Melinda Hatzgionidis Versus Dg Louisiana, LLC and Xyz Insurance Company

MELINDA HATZGIONIDIS NO. 24-CA-224

VERSUS FIFTH CIRCUIT

DG LOUISIANA, LLC AND XYZ INSURANCE COURT OF APPEAL
COMPANY
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 838-312, DIVISION "A"
HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

November 27, 2024

MARC E. JOHNSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Marc E. Johnson

REVERSED
MEJ
SMC
JGG

COUNSEL FOR PLAINTIFF/APPELLANT,
MELINDA HATZGIONIDIS
Cesar R. Burgos
Robert J. Daigre
George M. McGregor
Leila M. Bonilla
William R. Penton, III

COUNSEL FOR DEFENDANT/APPELLEE,
DG LOUISIANA, LLC
Trevor C. Davies
Shannon O. Harrison
Michael L. Ballero

JOHNSON, J.

Appellant/Plaintiff, Melinda Hatzgiondis, appeals the 24th Judicial District

Court’s February 6, 2024 judgment granting Appellee/Defendant’s, DG Louisiana,

LLC (“DG Louisiana”), motion for summary judgment. For the following reasons,

we reverse the trial court’s judgment and remand the matter for further

proceedings.

FACTS AND PROCEDURAL HISTORY

On March 6, 2022, Plaintiff went to the Dollar General store located on

Behrman Highway in Jefferson Parish to purchase cleaning supplies. She stood on

the lower shelf to reach up to a shelf above her head to get a spray bottle of “DG

Home Cleaner with Beach.” After Plaintiff grabbed the bottle, the bottle leaked

fluid onto Plaintiff’s eyes, face, and clothes. According to Plaintiff, she thought

that the container was in good condition and it appeared to be full, but the bottle

was “broken at the top,” though the top was firmly screwed on. Her daughter and

her daughter’s boyfriend took pictures of the bottle and the area where the incident

occurred.

Plaintiff testified that she became disoriented after the cleaner spilled on her

face and clothes. She then dropped the bottle into the shopping basket she was

using, or onto the floor.

In March 2023, Plaintiff timely filed a petition for damages against DG

Louisiana, LLC and its then unknown insurer, alleging that DG Louisiana “knew,

or, in the exercise or reasonable care, should have known, that the cap on the bottle

was broken and/or defective and therefore presented an unreasonably dangerous

condition.” She alleged that she sustained damages in excess of $10,000 and

reserved her right to a trial by jury.

A month later, DG Louisiana filed an answer with jury demand, denied all of

Plaintiff’s allegations, and averred that it is self-insured with limits far in excess of

24-CA-224 1

Plaintiff’s claims. Further, DG Louisiana countered that the accident was caused

solely and proximately by the fault and/or negligence of Plaintiff, as she failed to

exercise reasonable care and caution under the circumstances and failed to observe

an open and obvious condition. DG Louisiana also averred that the incident was

caused by a person or persons over which it has no legal responsibility or control,

Plaintiff failed to mitigate her damages, and Plaintiff’s injuries were pre-existing

and completely unrelated to the alleged accident.

DG Louisiana filed a motion for summary judgment in October 2023 and

attached Plaintiff’s petition and the depositions of Plaintiff and her daughter,

Alexis W. Hatzgionidis, to it. DG Louisiana argued that, because Plaintiff could

not satisfy the elements of proof required to sustain a claim against Defendant

under La. R.S. 9:2800.6, it was entitled to summary judgment in its favor as a

matter of law.1

Plaintiff filed a memorandum in opposition and attached to it the pictures

her daughter and her daughter’s boyfriend took after the accident. Plaintiff argued

that La. R.S. 9:2800.6 applies to slip and fall or falling merchandise cases, but it

does not apply in this case, because the accident was caused by a broken bottle that

was manufactured and sold by Dollar General. Plaintiff alleged that DG Louisiana

committed negligence by offering the defective bottle for sale, and the case sounds

in products liability law under the Louisiana Products Liability Act (“LPLA”),

negligence (“simple duty/risk analysis”), and redhibition, citing Burke v. Safeway

Stores, Inc., 554 So.2d 184 (La. App. 2d Cir. 1989).

At the hearing on the motion for summary judgment, Plaintiff argued that

she was “still not quite ready,” and she recently propounded discovery regarding

1
Noteworthy is the fact that DG Louisiana’s motion for summary judgment only asserted that
“Plaintiff cannot satisfy the elements of proof required to sustain a claim against Defendant
for falling merchandise under La. R.S. 9:2800.6, the Louisiana Merchant Liability Statute,”
and did not seek summary judgment on any other claims Plaintiff may have validly
asserted in her petition for damages.

24-CA-224 2

the manufacture and possible claims under the LPLA on summary judgment. She

also argued that she needed additional time for discovery with regard to the

alternate theories of liability. DG Louisiana responded that all of Plaintiff’s

photographs were taken after the bottle hit the floor, and she had no evidence to

support her allegation that the bottle was defective when it left the warehouse, as

required by the LPLA, or to support her claims under theories of negligence or

premises liability (falling merchandise). Further, it distinguished Burke, supra, as a

case where the exploding bottle of ginger ale was proof of a redhibitory defect

because the top was on the bottle of ginger ale when it exploded. In this case, DG

Louisiana maintained that the bottle top was either loosened or broken prior to

Plaintiff reaching to retrieve it from the top shelf.

At the end of the hearing, the court agreed with DG Louisiana and found that

the cause-in-fact of the accident was Plaintiff “not requesting help and pulling the

bottle down without knowing if the cap was broken or not.” The court granted

summary judgment in favor of DG Louisiana and dismissed Plaintiff’s claims

against all parties with prejudice. This timely appeal followed.

ASSIGNMENTS OF ERROR

Plaintiff argues that the trial court erred when it dismissed her case based on

the defense’s argument that La R.S. 9:2800.6 regarding “falling merchandise” does

not apply in this case because she also presented three alternative theories of

recovery. She further urges that DG Louisiana caused the accident by placing a

broken bottle of cleaner for sale in its store, and her claims remain viable under the

LPLA, redhibition statutes, and general negligence law.

DG Louisiana counters that the court did not err in applying the falling

merchandise law in this case, as Plaintiff caused the bottle and its contents to fall,

along with her subsequent injuries. Further, DG Louisiana maintains that

Plaintiff’s claims still fail under other theories of liability. It asserts that under the

24-CA-224 3

LPLA and redhibition law, Plaintiff must provide evidence of either a

manufacturing defect or a defect that existed at the time it left the manufacturer’s

control. It also points out that under a general duty-risk analysis, Plaintiff cannot

prove that substandard conduct by DG Louisiana, as opposed to the actions of

another patron, caused her injuries, or that DG Louisiana had actual or constructive

knowledge of the defect. DG Louisiana contends that, no matter the theory of

liability, Plaintiff “lacks critical evidence” to prove her case.

LAW AND DISCUSSION

The summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of every action and is favored. La. C.C.P. art.

966(A)(2). Appellate courts review summary judgments de novo under the same

criteria that govern the trial court’s consideration of whether summary judgment is

appropriate. Caminita for & on Behalf of Caminita v. Roman Cath. Church of

Archdiocese of New Orleans, 20-54 (La. App. 5 Cir. 7/8/20), 299 So.3d 1269,

1271. The initial burden of proof is with the mover to show that no genuine issue

of material fact exists. If the moving party will not bear the burden of proof at trial,

the moving party must only point out that there is an absence of factual support for

one or more elements essential to the adverse party's claim, action, or defense.

Romero v. Wal-Mart, Inc., 23-518 (La. App. 5 Cir. 5/29/24), 388 So.3d 1269,

1272, writ denied, 24-00844 (La. 10/15/24). Whether a particular fact in dispute is

material for purposes of summary judgment can only be determined in light of the

substantive law applicable to the case. Caminita, 299 So.3d at 1272.

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). “[I]f 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

24-CA-224 4

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 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.” Thi Ngo v. Walmart Inc., 20-71 (La. App. 5 Cir. 10/5/20), 304 So.3d 593,

594, writ denied, 20-01279 (La. 1/12/21), 308 So.3d 709.

A defendant’s motion for summary judgment may be filed at any time after

the answer has been filed. La. C.C.P. art. 966(A)(1). The trial court has the

discretion to render summary judgment, if appropriate, or to allow further

discovery. Musa v. Litton-Avondale Indus., Inc., 10-627 (La. App. 5 Cir. 3/29/11),

63 So.3d 243, 251, writ denied, 11-1256 (La. 9/23/11), 69 So.3d 1163. However,

there is no absolute right to delay action on a motion for summary judgment until

discovery is complete. Id.

Whether a claim arises in negligence under La. C.C. art. 2315 or in premises

liability [falling merchandise] under La. C.C. art. 2317.1, the traditional duty/risk

analysis is the same. Farrell v. Circle K Stores, Inc., 22-00849 (La. 3/17/23), 359

So.3d 467, 473. And now, with La. C.C. art. 2317.1’s requirement of actual or

constructive knowledge of a defect, the result under either should be the same. Id.

Plaintiff argues that, in her petition she pled, and in her deposition she

testified, to sufficient facts to allege she suffered compensable damages under

alternate theories of liability. We agree. It is well-established that Louisiana is a

fact pleading state. La. C.C.P. art. 862; Brown v. RLC Trucking LLC, 24-431 (La.

App. 5 Cir. 9/20/24), 2024 WL 4249454 at *3. The party must set forth facts

supporting the cause of action, but is not required to assert all theories of recovery.

24-CA-224 5

Id. As long as the facts constituting a claim are alleged, the party may be granted

any relief to which he is entitled under the pleadings and the evidence. Id.

In the instant case, Plaintiff avers that she reached up for a bottle of DG

Home Cleaner with Bleach from a shelf above her head and was startled by the

falling liquid that splashed onto her face and clothes, and got into her eyes.

Plaintiff testified that, from her vantage point, she had no reason to suspect that the

structure of the bottle was compromised. Plaintiff has presented testimony and

pictures that are competent evidence to establish that bleach spilled onto her before

the bottle hit the shopping cart or the floor. The store maintains that another

customer dropped the bottle and that is why the lid allowed cleaner to escape, but

Plaintiff argues that the spray bottle may have been defective as defined by the

LPLA, La. R.S. 9:2800.51, et seq.

Further, the trial judge chose to credit DG Louisiana’s estimation of why the

bleach cleaner container spilled onto Plaintiff, but at the summary judgment stage,

the Court “must draw those inferences from the undisputed facts which are most

favorable to the party opposing the motion.” Islam v. Walmart, Inc., 21-629 (La.

App. 5 Cir. 6/8/22), 343 So.3d 883, 891, writ denied, 22-01053 (La. 10/12/22), 348

So.3d 70, citing Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755

So.2d 226, 235-36. Although inference of the existence of a vice or defect in a

product is not allowed merely on the basis of the fact that an accident occurs, a

review of the jurisprudence shows that, in product liability cases, both plaintiffs

and defendants may choose to use expert witnesses, depending on the

characteristics of the allegedly defective product and their burdens of proof, to

establish the presence of such a vice or defect. See Muller v. Carrier Corp., 07-770

(La. App. 5 Cir. 4/15/08), 984 So.2d 883, 885-86, 886-87. Whether the bottle was

defective when it left the manufacturer or whether another person was responsible

24-CA-224 6

for compromising the integrity of the bottle once it reached the store are genuine

issues of material fact at this point in the litigation.

Furthermore, the parties must be able to conduct “adequate discovery” and

be given a fair opportunity to present their claims. La. C.C.P. art. 966(A)(3); Hill v.

Hobby Lobby Stores, Inc., 19-89 (La. App. 5 Cir. 10/2/19), 282 So.3d 333, 336.

An inspection of the record shows that the district court did not set discovery

deadlines or a trial date for this matter. DG Louisiana filed the motion for summary

judgment seven months after the petition was filed. Less than a year transpired

between the filing of the petition and the grant of summary judgment. Therefore,

we find that the district court abused its discretion in granting summary judgment

in favor of DG Louisiana at this stage of the litigation without allowing Plaintiff

time to conduct additional discovery. See Simon v. Belaire, 11-442 (La. App. 3 Cir.

10/5/11), 74 So.3d 1250, 1252, writ denied, 11-2454 (La. 2/3/12), 79 So.3d 1027

(finding summary judgment granted before expiration of discovery deadlines was

granted prematurely).

DECREE

Considering the foregoing, on de novo review, we find the district court

erred in granting summary judgment in favor of DG Louisiana and dismissing

Plaintiff’s petition at this time. The judgment of the district court is reversed, and

the matter is remanded for further proceedings consistent with this opinion.

REVERSED

24-CA-224 7

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
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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
NOVEMBER 27, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-224
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE)
GEORGE M. MCGREGOR (APPELLANT) ROBERT J. DAIGRE (APPELLANT) WILLIAM R. PENTON, III (APPELLANT)
SHANNON O. HARRISON (APPELLEE) TREVOR C. DAVIES (APPELLEE)

MAILED
MICHAEL L. BALLERO (APPELLEE) CESAR R. BURGOS (APPELLANT)
ATTORNEY AT LAW LEILA M. BONILLA (APPELLANT)
1340 POYDRAS STREET ATTORNEYS AT LAW
SUITE 2000 3535 CANAL STREET
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NEW ORLEANS, LA 70119