

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
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

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 13, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-227
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)
BENJAMIN B. PERKINS (APPELLANT) EDWARD L. MORENO (APPELLANT) KELLY S. RIZZO (APPELLANT)
ISAAC H. SOILEAU, JR. (APPELLEE) RYAN A. JURKOVIC (APPELLEE)

MAILED
CHRISTIAN A. GALLEGUILLOS
(APPELLANT)
JOHN W. REDMANN (APPELLANT)
LISA Z. GILMORE (APPELLANT)
TRAVIS J. CAUSEY, JR. (APPELLANT)
ATTORNEYS AT LAW
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