Lanette Lewis v. Wal-Mart Stores, Inc., and XYZ Insurance Company

Judgment rendered January 15, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,207-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

LANETTE LEWIS Plaintiff-Appellant

versus

WAL-MART STORES, INC. AND Defendant-Appellee
XYZ INSURANCE COMPANY

*****

Appealed from the
Third Judicial District Court for the
Parish of Lincoln, Louisiana
Trial Court No. 59352

Honorable Bruce Edward Hampton, Judge

*****

GORDON MCKERNAN INJURY Counsel for Appellant
ATTORNEYS
By: Harold Dean Lucius, Jr.

BLANCHARD, WALKER, O’QUINN Counsel for Appellee
& ROBERTS
By: Stacey Denise Williams
Scott R. Wolf

*****

Before WILLIAMS, PITMAN, and STONE, JJ.

STONE, J.

Plaintiff, Lanette Lewis (“Ms. Lewis”), appeals the trial court decision

granting summary judgment in favor of defendant, Wal-Mart Stores, Inc.

(“Wal-Mart”), finding that there are no genuine issues of material fact with

respect to the temporal period in an action to impose merchant liability. For

the following reasons, we reverse and remand for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On December 27, 2017, Ms. Lewis filed suit against Wal-Mart and its

liability insurer, XYZ Insurance Company, under the merchant theory of

liability pursuant to La. R.S. 9:2800.6.1 Ms. Lewis alleged that on or about

January 2, 2017, she began shopping at Wal-Mart Store #23 located in

Ruston, Louisiana, between 7:00 a.m. and 8:00 a.m. She completed her

shopping and attempted to pay for her items at a register in the garden

center, but was redirected by a sales associate to complete her purchase at a

cash register located at the front of the store instead. As she was walking

from the garden center toward the front of the store, she slipped in a puddle

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La. R.S. 9:2800.6(B) states in pertinent part:

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.

of water on the floor in or near the pharmacy department and sustained

severe and painful injuries.

On February 8, 2018, Wal-Mart filed its answer, denying any liability

for Ms. Lewis’ injuries, and further alleged that Ms. Lewis’ own failure to

keep a proper lookout, observe her surroundings, and exercise reasonable

care for the safety and protection of her own person, were the causes of her

injuries. Wal-Mart filed a motion for summary judgment on December 11,

2018, arguing that Ms. Lewis cannot carry her burden of proving that “the

defendant either created the condition or had actual or constructive notice of

the condition which caused the damage prior to the occurrence.”

A brief hearing on Wal-Mart’s motion for summary judgment was

held on February 14, 2019, after which time the trial court took the matter

under advisement. On April 8, 2019, the trial court issued its “Reasons on

Ruling,” finding that based on the law and evidence presented, there remains

no genuine issues of material fact with respect to the temporal period, and

summary judgment is appropriate. The trial court filed its written judgment

to that effect on May 3, 2019. Ms. Lewis filed this instant appeal.

DISCUSSION

By her single assignment of error, Ms. Lewis argues that the trial

court was incorrect in granting Wal-Mart’s motion for summary judgment,

finding that there are no genuine issues of material fact present to be decided

by the trier of fact. She contends that the trial court failed to consider the

written discovery she submitted in opposition which would preclude

granting summary judgment. We agree.

A motion for summary judgment is a procedural device used when

there is no genuine issue of material fact for all or part of the relief prayed
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for by a litigant. Samaha v. Rau, 2007-1726 (La. 02/26/08), 977 So. 2d 880;

Chesney v. Entergy La., L.L.C., 51,718 (La. App. 2 Cir. 11/15/17), 245 So.

3d 281, writ denied, 2017-2095 (La. 2/9/18); Driver Pipeline Co., Inc. v.

Cadeville Gas Storage, L.L.C., 49,375 (La. App. 2 Cir. 10/01/14), 150 So.

3d 492, writ denied, 2014-2304 (La. 01/23/15), 159 So. 3d 1058. On appeal,

a trial court’s ruling on a motion for summary judgment is reviewed

pursuant to the de novo standard of review. Jones v. Estate of Santiago, 03-

1424 (La. 04/14/04), 870 So. 2d 1002; Chesney, supra; Henderson v. Union

Pac. R.R., 41,596 (La. App. 2 Cir. 11/15/06), 942 So. 2d 1259.

Appellate courts review summary judgments under the same criteria

that govern the district court’s consideration of whether summary judgment

is appropriate. Schroeder v. Board of Sup’rs of La. State Univ., 591 So. 2d

342 (La. 1991); Weaver v. City of Shreveport, 52,407 (La. App. 2 Cir.

12/19/18), 261 So. 3d 1082; Chesney, supra; Lewis v. Coleman, 48,173 (La.

App. 2 Cir. 06/26/13), 118 So. 3d 492, writ denied, 13-1993 (La. 11/15/13),

125 So. 3d 1108; Grant v. Sneed, 49,511 (La. App. 2 Cir. 11/19/14), 155 So.

3d 61.

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. Code Civ. Proc. Ann. art. 966. La. C.C.P. art. 966(A)(3). A fact is

“material” when its existence or nonexistence may be essential to plaintiff’s

cause of action under the applicable theory of recovery.

Facts are [also] material if they potentially ensure or preclude

recovery, affect a litigant’s ultimate success or determine the outcome of the

legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.
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07/05/94), 639 So. 2d 730; Chesney, supra; Estate of Levitz v. Broadway,

37,246 (La. App. 2 Cir. 05/14/03), 847 So. 2d 170. La. C.C.P. art.

966(D)(1) provides the general rule concerning the burden of proof for

summary judgment and states in pertinent part as follows:

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.

When the motion for summary judgment is made and supported
as provided in La. C.C.P. art. 966, the adverse party “may not
rest on the mere allegations or denials of his pleading,” but his
response, by affidavits or other proper summary judgment
evidence, “must set forth specific facts showing that there is a
genuine issue for trial.” If he does not so respond, summary
judgment, if appropriate, shall be rendered against him. La.
C.C.P. art. 967(B).

In conducting our de novo review, we consider all reasonable

inferences to be drawn from the record in the light most favorable to

the non-movant, Wal-Mart. See Hines v. Garrett, 04-0806 (La.

06/25/04), 876 So. 2d 764; Chesney, supra. Accordingly, we find that

the trial court erred in granting Wal-Mart’s motion for summary

judgment, as many genuine issues of material fact still remain in this

matter. The plaintiff has offered competent evidence regarding the

origin of the water she slipped in based on the limited amount of

evidence in the record. Ms. Lewis’ deposition testimony alleges that a

Wal-Mart store manager and employee who were both present at the

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scene of the incident told her that the water she slipped in could have

come from a leak in the store’s ceiling. She further alleges that one of

the employees even mentioned that the water looked like raindrops.

Additionally, Wal-Mart’s vague answers to Ms. Lewis’ propounded

interrogatories indicate that there is some semblance of an inspection

schedule:

INTERROGATORY NO. 5:
At any time prior to the accident/incident, did you, or any
of the defendants’ agents or employees, make any examination,
inspection, or test of the place or location where the
accident/incident occurred.

RESPONSE: Defendants state that employee would have
been through the place or location where the incident/accident
occurred sometime before the incident/accident occurred.
***

Finally, Wal-Mart’s own Claim Form #L7000386, both generated and

completed by Wal-Mart employees/agents, unequivocally stated that

“defects” and an “unclean” surface area were present in connection with Ms.

Lewis’ incident under the section labeled “Slip/Fall Information.” From our

perspective, regardless of whether inadvertent or intentional, those responses

can be reasonably viewed as an inculpatory admission lending further

support, at a minimum, to the existence of genuine issues left to be decided

by the trier of fact.

The written discovery submitted by Ms. Lewis indicates three

critically unresolved issues in the matter sub judice, making summary

judgment improper. First, that Wal-Mart quite possibly had an inspection

schedule in place on the date of Ms. Lewis’ incident. Second, the area

where Ms. Lewis slipped and fell would have likely been inspected by a

designated Wal-Mart employee/agent prior to her fall. Third, there is a

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reasonable possibility that Wal-Mart’s elusive responses in Claim Form

#L7000386, regarding the presence of “defects” and an “unclean” surface

area have a connection to Ms. Lewis’ theory of water leaking through the

building’s roof due to rainy weather conditions.

While it is true that Ms. Lewis cannot state with unequivocal certainty

that the puddle of water originated from a leak in the building’s roof, she has

offered sufficient evidence of the presence of genuine issues to withstand

summary judgment at this stage in the litigation. We do not find that the

temporal period encapsulated within the requisite notice element imposes an

additional burden of correctness and/or certainty, while the overarching

standard only requires more probable than not. Indeed, Ms. Lewis is not an

employee, agent, or any other specifically designated person who would

reasonably possess intimate knowledge of the unsafe conditions of the

building. The plaintiff’s burden is satisfied by showing a preponderance of

the evidence; and thus, intimate knowledge is not required to succeed in an

action to impose liability upon a merchant pursuant to La. R.S. 9:2800.6.

For these reasons, we reverse the judgment of the trial court granting

summary judgment in favor of Wal-Mart. We remand this matter to the trial

court for further proceedings. Ms. Lewis has presented sufficient evidence

to conclude that there are genuine issues of material fact to be decided as to

constructive notice. Whether the evidence is sufficient to carry Ms. Lewis’

ultimate burden of proving Wal-Mart is liable for her injuries by a

preponderance of the evidence is a matter to be determined by the trier of

fact.

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CONCLUSION

For the reasons articulated above, we find in favor of the plaintiff,

Lanette Lewis, and reverse the trial court’s judgment granting Wal-Mart,

Inc.’s motion for summary judgment and remand the case to the trial court

for further proceedings. Costs of this appeal are assessed to the defendant,

Wal-Mart, Inc.

REVERSED AND REMANDED.

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