William Boyd Matlock v. Brookshire Grocery Company

Judgment rendered November 20, 2019.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,069-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

WILLIAM BOYD MATLOCK Plaintiff-Appellant

versus

BROOKSHIRE GROCERY Defendant-Appellee
COMPANY

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2018-2183

Honorable Wilson Rambo, Judge

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ANTHONY J. BRUSCATO Counsel for Appellant

HUDSON, POTTS & BERNSTEIN Counsel for Appellee
By: Donald H. Zeigler, III

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Before PITMAN, GARRETT, and STEPHENS, JJ.

STEPHENS, J.

William Boyd Matlock appeals a judgment of the Fourth Judicial

District Court, Parish of Ouachita, State of Louisiana, granting a motion for

summary judgment by Brookshire Grocery Company and dismissing

Matlock’s claim with prejudice. For the following reasons, we affirm the

judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

This matter arises out of injuries plaintiff, William Boyd Matlock,

sustained on September 3, 2016, when he slipped and fell in the produce

section of a Super 1 grocery store (the “store”), operated by defendant,

Brookshire Grocery Company (“Brookshire”), in Monroe, Louisiana.

Matlock was taken from the store by ambulance to St. Francis Medical

Center for neck, shoulder, and knee pain, and numbness in the tips of his

fingers and toes. He subsequently received additional treatment at Louisiana

Pain Care and North Louisiana Orthopedic and Sports Medicine Clinic. On

November 10, 2016, Matlock filed a petition for damages against

Brookshire.1 Following discovery and the taking of depositions, Brookshire

filed a motion for summary judgment on December 19, 2018.

Brookshire argued in its memorandum in support of the motion that

Matlock would not be able to prove an essential element of its claim against

Brookshire—that Brookshire either created a condition that presented an

unreasonable risk of harm or had actual or constructive notice of such a

condition prior to the incident. Brookshire submitted an incident report

1
Matlock’s petition was originally filed in Monroe City Court but was
subsequently transferred to the Fourth Judicial District Court after his medical expenses
exceeded $24,000.

completed by the store’s assistant manager, Chris Baker. The report states

Matlock fell near the watermelon bins, where a “milky/clear” puddle of

watermelon juice was standing on the floor, roughly 18 inches in diameter.

The report further indicated there were two “wet floor signs” placed in the

area at the time of Matlock’s fall. Attached to the report were photographs

of the puddle taken immediately after the incident.

Brookshire also submitted affidavits of four store employees,

including Baker, and the produce manager, Stewart Bodie. All four

employees testified they were on duty when Matlock fell but did not witness

the incident, place any liquid substance on the floor that caused Matlock to

slip, or have any knowledge of the substance’s existence on the floor prior to

the incident. Baker further testified he had visited other grocery stores in the

Monroe area and photographed their watermelon displays. Those

photographs were attached to Baker’s affidavit along with a photograph of

the watermelon display that was in place in the store when the incident

occurred. 2 Additionally, store employees Derrick Morrison and Patrick

Reeves testified they were in the area 2 and 22 minutes, respectively, prior to

Matlock’s fall, at which times there was no watermelon juice or other liquid

substance on the floor where Matlock would later fall.

In further support of its motion, Brookshire submitted the deposition

of Matlock, wherein he testified that prior to his fall, he did not see the

puddle on the floor or any buggy marks or tracks or footprints through the

liquid. Matlock stated the liquid probably covered “about a two- or three-

2
The photographs purportedly taken by Baker at other Monroe area grocery
stores were subsequently excluded from evidence following a motion to strike filed by
Matlock; however, they were proffered by Brookshire and are included in the record on
appeal.
2

foot little area.” He further testified that other than having overheard an

employee state the liquid appeared to be watermelon juice, he did not know

where it came from. Matlock testified, “[the liquid] seemed like it must not

have been there too long ahead . . . and if it’d been there very long, I

probably would’ve seen it.” He stated while “wet floor” cones appear

“everywhere in the store,” there was not one at the spot of his fall; however,

after falling, while still lying on the floor, he noticed a cone he had not seen

before, which was located two or three feet away.

In opposition to Brookshire’s motion, Matlock argued there existed

genuine issues of material fact regarding whether Brookshire knew of the

risk of leaking watermelons and failed to prevent it by inspecting the

watermelons or placing an absorbent material beneath the bins and regarding

how long the watermelon juice was on the floor before Matlock slipped in it.

In support of his position, Matlock submitted photographs from the scene,

the same ones attached to the incident report, and the surveillance video

from the store showing the area in which the accident occurred. The video

includes footage from the produce section of the store and shows the

watermelons were displayed in a large cardboard bin that was placed on

wooden pallets. While the view of Matlock’s actual fall is obstructed by

produce containers, the footage shows the following notable activity:

2:22 p.m. A female shopper traverses back and forth over the
incident site several times.

2:25 p.m. A male shopper traverses the incident site.

2:28 p.m. Another female shopper traverses the incident site.

2:28 p.m. A store employee enters the area.

2:36 p.m. Another female shopper traverses the incident site.

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2:44 p.m. A small female child traverses the incident site and back
over again.

2:48 p.m. A store employee enters the area.

2:50 p.m. Matlock slips and falls.

Additionally, in further support of his argument, Matlock relied on

Baker’s deposition, which is referenced throughout his memorandum in

opposition as “P3: Baker Depo.” A review of the record shows that during

the hearing on the motion, Baker’s deposition was extensively referenced

and discussed by Matlock and Brookshire, who both evidently believed that

the deposition had been properly attached to Matlock’s opposition and made

a part of the trial court record. However, it was subsequently discovered

Baker’s deposition was not contained in either the trial court or appellate

records. Matlock filed a motion to supplement the record, which was

ultimately granted by the trial court. Accordingly, the record on appeal was

supplemented on October 2, 2019, with Baker’s deposition.3

In his deposition, Baker noted the store displayed its watermelons in

large cardboard bins that were set atop wooden pallets on the floor of the

produce section. Most of the shipments of watermelons came from either

3
On October 8, 2019, Brookshire, having opposed Matlock’s motion to
supplement the record, filed an answer to appeal asserting that while the trial court was
correct in granting its motion for summary judgment, it erred both in considering Baker’s
deposition and in supplementing the record with it. An appellee who seeks to have a
judgment “modified, revised, or reversed in part” or to be awarded damages against the
appellant must file an answer to the appeal and set out the relief sought “not later than
fifteen days after the return day or the lodging of the record whichever is later.” La.
C.C.P. art. 2133(A). Here, the return date was May 18, 2019, and the two-volume record
was lodged in this court on May 30, 2019. Therefore, answer to appeal by Brookshire
had to be filed no later than 15 days after May 30, 2019. However, Brookshire asserts the
15-day period to file an answer should commence on the date the record was
supplemented, rather than lodged—October 2, 2019. Supplementations to the appellate
record are common and do not affect the date of lodging; otherwise, the time for
answering would virtually be open-ended. Accordingly, Brookshire’s answer filed on
October 8, 2019, was untimely and need not be considered. Moreover, considering the
final determination, the answer is moot.

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local vendors or from Brookshire’s warehouse in Tyler, Texas. Baker

believed the watermelons were delivered to the warehouse by the vendors in

the same cardboard bin that the store would later receive and place on

display in the produce section. He testified he was unsure whether the

watermelons, once received from the vendor, were unloaded, inspected, and

then returned to the bins, but he assumed they were not. Upon delivery to

the store, the watermelon bins were placed in the back room. Baker

explained that how long the bins would stay in the back room before being

moved to the floor of the produce section depended on how large a shipment

was received and how quickly the watermelons on display were being sold.

Baker confirmed the problem of a leaking watermelon developed on

occasion and testified there was no way to determine whether a weak or

leaky watermelon was located in the bin other than the appearance of liquid

on the floor or the presence of gnats, which he explained were attracted to

any kind of bad fruit or vegetable. He stated when the watermelons did leak,

“sometimes it’s a slow leak, and sometimes it’s not.”

Baker confirmed he was at the scene following Matlock’s fall,

completed the incident report, and took the photographs that were attached

to the report. Baker stated he had reviewed the surveillance footage and

testified the video shows that following the incident, store employees dug

through the bin and found the leaky watermelon and took it to the back

room. He stated the leaky watermelon could be seen in the video and

testified it looked like a deflated football.

Baker further testified there are always yellow warning cones present

in the produce section regardless of whether the floor is actually wet in order

to encourage people to be careful because the produce section has a higher
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risk than other areas of the store of something being on the floor. Likewise,

Baker stated the store has employees monitoring the floor of the produce

section all day long. He stated they are always on the lookout for leakage on

the floor from watermelons or any other source.

Following a hearing on Brookshire’s motion for summary judgment,

the trial court took the matter under advisement in order to review the

surveillance video. Subsequently, without assigning reasons, the trial court

rendered judgment in favor of Brookshire, granting its motion for summary

judgment and dismissing Matlock’s claim with prejudice. This appeal by

Matlock ensued.

DISCUSSION

On appeal, Matlock asserts in his sole assignment of error that the trial

court erred in granting summary judgment in favor of Brookshire. He

claims the trial court erred for either or both of two reasons: (1) he proved

the actions of store employees resulted in the creation of the puddle, store

employees knew there was a risk of a puddle, and store employees took no

steps to eliminate or reduce the risk; and, (2) he provided circumstantial

evidence the puddle had taken an extended period of time to form, but store

employees failed to notice and eliminate the puddle. We disagree.

Appellate courts review motions for summary judgment de novo,

using the same criteria that govern the trial court’s consideration of whether

summary judgment is appropriate. Peironnet v. Matador Res. Co., 2012-

2292 (La. 6/28/13), 144 So. 3d 791; Bank of Am., N.A. v. Green, 52,044 (La.

App. 2 Cir. 5/23/18), 249 So. 3d 219. Summary judgment is favored by law

and provides a vehicle by which the just, speedy, and inexpensive

determination of an action may be achieved. La. C.C.P. art. 966(A)(2). We
6

view the record and all reasonable inferences to be drawn from it in the light

most favorable to the nonmoving party. Hines v. Garrett, 2004-0806 (La.

6/25/04), 876 So. 2d 764. A motion for summary judgment shall be granted

if the motion, memorandum, and supporting documents show there is no

genuine issue as to material fact and the mover is entitled to judgment as a

matter of law. La. C.C.P. art. 966(A)(3). Louisiana C.C.P. art. 966(D)(1)

provides:

The burden of proof rests with the mover. Nevertheless, 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. 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.

A genuine issue is one about which reasonable persons could disagree.

Hines, supra; Franklin v. Dick, 51,479 (La. App. 2 Cir. 6/21/17), 224 So. 3d

1130. A material fact is one that potentially ensures or precludes recovery,

affects the ultimate success of the litigant, or determines the outcome of the

dispute. Hines, supra; Franklin, supra. When considering a motion for

summary judgment, it is improper to weigh the evidence or determine the

truth of the matter; rather, the trial court is to determine only whether there is

a genuine issue of fact for trial. Franklin, supra.

The imposition of tort liability on a merchant for a patron’s injuries

resulting from an accident is governed by La. R.S. 9:2800.6, which 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
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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.

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.

(2) “Merchant” means one whose business is to sell goods,
foods, wares, or merchandise at a fixed place of business[.]

Plaintiffs who slip and fall in merchants’ premises bear a heavy burden of

proof. Failure by a plaintiff to prove any of the three required elements in

La. R.S. 9:2800.6(B) is fatal to the plaintiff’s case. Gregory v. Brookshire

Grocery Co., 45,070 (La. App. 2 Cir. 4/21/10), 35 So. 3d 458.

Matlock asserts there is a genuine issue of fact as to whether store

employees negligently created an unreasonably hazardous condition and

whether store employees had constructive notice of the existence of the

specific puddle in which he slipped. First, relying exclusively on Baker’s
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deposition, Matlock argues Brookshire’s procedures for purchasing, storing,

inspecting, and displaying watermelons resulted in the potential for

watermelon juice to leak onto the floor and created a hazardous condition for

customers; therefore, Brookshire undeniably created the puddle in which

Matlock slipped. Matlock asserts the evidence supports Brookshire had

knowledge that leaking watermelon juice was a recurrent and chronic

problem, yet Brookshire failed to inspect the watermelons prior to displaying

them and periodically thereafter, and it also failed to place an absorbent

material beneath the watermelon bin. He argues that accordingly, a

reasonable fact finder could conclude the store created the hazardous

condition by failing to eliminate or reduce the risk of watermelon juice

leaking into the aisle.

This argument blurs the lines of the elements of proof required by La.

R.S. 9:2800.6. Matlock’s assertions regarding Brookshire’s creation of the

puddle actually address the reasonable care element of subsection B(3).

Matlock’s argument suggests a merchant’s failure to exercise reasonable

care is the equivalent of a merchant creating a dangerous condition.

However, such an interpretation would nullify subsection B(3) of the statute.

A similar argument was rejected by the court in Ross v. Schwegmann

Giant Super Markets, Inc., 1998-1036 (La. App. 1 Cir. 5/14/99), 734 So. 2d

910, writ denied, 1999-1741 (La. 10/1/99), 748 So. 2d 444. There, the

plaintiff slipped and fell after stepping on a small amount of crab salad on

the floor from a nearby self-serving sampling station and argued the store

failed to exercise reasonable care in creating the hazardous condition where

it was known that customers who sampled the salad would spill or drop it on

the floor. The evidence did not show how the salad came to be on the floor
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or how long it had been there. In affirming summary judgment in favor of

the store, the court noted there was no evidence the crab salad was on the

floor due to an act by a store employee and there was nothing in the record

that could establish the store had any notice of the salad on the floor; thus

there was no issue of fact that the store had either created or had actual or

constructive notice of the salad on the floor.

Here, like the plaintiff in Ross v. Schwegmann, supra, Matlock has

simply failed to present any factual support for his speculation that

Brookshire’s employees or methods were responsible for creating the puddle

of watermelon juice Matlock slipped in. Matlock offers no evidence

remotely supporting the notion that but for Brookshire’s procedure for

purchasing, storing, inspecting, and displaying the watermelons, the puddle

of watermelon juice on which he slipped would not have been created.

Second, Matlock argues the store employees had constructive notice

of the existence of the specific puddle in which he slipped. While he

concedes there is no direct evidence as to how long the puddle of

watermelon juice took to form, Matlock claims the circumstantial evidence

supports the conclusion the puddle formed gradually, not abruptly. Matlock

asserts the fact finder could, therefore, properly infer the watermelon juice

had been dripping for a substantial period of time prior to Matlock’s injury,

and the store employees, in the exercise of reasonable care, should have

noticed the juice and eliminated the hazard before a puddle formed. In

support of his argument, Matlock points to the condition of the watermelon

itself, which Baker testified looked like a “deflated football.” Matlock

suggests that given the severely deteriorated condition of the watermelon, it

is highly probable the watermelon deteriorated for hours or days. Matlock
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also notes the size of the puddle was reported to be 18-36 inches in width

and claims a puddle of that size takes considerable time to form.

In White v. Wal-Mart Stores, Inc., 1997-0393 (La. 9/9/97), 699 So. 2d

1081, the Louisiana Supreme Court reversed the court of appeal and

affirmed the district court’s grant of summary judgment in favor of Wal-

Mart. In doing so, the court considered the idea of constructive notice and

determined:

The definition is likewise clear and unambiguous. There is a
temporal element included: “such a period of time . . . [.]” The
statute does not allow for the inference of constructive notice
absent some showing of this temporal element. The claimant
must make a positive showing of the existence of the condition
prior to the fall. A defendant merchant does not have to make a
positive showing of the absence of the existence of the
condition prior to the fall. Notwithstanding that such would
require proving a negative, the statute simply does not provide
for a shifting of the burden.

Though there is no bright line time period, a claimant must
show that “the condition existed for such a period of time . . .
[.]” Whether the period of time is sufficiently lengthy that a
merchant should have discovered the condition is necessarily a
fact question; however, there remains the prerequisite showing
of some time period. A claimant who simply shows that 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 as mandated by the
statute. Though the time period need not be specific in minutes
or hours, constructive notice requires that the claimant prove
the condition existed for some time period prior to the fall.
This is not an impossible burden. (Footnotes omitted.)

Id. at 1084-85.

Here, Matlock fails to present any evidence, but instead offers

speculative argument that does not consist of any facts to create a positive

showing that the condition existed for a period of time prior to his fall.

While Matlock relied heavily on Baker’s testimony in an attempt to validate

his argument that Brookshire was responsible for creating the puddle of

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watermelon juice, he ignores Baker’s testimony that the employees assigned

to the produce section of the store were vigilant about inspecting the floor

for hazards, specifically leakage from the watermelon bins. Likewise,

Matlock fails to acknowledge Baker’s testimony that based on his

experience, when watermelons leaked, “sometimes it’s a slow leak, and

sometimes it’s not.” Matlock presented no evidence establishing the

particular puddle of watermelon juice causing his fall was formed slowly,

over a period time, or existed for any period of time prior to his fall.

Furthermore, while there is no provision in La. R.S. 9:2800.6 which

would require the shifting of the burden to the merchant to disprove its

culpability, Brookshire presents evidence undermining Matlock’s

constructive notice claim. Photographs taken of the area following the

accident do not show footprints or tire marks from shopping cart wheels.

Store employees testified they had inspected the area shortly prior to the

incident and found it to be free of watermelon juice. While these two

employees did not traverse the actual incident site, it is evident from the

surveillance footage that their path would have provided a clear view of the

spot where Matlock would later fall. Brookshire further points to the

surveillance footage showing a small child walking directly over the area

where Matlock subsequently fell approximately 6½ minutes later and

suggests the photographs of the scene showing no footprints through the

watermelon juice prove the puddle was created after the child traversed the

site. Additionally, Brookshire notes Matlock’s own statements at the time of

the accident indicating his belief the liquid had not been on the floor long

and admitting he did not see any tracks or footprints through the liquid.

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Like plaintiffs in Ross and White, Matlock has failed to produce any

evidence store employees themselves created or had actual knowledge of the

watermelon juice on the floor, and he has not produced any positive

evidence regarding how long before his fall the liquid had been on the floor.

Because Matlock would carry the burden at trial, to prevail on summary

judgment Brookshire need only point to the absence of factual support for

one essential element of Matlock’s claim. Brookshire challenged Matlock’s

ability to prove it either created or had actual or constructive notice of the

puddle of watermelon juice on the floor of the store prior to his fall, and in

response, Matlock failed to produce factual support sufficient to establish the

existence of a genuine issue of material regarding this essential element of

his claim against Brookshire. Accordingly, this assignment of error is

without merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment granting

summary judgment in favor of Brookshire Grocery Company is affirmed.

All costs of this appeal are assessed to William Boyd Matlock.

AFFIRMED.

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