Sandra Parnell Versus Kai Nealey and Citi Trends, Inc.

SANDRA PARNELL NO. 23-CA-53

VERSUS FIFTH CIRCUIT

KAI NEALEY AND CITI TRENDS, INC. COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 76,21, DIVISION "B"
HONORABLE NGHANA LEWIS, JUDGE PRESIDING

November 08, 2023

MARC E. JOHNSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Stephen J. Windhorst

REVERSED AND REMANDED
MEJ
SMC
SJW

COUNSEL FOR PLAINTIFF/APPELLANT,
SANDRA PARNELL
Michael S. Brandner, Jr.
Scot P. Koloski

COUNSEL FOR DEFENDANT/APPELLEE,
KAI NEALEY AND CITI TRENDS, INC.
Stephanie McLaughlin

JOHNSON, J.

Appellant, Sandra Parnell, seeks review of the 40th Judicial District Court’s

October 14, 2022 judgment granting summary judgment in favor of Defendants,

Kai Nealey and Citi Trends, Inc. (“Citi Trends”). For the following reasons, we

reverse the district court’s judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 20, 2019, Ms. Parnell tripped and fell over a garment rack while

shopping at the Citi Trends store located on West Airline Highway in LaPlace,

Louisiana with her sister and nephew. Ms. Parnell was looking for her sister when

she tripped over a “Z-Rack” across the “main walkway” of the store. She testified

that she was unable to see the sides of the rack as they were obscured by

merchandise. Ms. Parnell received medical treatment for the injuries she sustained

as a result of the accident and filed a petition for damages a year later.

Citi Trends employees and corporate executives testified via deposition.

They explained that employees are trained in ensuring that the store’s aisles and

walkways are free from obstructions. Also, the “Z-Racks” are used to re-stock

showroom racks. Employees are instructed not to leave those racks unattended or

to, at least, stay within 10-15 feet of the “Z-Racks”. The specialty racks are to be

kept in the back store room when not in use.

Defendants filed a motion for summary judgment on July 29, 2022, alleging

that Ms. Parnell could not meet her burden of proof with regards to liability under

La. R.S. 9:2800.6, Louisiana’s Merchant Liability statute. Defendants argued that

the condition in the store caused by the garment rack was “open and obvious”, or it

did not present an unreasonable risk of harm.

The district court held a hearing on the motion on October 7, 2022. On

October 24, 2022, the district court granted Defendant’s motion for summary

judgment and dismissed the matter with prejudice. The court found that “the

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plaintiff did not present any evidence that anyone noticed any unreasonably

dangerous conditions at any time prior to the accident.” The district court also

found that “the Z garment rack was obvious and apparent, [and presented] no

unreasonable risk of harm to a customer exercising reasonable care.” The court

further concluded that Ms. Parnell did not present any evidence that “anyone

noticed any unreasonably dangerous conditions at any time prior to the accident”,

or any testimony that would suggest the Z-Rack had been there for some period of

time.

ASSIGNMENTS OF ERROR

Ms. Parnell contends that the district court erred when it found that she

failed to introduce evidence to support her claims that the “Z-Rack” over which

she tripped presented an unreasonable risk of harm. She also assigns as error the

district court’s finding that she did not prove Defendants had actual or constructive

notice of an unsafe condition – the placement of the “Z-Rack” on its premises - and

that the condition was “open and obvious”. Ms. Parnell further maintains that the

unsafe condition was created by Citi Trends and was reasonably foreseeable, and

Citi Trends did not exercise reasonable care.

In response, Defendants urge that the plaintiff presented no evidence of a

condition that presented an unreasonable risk of harm as required by La. C.C. art.

2317.1 and La. R.S. 9:2800.6. They also counter that the alleged condition was

open and obvious, and that Ms. Parnell has not proven actual or constructive notice

of the condition.

LAW AND DISCUSSION

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. La.

C.C.P. art. 966 A(3). The burden of proof rests with the mover, who can usually

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meet that burden by negating, or proving 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); see also Babin v. Winn-Dixie Louisiana, Inc., 00-78 (La. 6/30/00),

764 So.2d 37, 39-40. The burden is then on the party who bears the burden of

persuasion at trial 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.

This Court reviews the denial of a motion for summary judgment de novo.

Bourgeois v. Allstate Ins. Co., 15-451 (La. App. 5 Cir. 12/23/15), 182 So.3d 1177,

1181. Under this standard, we use the same criteria as the trial court in determining

if summary judgment is appropriate: whether there is a genuine issue as to material

fact and whether the mover is entitled to judgment as a matter of law. Samaha v.

Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 882-83.

Pursuant to La. R.S. 9:2800.6, generally, a defendant/storeowner owes a

duty to a plaintiff to exercise reasonable care to keep its premises in a reasonably

safe condition, free of hazardous conditions. Jones v. Mkt. Basket Stores, Inc., 22-

841(La. 3/17/23), 359 So.3d 452, 462. Louisiana’s Merchant Liability Statute, La.

R.S. § 9:2800.6 provides in 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.

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(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 burden of proof instruction found in [subsection (B)(2) of
the Merchant Liability statute] applies when there is a claim for a fall
due to a condition in or on a merchant's premises. The statute is aimed
at “slip and fall” or “trip and fall” cases. [ . . .] Moreover, if a
customer slips or trips and falls because of the direct and simultaneous
negligence of a store employee, the burden of proof under ordinary
negligence principles is applicable and not the burden of proof under
La. R.S. 9:2800.6.

Littleton v. Wal-Mart Stores, Inc., 99-390 (La. App. 3 Cir. 12/1/99), 747 So.2d

701, 703, writ denied, 00-804 (La. 5/5/00), 761 So.2d 546. (Emphasis in original).

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. Thompson v. Dollar Up LA LLC, 22-

397 (La. App. 5 Cir. 3/29/23), 365 So.3d 149, 153-54, reh'g denied (La. App. 5

Cir. 4/13/23), citing Bryant v. Ray Brandt Dodge, Inc., 19-464 (La. App. 5 Cir.

3/17/20), 292 So.3d 190, 196. 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. Id.

It is evident that for the defendant to have “created” the
hazardous condition [pursuant to La. R.S. 9:2800.6(B)(2)], it must be
“directly responsible” for the plaintiff's injuries. That direct
responsibility can be shown in one of two ways—either via
evidence that the defendant's employees actually created the hazard
(by, for example, spilling crab salad on the floor [. . .]) or evidence
that the defendant was responsible for maintaining the area
where the hazardous condition was manifest[.]

Salzman v. Matherne's Supermarket at Riverlands, L.L.C., 22-404 (La. App. 5 Cir.

6/22/23), 367 So.3d 897, 905-06, reh'g denied (July 13, 2023) (Emphasis in

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Original), citing Deshotel v. Wal-Mart La., L.L.C., 850 F.3d 742, 747-48 (5th Cir.

2017).

Pursuant to La. C.C. art. 2317, we are responsible for damage caused by the

things in our custody. Louisiana Civil Code article 2317.1 states,

The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he
knew or, in the exercise of reasonable care, should have known of the
ruin, vice, or defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care. Nothing in this Article shall
preclude the court from the application of the doctrine of res ipsa
loquitur in an appropriate case.

See also, Babino v. Jefferson Transit, 12-468, (La. App. 5 Cir. 2/21/13), 110 So.3d

1123, 1126.

Under the duty/risk analysis, the plaintiff must prove five
separate elements: (1) the defendant had a duty to conform his
conduct to a specific standard (the duty element); (2) the defendant's
conduct failed to conform to the appropriate standard (the breach
element); (3) the defendant's substandard conduct was a cause-in-fact
of the plaintiff's injuries (the cause-in-fact element); (4) the
defendant's substandard conduct was a legal cause of the plaintiff's
injuries (the scope of duty element); and, (5) proof of actual damages
(the damages element). If the plaintiff fails to prove any one element
by a preponderance of the evidence, the defendant is not liable.

[ . . .]

The existence of a duty is a question of law. The inquiry is
whether the plaintiff has any law (statutory, jurisprudential, or arising
from general principles of fault) to support the claim that the
defendant owed him a duty.

Farrell v. Circle K Stores, Inc., 22-849 (La. 3/17/23), 359 So.3d 467, 473 (internal

citations omitted).

Under the duty/risk analysis, we find that Defendants owed Ms. Parnell a

duty to keep the store’s aisles in a reasonably safe condition, and to either correct

or warn potential customers of the existence of unreasonably dangerous conditions

on the premises. See id. To address Ms. Parnell’s assignments of error, we will

focus our analysis on the second and third factors of the duty/risk analysis.

23-CA-53 5

Breach of Duty

This Court must utilize a risk/utility analysis to determine whether a breach

of that duty occurred.

[The Louisiana Supreme Court] has synthesized the risk/utility
balancing test to a consideration of four pertinent factors:

(1) the utility of the complained-of condition;
(2) the likelihood and magnitude of harm, including the obviousness
and apparentness of the condition;
(3) the cost of preventing the harm; and,
(4) the nature of the plaintiff's activities in terms of social utility or
whether the activities were dangerous by nature.

Farrell, 359 So.3d at 474. “The second factor of the risk/utility balancing test

includes the likelihood and magnitude of harm, which includes the open and

obvious nature of the condition.” Id. “The question of whether a condition is open

and obvious and, thus, not unreasonably dangerous, is an issue of breach, not

duty.” Id. “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. Summary judgment, based on the absence of liability, may be granted upon a

finding that reasonable minds could only agree that the condition was not

unreasonably dangerous; therefore, the defendant did not breach the duty owed. Id.

Upon de novo review, we find that Defendants are not entitled to summary

judgment. “When a customer proves that a foreign substance or object on a store’s

floor presented an unreasonable risk of injury which caused a damaging fall, the

store must exculpate itself from a presumption of negligence.” Kimble v. Wal-Mart

Stores, Inc., 539 So.2d 1212, 1214 (La. 1989), citing Brown v. Winn–Dixie

Louisiana, Inc., 452 So.2d 685, 686 (La. 1984). “[T]he store operator is required to

prove that his employees did not cause the hazard and that he exercised such a

degree of care that he would have known under most circumstances of a hazard

caused by customers.” Id. Ms. Parnell has presented evidence that controverts Citi

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Trends’ claim that the condition was open and obvious – both she and her nephew

testified that the rack was across the aisle and obscured by the clothing surrounding

the rack; and store protocol required that store personnel remain within 10-15 feet

of the Z-Racks while in use on the sales floor, and the Z-Racks should be kept in

the back of the store when not in use to prevent tripping hazards. Also, in the

record, the (albeit poor quality) photograph of the store taken on the day of the

incident, suggests that a rack positioned in the manner in which Ms. Parnell and

her nephew testified would not easily be observable. Thus, there is a question of

material fact regarding whether Citi Trends breached its duty to keep its store in a

reasonably safe condition and free of hazardous conditions.

In Thibodeaux v. Winn-Dixie of Louisiana, Inc., 608 So.2d 673, 675 (La.

App. 3d Cir. 1992), the court found that an empty box a Winn-Dixie employee left

“protruding into the aisle, partially hidden from the view of plaintiff [ . . .] created

a hazard for the unsuspecting shopper.” The Thibodaux court agreed with the trial

court and found Winn-Dixie negligent. Similarly, in this case, Ms. Parnell and her

nephew testified that she tripped on a “Z-Rack” that was obscured from view by

hanging merchandise. Ms. Parnell’s nephew and a store employee rendered

assistance to Ms. Parnell after she fell. Also, the record references an incident

report completed by a store employee documenting Ms. Parnell’s trip and fall

accident.

[A] pedestrian has a duty to see that which should be seen; he
is not required to look for hidden dangers but he is bound to observe
his course to see if his pathway is clear and is held to have seen those
obstructions in his pathway which would be discovered by a
reasonably prudent person exercising ordinary care under the
circumstances.

However, in a self-service store, a multitude of items are
displayed upon shelving along the aisles which entice a customer to
focus his eyes upon the displays rather than on his pathway.

23-CA-53 7

Lofton v. Hayward, 00-2019 (La. App. 4 Cir. 1/9/02), 806 So.2d 877, 882-83, writ

denied, 02-286 (La. 4/12/02). 813 So.2d 405 (citations omitted). Further, a

customer’s duty to keep a proper lookout is diminished when shelved or hanging

merchandise attracts her attention. Id. citing Dupre’ v. Maison Blanche, Inc., 97-

652 (La. App. 1 Cir. 4/8/98), 712 So.2d 567, writ denied sub nom. Dupre’ v.

Maison Blanche, Inc., 98-1239 (La. 6/19/98), 721 So.2d 471. We find that a

reasonable juror could find that the condition encountered by Ms. Parnell was

unreasonably dangerous, and not open and obvious. Thus, summary judgment on

the issue is not warranted at this time. Moreover, the plaintiff’s “knowledge and

appreciation of the hazardous condition” is appropriately considered to determine

comparative fault, but is “irrelevant to Defendants’ entitlement to summary

judgment.” Farrell, 359 So.3d at 478.

Scope of Duty/Actual or Constructive Knowledge of Condition

Regarding the third factor of the duty/risk analysis, both La. C.C. art. 2317.1

and La. R.S. 9:2800.1(C)(1) impose a duty upon a defendant to identify the risk of

harm and a duty to exercise reasonable care in preventing damages. See Bourn v.

Federated Mut. Ins. Co., 54,977 (La. App. 2 Cir. 4/5/23), 361 So.3d 538, 544;

Myers v. Dronet, 01-5 (La. App. 3 Cir. 6/22/01), 801 So.2d 1097, 1108. “A risk

may not be within the scope of a duty where the circumstances of the particular

injury to the plaintiff could not be reasonably foreseen or anticipated, because there

was no ease of association between that risk and the legal duty.” Rando v. Anco

Insulations Inc., 28-1163 (La. 5/22/09); 16 So.3d 1065, 1092. The plaintiff must

prove that the defendant “knew or, in the exercise of reasonable care, should have

known” the thing or condition was defective or hazardous; in other words, the

“actual or constructive knowledge” requirement of those statutes impose upon

owners, custodians, or merchants “a duty to exercise reasonable care in discovering

ruin, vice, or defect[,] or hazardous conditions.” Id. Citi Trends argues that not

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only was the condition Ms. Parnell encountered open and obvious, but she did not

provide evidence that it had actual or constructive knowledge of the condition prior

to the accident, or that an employee created the condition.

However, we find that genuine issues of material fact remain regarding

whether Citi Trends’ employees created the unreasonably dangerous condition in

this case. Because Ms. Parnell has provided evidence that the condition she

encountered was created by the store’s staff, she may not have to prove the

temporal element required under La. C.C. 2317.1 or La. R.S. 9:2800.6(C)(1). See

Thompson, 365 So.3d at 153-54. Citi Trends personnel testified that “Z-Racks”

were only used to restock the permanent racks on the floor of the store, and were to

be stored in the back of the store when not in use. If a customer moved the rack to

an unsafe position, then the customer was only able to do so because an employee

left the rack on the floor unattended, which was against store policy. The fact that

Ms. Parnell cannot prove that the store had actual or constructive knowledge of

the condition presented by the “Z-Rack” for a significant time period before the

accident took place does not bar her potential recovery under the Merchant

Liability Statute. See Salzman, 367 So.3d at 911 (holding that genuine issues of

fact remained regarding whether the merchant’s “failure to successfully correct a

known unsafe condition created the injury-causing condition in this case.”

(Emphasis in Original)).

Because we find that reasonable jurors could disagree on whether the

condition presented by the garment rack was not open and obvious, and the record

could support a finding that the condition was created by a Citi Trends’ employee,

the existence or non-existence of an unreasonably dangerous condition becomes a

question of fact to be decided by the jury. See Farrell, 359 So.3d at 479-80;

Dupre’, supra, 712 So.2d at 571.

23-CA-53 9

DECREE

Considering the foregoing, the district court’s October 14, 2022 judgment

granting Kai Nealey and Citi Trends’ motion for summary judgment is reversed,

and this matter is remanded for further proceedings.

REVERSED AND REMANDED

23-CA-53 10

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.
SCOTT U. SCHLEGEL 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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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
NOVEMBER 8, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-53
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
HONORABLE NGHANA LEWIS (DISTRICT JUDGE)
SCOT P. KOLOSKI (APPELLANT) STEPHANIE MCLAUGHLIN (APPELLEE)

MAILED
MICHAEL S. BRANDNER, JR. (APPELLANT)
ATTORNEY AT LAW
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