Connie Sullivan v. Brookshire Grocery Company and Sealy Uptown, LLC

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

No. 54,535-CW

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

CONNIE SULLIVAN Respondent

versus

BROOKSHIRE GROCERY Applicant
COMPANY AND SEALY
UPTOWN, LLC

*****

On Application for Writs from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 621,118

Honorable Ramon Lafitte, Judge

*****

LUNN IRION LAW FIRM, LLC Counsel for Applicant,
By: James Alex Mijalis Brookshire Grocery
William Orie Hunter, III Company

GREGORIO, CHAFIN, JOHNSON, Counsel for Respondent,
TABOR & FENASCI, LLC Connie Sullivan
By: Charles E. Tabor

*****

Before MOORE, STEPHENS, and ROBINSON, JJ.

STEPHENS, J.

The issue before this Court in this appeal, initially filed as a

supervisory writ, is whether the trial court erred in granting Ms. Sullivan’s

motion for new trial and recalling a motion for summary judgment

previously granted in favor of Brookshire. For the reasons set forth below,

we grant the writ, affirm the judgment of the trial court, and remand for

further proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

This writ grant to docket arises out of a slip and fall accident that

occurred on July 14, 2019, at the Brookshire’s store located at 4828 Line

Avenue in Shreveport, Louisiana. In her petition, Connie Sullivan (“Ms.

Sullivan”) alleged that while shopping in the store, she “unknowingly

stepped in and slipped in an unmarked pool of water, causing her to

violently fall to the floor, injuring her body.” She further alleged that the

store’s “ceiling and/or roof was leaking, which caused water to pool on the

floor of the building interior in aisle eight (8).” Ms. Sullivan filed suit

against Brookshire Grocery Company (“Brookshire”) and Sealy Uptown,

LLC (“Sealy”), the lessor of the premises. According to the lease

agreement, Sealy had the duty to maintain the roof.1

Brookshire filed a motion for summary judgment alleging that Ms.

Sullivan couldn’t satisfy her burden of proving that Brookshire had

constructive notice of the alleged condition of the floor as required by La.

R.S. 9:2800.6. Attached to Brookshire’s motion for summary judgment

was, inter alia, an affidavit executed by Leo Stevenson, the store director of

1
Ms. Sullivan has settled her claims with Sealy.

the Line Avenue Brookshire’s who was present on the date of Ms. Sullivan’s

fall. In his affidavit, Mr. Stevenson stated that “he would have walked

through the area where Ms. Sullivan claims she slipped and fell less than

thirty minutes before the incident” and “that had he noticed a roof leak at the

time, he would have protected the area.” Ms. Sullivan filed an opposition to

the motion for summary judgment. Among her attachments were an

affidavit of meteorologist Joe Haynes regarding the unusually heavy rainfall

in Shreveport caused by Tropical Storm Barry the day before and day of Ms.

Sullivan’s accident and excerpts from her son-in-law’s deposition describing

his written request to the store to preserve video footage from the date of her

incident.2 A hearing was held on the motion on July 19, 2021.

Following the hearing, the trial court granted Brookshire’s motion for

summary judgment. Ms. Sullivan filed a motion for new trial, urging that

the trial court did not take into consideration the numerous issues of fact

concerning constructive notice provided to Brookshire under La. R.S.

9:2800.6. Pursuant to La. C.C.P. arts. 1971 and 1978, she sought new trial

for reargument only.

After hearing arguments by counsel for the parties, the trial court

granted the motion for new trial and recalled the summary judgment that had

been granted in favor of Brookshire. On December 7, 2021, Brookshire

filed notice of its intent to seek supervisory writs. The writ application was

granted on January 27, 2022, and the matter was docketed for briefing.

2
Brookshire did not preserve the videotape footage as requested by Ms.
Sullivan’s son-in-law. The rationale was that, since there was no video camera on aisle
eight, there was no need to preserve any other footage from the date of Ms. Sullivan’s
accident. Brookshire also argued that there were proprietary reasons for its refusal to
save the videotapes.
2

DISCUSSION

The only issue before this Court is whether the trial court abused its

discretion when it granted Ms. Sullivan’s motion for new trial and reversed

its earlier summary judgment ruling in favor of Brookshire.

Brookshire asserts that Ms. Sullivan failed to allege sufficient grounds

for the granting of a new trial, and the trial court failed to articulate a good

ground to support its ruling and order granting the requested relief. Thus,

the trial court’s ruling constitutes an abuse of its discretion. On the other

hand, Ms. Sullivan urges that she demonstrated that there was a genuine

issue of material fact as to whether Brookshire had constructive notice of the

water puddle on aisle eight. According to Ms. Sullivan, faced with the

information raised by her during argument of the new trial motion, the trial

court was well within its discretion and authority in granting her motion for

new trial and reversing its prior grant of summary judgment in favor of

Brookshire.

A new trial on all or part of the issues, or for reargument only, may be

granted upon contradictory motion of any party or the court on its own

motion. La. C.C.P. art. 1971.

The grant of a new trial is mandatory (1) when the verdict or

judgment appears contrary to the law and evidence; (2) when a party has

discovered new evidence important to the cause which she could have

obtained prior to or during trial; or (3) when the jury has been bribed or

behaved improperly so that impartial justice has not been done. La. C.C.P.

art. 1973.

Additionally, a new trial may be granted, if, in the court’s discretion,

there are good grounds therefor. La. C.C.P. art. 1974.
3

The applicable standard of review for a trial court’s ruling on a motion

for new trial is whether the trial court abused its discretion. Pitts v.

Louisiana Medical Mutual Ins. Co., 16-1232 (La. 3/15/17), 218 So. 3d 58.

This standard applies whether the motion was peremptory or discretionary.

Price on Behalf of Price v. Minden Medical Center, 52,499 (La. App. 2 Cir.

2/27/19), 266 So. 3d 452; Alcorn v. Duncan, 49,964 (La. App. 2 Cir.

8/26/15), 175 So. 3d 1014, writ denied, 15-1929 (La. 11/20/15), 180 So. 3d

1288; Jones v. LSU/EA Conway Medical Center, 45,410 (La. App. 2 Cir.

8/11/10), 46 So. 3d 205.

Generally, an abuse of discretion results from a conclusion reached

capriciously or in an arbitrary manner. The word “arbitrary” implies a

disregard of evidence or the proper weight thereof. A conclusion is

“capricious” when there is no substantial evidence to support it or the

conclusion is contrary to substantiated competent evidence. Id. Although a

reviewing court defers to reasonable decisions within the trial court’s

discretion, a decision based upon an erroneous interpretation or application

of the law, rather than a valid exercise of discretion, is not entitled to such

deference. Id.

Louisiana’s Merchant Liability Statute, La. R.S. 9:2800.6, provides

that a merchant such as Brookshire owes a duty to persons who use its

premises to exercise reasonable care to keep his aisles, passageways, and

floors in a reasonably safe condition. La. R.S. 9:2800.6(A). This duty

includes a reasonable effort to keep the premises free of any hazardous

conditions which reasonably might give rise to damage. Id; Lewis v. Jazz

Casino Company, L.L.C., 17-0935 (La. App. 4 Cir. 4/2618), 245 So. 3d 68,

writ denied, 18-0757 (La. 9/21/18), 252 So. 3d 877.
4

There are three specific elements of a claim under La. R.S. 2800.6.

Subsection (B) provides:

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 her 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.

As noted by the Louisiana Supreme Court in White v. Wal-Mart

Stores, Inc., 97-0393, p. 6 (La. 9/9/97), 699 So. 2d 1081, 1086, as the

plaintiff seeking to recover under the Merchant Liability Statute must

establish all three elements of La. R.S. 9:2800.6(B), “the failure to prove any

is fatal to the claimant’s cause of action.” The basis for Brookshire’s motion

for summary judgment, initially granted by the trial court, was that Ms.

Sullivan failed to establish that Brookshire had constructive notice of the

water puddle on the floor of aisle eight prior to her fall. Proof of the

temporal element of La. R.S. 9:2800.6 may be made by both direct and

circumstantial evidence. Birdsong v. Hirsch Memorial Coliseum, 39,101

(La. App. 2 Cir. 12/15/04), 889 So. 2d 1232; Crawford v. Ryan’s Family

Steakhouse, Inc., 31,911 (La. App. 2 Cir. 5/5/99), 741 So. 2d 96.

Specifically, in granting summary judgment, the trial court observed:

I don’t think an employee has to walk the aisles every five
minutes to check, but based on my review of all of these
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attachments and depositions that were attached to the motion,
and attachments to the opposition, I think that I am going –
well, I don’t think, I know I’m going to grant the motion for
summary judgment in connection with the notice issue
inasmuch as Mr. Stephenson [sic] testified that he just – well,
not just, but within 30 minutes, or less than 30 minutes, walked
the aisle. And there is nothing in the record indicating that that
particular place had been leaking before that day. If there had
been some employee or anyone saying, well, last time it rained,
you know, we saw a leak in that exact same spot we would
have a different story, but that is not the case here. For those
reasons, I am going to grant your motion for summary
judgment.

At the hearing for the motion for new trial, the predominant issue

argued by counsel was the store’s destruction of the requested video footage.

The court was very engaged in the argument, going back and forth with the

attorneys. Note the following exchanges:

Defense Counsel: The rationale [the store] gave as why they didn’t preserve
it [is] because there was nothing on this aisle to preserve
and that’s why they did it. And, then, Your Honor, more
importantly, that goes to the issue of reasonable care
whether Brookshire Grocery Company failed to exercise
reasonable care.

There’s still been no evidence presented by plaintiff as to
the most important second element: plaintiff has to prove
that the condition existed for such a period of time that
Brookshire Grocery Company would or wouldn’t –
should’ve known of this—this condition.
So let’s just assume—

The Court: Well, let me—let me interrupt you. Existed for such a
period of time, that it has to exist for some time…. Even
cases said it doesn’t have to be a specific time limit, but it
would’ve been there for some period of time and the
store would have known—or should have known, I
guess, had they done any inspection, for example, which
is this case. In your affidavit, [the manager’s] affidavit,
[he said he] did inspect [aisle eight]. Okay. I’m sure
when he inspected the aisle, he didn’t … inspect just one
aisle as if, “Okay. I know a slip-and-fall is gonna happen
so I’m just going to walk Aisle 8.” The video would
have shown him inspecting other aisles as well; would
you agree?

Defense counsel: Perhaps ….
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The Court: [Defense counsel] is right when he indicates that he has
an affidavit saying a [manager] just walked through [aisle
eight] 30 minutes—nothing [on the floor].

Plaintiff counsel: Yes, your Honor.

The Court: The camera would have shown, I guess, inspections of
other areas but not that area. There was no camera there.

Plaintiff counsel: That’s right. And I can’t dispute what he did or didn’t do
anymore because they didn’t keep [the footage]. And so
let’s say that [the manager] didn’t inspect it at all. Or
let’s say that he inspected it 45 minutes before. Those—
that’s why the camera issue is so important, because,
now, I’m in a situation where all a store ever has to do to
win on a summary judgment is to get rid of the camera
evidence and say it didn’t exist and then execute an
affidavit that said, “I walked through there 30 minutes
before and didn’t see anything.”

…. Brookshire’s doesn’t keep their logs anymore….
They have this duty that you’ve got to keep a constant
lookout…. You’ve got to keep a constant lookout under
Brookshire’s rules….
That’s why we need to present these facts to a jury for
them to tell is what’s right. Otherwise, plaintiffs can
never get over first base because the defendants have full
control of the evidence and they can get rid of what they
want to.

Defense counsel: Your Honor, we’ve gotten rid of nothing. There was no
video on that aisle. We didn’t preserve any video
because there was nothing on that aisle….

The Court: I just have a problem with the fact the video was not
preserved and [Mr. Schmale’s email on behalf of Ms.
Sullivan] asks that all video be preserved. In the Lewis v.
Jazz Casino Company [case] found at 245 So. 3d 68, [the
court] indicated that there were issues of material fact in
connection with whether the casino failed to preserve the
evidence, which is what we have here …. [A]fter the fall,
a puddle is a foot wide, the cases indicate … the plaintiff
does not have to be specific as to the time, but that the
substance was there for some period of time ….
Circumstantial evidence can be used in connection with a
summary judgment.

In Lewis, supra, the case cited by the trial court in the instant case,

Ms. Lewis filed suit against Jazz Casino, the owner and operator of the

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Harrah’s casino in New Orleans, claiming that as she was walking through

the casino on August 4, 2015, she slipped and fell on some food, sustaining

injuries. The casino filed a motion for summary judgment, urging Ms.

Lewis’s inability to prove all of the elements of her cause of action. The

trial court granted summary judgment in favor of the casino, finding that Ms.

Lewis failed to establish constructive notice, i.e., that the condition existed

for “some time period” prior to her fall, and Ms. Lewis appealed. Id., p. 8,

245 So. 3d at 74.

The Fourth Circuit observed that, although Ms. Lewis proved by

circumstantial evidence that the substance in which she slipped had been on

the floor “for some period of time,” the length of time that it had been

present was in dispute and could only be determined by the fact finder at

trial. Furthermore, she was only able to show the condition of the floor one

minute prior to her accident due to the fact that the casino selectively chose

to only preserve video for one minute before her fall “which raised a genuine

issue of material fact as to whether Jazz Casino intentionally, and without

reasonable explanation, failed to preserve videotape evidence that was

detrimental to its case and would have enabled Ms. Lewis to prove her

case.” Id. at 17-0935, pp. 12-13, 245 So. 3d at 76.

As stated above, in this case, Brookshire did not comply with Ms.

Sullivan’s request for the videotapes from the date of her accident, since

there was no camera directly recording aisle eight. While the tapes probably

would not have provided any direct evidence for Ms. Sullivan to use to meet

her burden of establishing constructive notice, the store’s unilateral decision

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to not allow judicial resolution of this issue, such as through an in camera

review, is concerning to this Court.3

Keeping in mind the standard of review for a trial judge’s ruling on a

motion for new trial, abuse of discretion, we cannot say that the trial court

acted arbitrarily or capriciously in granting Ms. Sullivan’s motion for new

trial and vacating its previous summary judgment ruling in favor of

Brookshire. The fact that water was dripping onto Ms. Sullivan from a leak

in the roof at the time of her fall, after a heavy rain event that had ended just

two hours earlier, her pants were “soaked” with water from the puddle in

which she slipped, and that this puddle was a foot in diameter after having

soaked into Ms. Sullivan’s clothes, constitute positive evidence sufficient to

show that the water in which Ms. Sullivan slipped and fell had been on the

floor for some period of time prior to her fall. Whether this period of time

is sufficiently lengthy such that Brookshire’s employees had constructive

notice and should have discovered the puddle in the exercise of reasonable

care are necessarily fact questions for the trier of fact following a trial on the

merits.

CONCLUSION

For the reasons set forth above, the writ application is granted, the

judgment of the trial court is affirmed, and the matter is remanded for further

proceedings. Costs of this application are assessed to defendant, Brookshire

Grocery Company.

WRIT GRANTED; AFFIRMED; REMANDED.

3
According to Wayne Blauert, Brookshire’s corporate representative, the video
footage requested by Ms. Sullivan would have been “good evidence” to show employees
going throughout the store performing periodic inspections according to store policy.
9