Lee Grisby v. Jaasim II, LLC d/b/a Porter House Liquor

Judgment rendered September 21, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,646-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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LEE GRISBY Plaintiff-Appellant

versus

JAASIM II, LLC D/B/A Defendant-Appellee
PORTER HOUSE LIQUOR

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Appealed from the
Fourth Judicial District Court for the
Parish of Morehouse, Louisiana
Trial Court No. 2019-447

Honorable Alvin Rue Sharp, Judge

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ANTHONY J. BRUSCATO Counsel for Appellant

TAYLOR, WELLONS, POLITZ & DUHE Counsel for Appellee
By: D. Scott Rainwater
Leah C. Voth

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Before STEPHENS, COX, and HUNTER, JJ.

STEPHENS, J.

Plaintiff, Lee Grisby, appeals a judgment of the Fourth Judicial

District Court, Parish of Morehouse, State of Louisiana, granting a motion

for summary judgment filed by defendant, Jaasim II, LLC, d/b/a Porter

House Liquor, dismissing Grisby’s claims with prejudice. For the following

reasons, we reverse the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

This matter arises out of injuries Grisby sustained on August 4, 2019,

when he tripped and fell inside Porter House Liquor (the “store”) in Bastrop,

Louisiana. Grisby filed a petition for damages against Jaasim II, LLC, d/b/a

Porter House Liquor (“Porter House”), claiming he was injured when, after

making his purchase, as he was speaking to the clerk and other customers,

he began moving backward toward the door, then tripped over a display of

beer cans located on a pallet in the middle of the store, which caused him to

fall and strike his right shoulder. A photo of the pallet was attached to the

petition. Grisby further alleged the fall occurred because there was no

warning, and Porter House was negligent in:

a) creating and/or allowing an unreasonable risk of harm to Grisby,
which risk of harm was reasonably foreseeable;

b) failure to provide a reasonably safe premise;

c) failure to make a reasonable effort to keep the premises free of any
hazardous condition which might reasonably give rise to injuries;

d) failure to exercise reasonable care; and,

e) allowing a pallet having very little merchandise to be situated by the
front entrance to the store.

Porter House answered, admitting Grisby tripped over an open and

obvious display of cans located in the middle of the store but denied the

allegations of liability. Porter House asserted numerous affirmative

defenses, most notably that Grisby’s damages were caused either solely or in

part by his own fault and/or negligence or solely or in part by others for

whom Porter House is not liable, and that if a hazardous condition existed, it

was open and obvious and easily discernible by Grisby and should have

been recognized by him had he been exercising due care.

After engaging in discovery, Porter House filed a motion for summary

judgment with the following documents attached in support: 1) Grisby’s

petition for damages; 2) security footage of Grisby’s fall; 3) a photograph

taken from the security footage; 4) the transcript of Grisby’s deposition; and

5) an affidavit by Kitty Aulakh, owner of Porter House. Grisby filed an

opposition to Porter House’s motion, attaching his own affidavit in support.

Both parties submitted memos in support of their positions, and a hearing on

the motion was held on August 12, 2021. The facts were undisputed. The

video footage of the incident submitted by Porter House showed Grisby

falling after walking backward into a display pallet located in the middle of

the store containing a single layer of beer cans. Porter House argued that,

under the merchant liability statute, La. R.S. 9:2800.6, it was not liable for

Grisby’s alleged injury because the pallet was open and obvious and,

therefore, not unreasonably dangerous. Thereafter, the trial court granted

summary judgment in favor of Porter House, dismissing Grisby’s claims

with prejudice. This appeal by Grisby ensued.

DISCUSSION

A grant of summary judgment is reviewed de novo, with the appellate

court applying the same criteria that govern the district court’s decision to

grant or deny, namely, whether there is any genuine issue of material fact

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

Savannah, 2018-0991 (La. 5/8/19), 282 So. 3d 1034.

The 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

for by a litigant. Murphy, supra; Nelson v. Shelat, 54,099 (La. App. 2 Cir.

8/18/21), 325 So. 3d 1170, writ denied, 2021-01354 (La. 11/17/21), 327 So.

3d 997. After an opportunity for adequate discovery, 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 that 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 general rule concerning

the burden of proof for summary judgment and states in pertinent part:

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 v. Garrett, 2004-0806 (La. 6/25/04), 876 So. 2d 764;

Franklin v. Dick, 51,479 (La. App. 2 Cir. 6/21/17), 224 So. 3d 1130. In

determining whether an issue is genuine, a court should not consider the

merits, make credibility determinations, evaluate testimony, or weigh

evidence. Harris v. City of Shreveport, 53,101 (La. App. 2 Cir. 4/22/20),

295 So. 3d 978. A fact is “material” when its existence or nonexistence may

be essential to plaintiff’s cause of action under the applicable theory of

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recovery. Facts are material if they potentially ensure or preclude recovery,

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

dispute. Weaver v. City of Shreveport, 52,407 (La. App. 2 Cir. 12/19/18),

261 So. 3d 1079.

The summary judgment procedure is designed to secure the just,

speedy, and inexpensive determination of every action, except certain

domestic actions; the procedure is favored and shall be construed to

accomplish these ends. La. C.C.P. art. 966(A)(2). Although summary

judgment procedure is favored, it is not a substitute for trial on the merits.

S.J. v. Lafayette Parish Sch. Bd., 2006-2862 (La. 6/29/07), 959 So. 2d 884;

Bloxham v. HDI-Gerling America Ins. Co., 52,177 (La. App. 2 Cir. 6/27/18),

251 So. 3d 601. The appellate court reviews the record and all reasonable

inferences to be drawn from it in the light most favorable to the nonmoving

party. Bell o/b/o Cox v. Big Star of Tallulah, Inc., 54,032 (La. App. 2 Cir.

8/11/21), 336 So. 3d 364.

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
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.

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.

In view of these statutory requirements, plaintiffs who slip and fall in

merchants’ premises bear a heavy burden of proof.1 Failure by a plaintiff to

prove any of the three required elements in La. R.S. 9:2800.6(B) is fatal to a

plaintiff’s case. Moy v. Brookshire Grocery Co., 48,177 (La. App. 2 Cir.

6/26/13), 117 So. 3d 611.

The first element of R.S. 9:2800.6(B) requires the plaintiff to produce

factual support sufficient to show a genuine issue of material fact that there

was a condition that presented an unreasonable risk of harm and the risk of

harm was reasonably foreseeable. While merchants must exercise

reasonable care to protect their patrons and keep their premises safe from

unreasonable risks of harm, they are not insurers of their patrons’ safety and

are not liable every time an accident happens. Ton v. Albertson’s, LLC,

50,212 (La. App. 2 Cir. 11/18/15), 182 So. 3d 246, writ denied, 2015-2320

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For the purpose of this opinion, the term “slip and fall” as used in reference to
the law regarding a merchant’s liability is tantamount to “trip and fall” which more
accurately describes the circumstances of the plaintiff’s injury in this case.

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(La. 2/5/16), 186 So. 3d 1169. A merchant generally does not have a duty to

protect against an open and obvious hazard. Cox v. Baker Distrib. Co.,

L.L.C., 51,587 (La. App. 2 Cir. 9/27/17), 244 So. 3d 681, writ denied, 2017-

1834 (La. 1/9/18), 231 So. 3d 649. In order for a hazard to be considered

open and obvious, our jurisprudence has consistently stated the hazard

should be one that is open and obvious to all, i.e., everyone who may

potentially encounter it. Sepulvado v. Travelers Ins. - Charter Oak Fire Ins.

Co., 52,415 (La. App. 2 Cir. 11/8/18), 261 So. 3d 980.

An “unreasonable risk of harm” is present, so as to support the

merchant’s statutory liability for a customer’s slip and fall, if the dangerous

condition would reasonably be expected to cause injury to a prudent person

using ordinary care under the circumstances. Bell o/b/o Cox, supra. The

determination of the unreasonableness of a risk predominantly encompasses

an abundance of factual findings, which differ greatly from case to case.

Lawrence v. City of Shreveport, 41,825 (La. App. 2 Cir. 1/31/07), 948 So. 2d

1179, writ denied, 2007-0441 (La. 4/20/07), 954 So. 2d 166. Whether a

condition poses an unreasonable risk of harm that is foreseeable is a finding

of fact. Bell o/b/o Cox, supra.

On appeal, Grisby asserts the trial court erred in granting Porter

House’s motion for summary judgment, which relied on the argument that

the pallet was open and obvious and, therefore, did not pose an unreasonable

risk of harm. Most notably, Grisby claims that whether the “ankle-high

obstruction” present in this case was unreasonably dangerous is a question of

fact that precludes summary judgment. We agree.

Here, the video footage clearly captures Grisby’s fall. It is undisputed

that the pallet is located in the center of the small store, allowing for very

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little room to maneuver around it, which could arguably create an

unreasonable risk of harm. As Porter House contends, the position of the

pallet likewise supports the argument that the pallet was an open and

obvious hazard; therefore, Porter House had no duty to protect against it and

would not be liable for any harm caused by the pallet. However, the

location of the pallet is not the only factor to consider. The height of the

pallet is also a consideration with regard to determining the open and

obvious nature of the hazard.

We find that, considering both the location and the low profile of the

pallet, reasonable persons could disagree whether the pallet was open and

obvious and posed an unreasonable risk of harm and such a determination

would potentially ensure or preclude Grisby’s ability to recover from Porter

House. While we are not disputing that a trial court may determine by

summary judgment that a defect is open and obvious and therefore does not

present an unreasonable risk of harm, our task is to review each case on an

individual basis. Accordingly, we find a genuine issue of material fact exists

in this case, and the trial court erred in granting summary judgment in favor

of Porter House.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting the

motion for summary judgment by defendant, Jaasim II, LLC, d/b/a Porter

House Liquor, and dismissing with prejudice the claims of plaintiff, Lee

Grisby, is reversed, and the matter is remanded to the trial court for further

proceedings.

REVERSED AND REMANDED.

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