David Whitehead v. Walmart of Louisiana LLC Walmart Inc.

Judgment rendered July 3, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,694-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

DAVID WHITEHEAD Plaintiff-Appellant

versus

WALMART OF LOUISIANA LLC Defendant-Appellee
WALMART INC.

*****

Appealed from the
Bossier City Court for the
Parish of Bossier, Louisiana
Trial Court No. 102,086

Honorable Santi A. Parks, Judge

*****

DAVID WHITEHEAD In Proper Person,
Appellant

BLANCHARD, WALKER, O’QUIN Counsel for Appellee,
& ROBERTS, APLC Walmart Inc.
By: Scott R. Wolf

*****

Before ROBINSON, HUNTER, and ELLENDER, JJ.

ROBINSON, J.

David Whitehead (“Whitehead”), pro se plaintiff in a personal injury

action, appeals the Bossier City Court’s granting of summary judgment on

July 10, 2023, in favor of defendants, Wal-Mart Louisiana, LLC, and Wal-

Mart, Inc. (collectively, “Walmart”).

For the reasons set forth below, we AFFIRM the trial court’s

judgment.

FACTS AND PROCEDURAL HISTORY

On March 7, 2023, Whitehead sued Walmart for injuries he allegedly

sustained following an incident on March 19, 2022, in which he collided

with another shopper riding a motorized cart in the doorway of the Airline

Drive Walmart. Whitehead claimed that Walmart was negligent for failing

to adequately protect him from the other shopper and demanded $5,000.00

in damages for his injury. Before filing suit, Whitehead attempted to file a

direct claim with Walmart for payment under its applicable insurance policy,

but was denied by letter from Walmart dated April 22, 2022, in which

Walmart stated that it was not responsible for the incident.

Whitehead originally filed his suit against Walmart in small claims

court along with two other separate claims against Speedy Cash and

O’Reilly Automotive, but it was later transferred to the regular city court

docket and split into separate suits for each defendant.

Whitehead simultaneously moved to dismiss his lawsuit without

prejudice, to stay discovery pending resolution of his motion to dismiss, and

for the presiding Judge Parks to recuse himself from the case. Whitehead’s

grounds for recusal were that Judge Parks shared an office with the former

judge who had recused himself from a separate case involving Whitehead,

Judge Wilson, that Judge Parks’ wife was formerly a member of an

organization with opposing counsel, and that Judge Parks’ wife had

previously obtained a settlement on behalf of her plaintiff client against

Walmart and, therefore, had a financial interest in Walmart. The trial court

denied Whitehead’s motion to dismiss without prejudice because Walmart

had already appeared in the case, but noted that even if the case had been

dismissed and Whitehead refiled, it would still be transferred to the regular

city court docket. Whitehead’s motion to stay discovery was granted. The

trial court denied the motion to recuse, noting that there was no showing of a

conflict of interest merely by identifying that a relationship with certain

individuals existed, noting in particular that Judge Wilson merely rented

office space from him and no files, staff, or expenses were shared.

On May 30, 2023, Walmart moved for summary judgment on the

grounds that it did not owe a duty to Whitehead to protect him from the

alleged negligence of third-party customers, and that Whitehead did not

articulate any alleged duty; therefore, there would also be no breach.

Walmart also alleged that even if there had been some sort of duty and

resulting breach, the circumstances of the incident were such that there was

no causal connection with Whitehead’s injury. The accident was not within

the scope of protection, and Whitehead was the actual cause of the injury

because he was the one who stepped in front of the motorized cart.

Walmart’s motion included a video recording of the incident and an affidavit

from the assistant store manager stating that, based on her review of the

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video, Whitehead actually caused the accident by stepping in front of the

shopper riding the motorized cart.

Whitehead filed a cross-motion for summary judgment, alleging the

video did not show his accident and that it had been created as part of a

coverup for liability. He generally argued that Walmart has a duty to use

proper, ordinary care to avoid injuries, and specifically claimed that

Walmart failed to conform to its duty of protection by the entrance/exit

design by not using wall dividers to separate individuals who entered and

exited the store. He also requested that the court inspect Walmart’s

facilities.

Following a hearing held on June 26, 2023, the trial court granted

Walmart’s motion, finding Whitehead had not stated any relevant duty owed

by Walmart to protect him from the third-party shopper, nor had he provided

any evidence of any alleged breach of any duty. Whitehead moved for

reconsideration, again asserting that Walmart owed a duty of protection to

him that encompassed a safer entrance/exit design, but adding that Walmart

also should have employees stationed at the doorways to prevent accidents.

He again claimed the video did not show his accident and asked for

discovery related to the alleged altering of the video, as well as asked for the

court to inspect Walmart’s premises. The motion was denied.

During the form and content hearing, Whitehead voiced objections to

the judgment on several grounds, mainly reasserting all previous arguments,

including the claim that Judge Parks should be recused. All objections were

overruled and the signed written judgment was rendered in favor of Walmart

on July 10, 2023. Whitehead appealed the judgment on July 11, 2023. He

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also filed a motion for injunctive relief on December 18, 2023, in which he

raised several requests that were essentially arguments on the merits of the

case that were subjects of the appeal. This court denied the motion for

injunctive relief.

DISCUSSION

Standard of Review - Summary Judgment

Appellate courts review summary judgment de novo, using the same

criteria that govern a district court’s consideration of whether summary

judgment is appropriate. Shelton v. Standard/700 Associates, 01-0587 La.

10/16/01), 798 So. 2d 60; Mackey v. Jong’s Super Value No. 2, 41,440 (La.

App. 2 Cir. 9/27/06), 940 So. 2d 118; Lowery v. Wal-Mart Stores, Inc.,

42,465 (La. App. 2 Cir. 9/19/07), 965 So. 2d 980. The procedure is designed

to secure the just, speedy, and inexpensive determination of actions, and is

favored under Louisiana law. La. C.C.P. art. 966(A)(2). Summary

judgment shall be rendered “if the motion, memorandum, and supporting

documents show that there is no genuine issue as to material fact, and that

mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3).

The burden of proof on a motion for summary judgment remains with

the mover. La. C.C.P. art. 966(D)(1). However, if the mover will not bear

the burden of proof at trial, its burden does not require it to negate all

essential elements of the adverse party’s claim, but rather to point out to the

court that there is an absence of factual support for one or more elements

essential to his claim. Id. If the mover meets this initial burden of proof, the

burden shifts to the adverse party to produce factual support sufficient to

establish that he will be able to meet his evidentiary burden at trial. Id.

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The adverse party may not rest on the mere allegations in his

pleadings in response to a properly made and supported motion for summary

judgment; rather, his response, by affidavits or otherwise, must set forth

specific facts showing that there is a genuine issue for trial. La. C.C.P. art.

967(B). If he does not so respond, summary judgment, if appropriate, shall

be rendered against him. Id.

Negligence

Whitehead argues that Walmart was negligent in failing to protect him

from the injury he sustained when hit by a motorized shopping cart exiting

the store through the entrance door, claiming that Walmart should have had

barriers dividing the individuals moving through the store’s entrance and

exit doors and/or employees directing the movements of individuals going in

and out of the doors.

Louisiana courts have adopted a duty-risk analysis in determining

whether to impose liability under the general negligence principles of La.

C.C. art. 2315. For liability to attach under a duty-risk analysis, a plaintiff

must prove five separate elements: (1) the defendant had a duty to conform

his conduct to a specific standard of care; (2) the defendant failed to conform

his conduct to the appropriate standard of care; (3) the defendant’s

substandard conduct was a cause in fact of the plaintiff’s injuries; (4) the

defendant’s substandard conduct was a legal cause of the plaintiff’s injuries;

and (5) actual damages. Pinsonneault v. Merchants & Farmers Bank &

Trust Co., 01-2217 (La. 4/03/02), 816 So. 2d 270; Lowery, supra.

Whether a legal duty is owed by one party to another depends on the

facts and circumstances of the case and the relationship of the parties.

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Haskins v. State Farm Fire & Cas. Co., 612 So. 2d 990 (La. App. 2 Cir.

1993). Proprietors of stores generally have duties to use reasonable care to

protect the safety of their patrons, and to avoid exposing them to

unreasonable risks of harm. Mundy v. Dept. of Health and Human Res., 620

So. 2d 811 (La. 1993); Mosley v. Temple Baptist Church of Ruston, La., Inc.,

40,546 (La. App. 2 Cir. 1/25/06), 920 So. 2d 355; Pistorius v. Higbee

Louisiana, LLC, 54,780 (La. App. 2 Cir. 2/8/23), 356 So. 3d 1204, writ

denied, 23-00331 (La. 5/2/23), 359 So. 3d 1290; Cusimano v. Wal-Mart

Stores, Inc., 04-0248 (La. App. 1 Cir. 2/11/05), 906 So. 2d 484. However,

merchants are not insurers of their patrons’ safety and a customer is under a

duty to use ordinary care to avoid injury. Ton v. Albertson’s LLC, 50,212

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

2/5/16), 186 So. 3d 1169; Mosley, supra; Pistorius, supra; Cusimano, supra;

Stewart v. Gibson Prods. Co. of Natchitoches Parish La. Inc., 300 So. 2d

870 (La. App. 3 Cir. 1974); McManus v. Brookshire Grocery Co., 09-581

(La. App. 3 Cir. 12/16/09), 2009 WL 4831619. Further, a storeowner’s duty

does not extend to protecting patrons from the independent actions of non-

employee third parties unless there is a special relationship giving rise to

such a duty. Mosley, supra; Lowery, supra.

Whitehead principally relies on the Third Circuit’s holding in Stewart

to very generally assert that Walmart has a duty of care that would apply to

this case. In Stewart, the defendants sponsored a Labor Day promotion

event that centered around an air drop of 2,400 ping-pong balls that were

marked with discounts ranging from 5% to 25% to be used at one of the

defendants’ four stores, as well as some with cash value. The plaintiff,

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Stewart, a 70-year-old woman, attended the event. As she was walking to

her car after exiting one of the stores, the ping-pong balls were dropped into

the parking lot. There were 1,500 to 2,000 people in the parking lot and in

the midst of the chaos, Stewart was knocked down and suffered a broken

right wrist and broken hip. The trial court awarded damages to Stewart. On

appeal, the Third Circuit found that the risk of harm to the plaintiff was

within the scope of protection of the duty owed by the defendants; however,

the court also found that Stewart was contributorily negligent and was barred

from recovery, which was the law at the time of the case.

Whitehead seems to focus on the aspect of the Stewart case that the

defendants owed a duty of protection to their patrons and that the patron

plaintiff was within that scope of protection. He also cites several other

cases supposedly in support of the existence of a duty, but provides no

accompanying explanation or argument. Upon review of Stewart and the

other cited cases, it appears that Whitehead refers to them due to their

reference to a business’ duty of protection of their patrons, while at the

procedural juncture of summary judgment, but none are factually or

procedurally applicable. For example, in the Cotton v. Walmart, Inc.,

54,983 (La. App. 2 Cir. 4/5/23), 361 So. 2d 1084, case cited by Whitehead,

this Court held that summary judgment was not proper in a slip and fall case

because there remained a factual issue whether the merchant had kept the

floors in a reasonably safe condition. First, La. R.S. 9:2800.6, the Merchant

Liability Statute, which provides that a merchant owes a duty to persons who

use his premises to exercise a reasonable care to keep his aisles,

passageways, and floors in a reasonably safe condition, does not apply in

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this case since the condition of the store is not at issue. Also, Cotton does

not involve a situation of third-party liability.

Whitehead offers little to no support as to what he believes Walmart’s

duty should have been in this case, other than a general reference to

protecting its patrons and the claim that the store should have had door

dividers and/or an employee monitoring the entrance and exit doors. In the

Stewart case, the court found that the merchant defendants had a duty

because they created the situation in which it was foreseeable that someone

could be injured, such that the risk of harm to the plaintiff was within the

scope of protection of the duty owed by the defendants. Nonetheless, the

court also noted that business owners are not insurers of patrons’ safety and

that customers have a duty to use ordinary care to avoid injury, which was

ultimately the reason for the Third Circuit’s reversal of the trial court’s

damage award.

As shown in Walmart’s surveillance video, Whitehead originally

approached the exit door from outside to enter the store, but swiftly moved

to the other door – possibly from the first door not opening quickly enough.

Just as he was attempting to enter through the entrance door, the unknown

customer on the motorized cart was exiting through the same door,

seemingly at an angle from the first set of exit doors closest to the interior,

and the two collided. The customer on the motorized cart continued into the

parking lot, and after stopping for a moment to look at the person on the cart,

Whitehead continued into the store. He did not fall and appeared to walk

normally after the incident.

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The degree of care exercised must be commensurate with foreseeable

damages confronting the alleged wrongdoer. Cusimano, supra; Vernon v.

Allstate Ins. Co., 268 So. 2d 328 (La. App. 2 Cir. 1972). In this case, it is

not foreseeable that someone could be injured because of the lack of door

dividers or not having an employee to monitor foot traffic in the doorways.

The incident in which Whitehead claims to have been injured happened

quickly and could not have been prevented by an employee. It is possible

that door dividers could have prevented this specific incident, but it is

equally possible that they could have created other risks.

Most importantly, Whitehead had a responsibility for his own safety.

Had he originally walked straight into the entrance door instead of making

an abrupt lateral move from the exit door he first attempted to enter

(ironically the same misuse he argues Walmart had an obligation to protect

against), he would have had much better visibility of anyone exiting through

the entrance door and been able to avoid the collision.

Even if Walmart had some sort of duty to monitor the ingress and

egress of its patrons and to install the dividers, the failure to do so is not the

cause of Whitehead’s injury. Courts have rejected similar claims as to both

the duty and breach elements in other cases. In McManus, supra, a

supermarket was not liable for an injury received by the plaintiff when she

was struck by a motorized cart driven by another customer. The plaintiff

argued that Brookshire was negligent in failing to instruct patrons on the

proper use of the carts and failure to adequately supervise the patrons. In

granting Brookshire’s summary judgment motion, the court found there was

no causal relationship between the failure to instruct patrons on the use of

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the motorized shopping carts and the incident, which was actually caused by

the patron’s walking cane engaging the motor.

In Lowery, supra, the plaintiff customer was leaving the women’s

restroom when she was hit by the door that had been abruptly opened by

four young boys running in after mistaking it for the men’s restroom. She

argued that Walmart was negligent for failing to provide a restroom door

that would not slam in a person’s face, failing to properly monitor the

children, allowing the children to run in the store, and failing to post signs

warning that children were allowed to run in the store. Walmart filed a

motion for summary judgment maintaining that it was not responsible for the

supervision and control of minor children who may accompany a

parent/guardian into its store. The trial court granted Walmart’s motion and

this Court affirmed. This Court found that Lowery offered no evidence to

indicate that Walmart was put on notice of the children’s rowdy behavior or

that their behavior was endangering patrons, and noted that it would be

virtually impossible for Walmart to police the actions of every child in the

store, with as large as the store was and serving clientele that often includes

families with young children. It found that to impose a duty on Walmart to

protect patrons from rambunctious children would be unduly burdensome

and that such a duty lay with the guardians of the children.

It is also noteworthy that Whitehead introduced as an exhibit to his

petition and subsequent pleadings a one-page medical record from the

emergency department of Shreveport VAMC in support of his claim for

injury and damages. The discharge diagnosis was simply “hip pain,” with

instructions to follow up with a primary care provider. No other medical

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documentation was provided, nor any itemized bills for medical expenses

incurred to support the $5,000 claim for damages.

Walmart had no duty to protect against the type of incident that

allegedly caused Whitehead’s injury. There were no unreasonable risks of

harm created by the setup of the entrance and exit doors or the lack of an

employee stationed there to monitor the doorways. Louisiana jurisprudence

is clear that merchants are not insurers of their patrons’ safety and a

customer is under a duty to use ordinary care to avoid injury. Whitehead

was as much at fault for the incident in question due to the way he entered

the entrance door by a swift lateral move from the exit door that he had first

attempted to enter, and by not generally being aware of those exiting through

the entrance door as was customary for patrons. Further, a storeowner’s

duty does not extend to protecting patrons from the independent actions of

non-employee third parties unless there is a special relationship giving rise

to such a duty. No Walmart employees were involved in the incident or

were put on notice of any improper activity of their patrons. A third-party

patron on a motorized cart exited the store through the entrance doors and

collided with Whitehead. This was a sudden event caused by the fault of

both Whitehead and the third-party patron that would not have been

reasonably preventable by Walmart. In addition, it does not appear that

Whitehead has provided proof of actual damages.

Walmart has met its burden by successfully pointing out that there is

an absence of factual support for not just one, but all of the elements

essential to Whitehead’s negligence claim. Whitehead failed to meet his

burden of producing factual support sufficient to establish that he will be

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able to meet his evidentiary burden at trial. There is no genuine issue of

material fact as to Whitehead’s negligence claim and Walmart is entitled to

summary judgment.

Recusal

Whitehead argues that the trial court judge should not have presided

over his case due to several conflicts of interest – that Judge Parks shared an

office with the former judge who had recused himself from a separate case

involving Whitehead, Judge Wilson; Judge Parks’ wife was formerly a

member of an organization with opposing counsel; and Judge Parks’ wife

had previously obtained a settlement on behalf of her plaintiff client against

Walmart and, therefore, had a financial interest in Walmart.

La. C.C.P. art 154 provides:

A party desiring to recuse a judge of a district court shall file a
written motion therefor assigning the ground for recusation. This
motion shall be filed prior to trial or hearing unless the party
discovers the facts constituting the ground for recusation
thereafter, in which event it shall be filed immediately after these
facts are discovered, but prior to judgment. If a valid ground for
recusation is set forth in the motion, the judge shall either recuse
himself, or refer the motion to another judge or a judge ad hoc,
as provided in Articles 155 and 156, for a hearing.

La. C.C.P. art. 151 provides the grounds upon which a judge shall be

recused from a matter, specifically, in pertinent part, as follows:

A. A judge of any court, trial or appellate, shall be recused when
he ...

(4) Is biased, prejudiced, or interested in the cause or its outcome
or biased or prejudiced toward or against the parties or the
parties’ attorneys or any witness to such an extent that he would
be unable to conduct fair and impartial proceedings.

The grounds for recusal enumerated in La. C.C.P. art. 151 are

exclusive and do not include a “substantial appearance of the possibility of

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bias” or even a “mere appearance of impropriety” as causes for removing a

judge from presiding over a given action. In re Commitment of M.M.,

53,577 (La. App. 2 Cir. 9/23/20), 303 So. 3d 1095; Slaughter v. Bd. of

Sup’rs of S. Univ. & Agr. & Mech. Coll., 10-1114 (La. App. 1 Cir. 8/2/11),

76 So. 3d 465, writ denied, 11-2112 (La. 1/13/12), 77 So. 3d 970. Further, a

judge is presumed to be impartial. The party seeking to recuse cannot

merely allege lack of impartiality; he must present some factual basis. The

alleged bias, prejudice, or personal interest must be of a substantial nature

and based on more than conclusory allegations. Covington v. McNeese State

Univ., 10-0250 (La. 4/5/10), 32 So. 3d 223; Riddle v. Premier Plaza of

Monroe, L.L.C., 51,173 (La. App. 2 Cir. 2/15/17), 216 So. 3d 170; In re

Commitment of M.M., supra.

The applicable standard of review of recusal is abuse of discretion.

Hatfield v. Herring, 54,048 (La. App. 2 Cir. 8/11/21), 326 So. 3d 944, writ

denied, 21-01377 (La. 12/7/21), 328 So. 3d 424; Menard v. Menard, 19-580

(La. App. 3 Cir. 3/11/20), 297 So. 3d 82; In re Commitment of M.M., supra.

In order to recuse a judge from a case, the moving party must prove that,

“objectively speaking, ‘the probability of actual bias on the part of the judge

or decisionmaker is too high to be constitutionally tolerable.’” Id. (citing

Daurbigney v. Liberty Pers. Ins. Co., 18-929 (La. App. 3 Cir. 5/9/19), 272

So. 3d 69).

Whitehead made mere conclusory allegations that Judge Parks had a

conflict of interest based on his identification of the working relationship

between him and former Judge Wilson in which they simply shared office

space, and the fact that Judge Parks’ wife had been a member of a

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professional organization with the opposing counsel. The concluded

settlement for Judge Parks’ wife’s client involved no ongoing financial

interest in Walmart, and the case was actually adverse to Walmart. Judge

Parks is presumed to be impartial and the mere appearance of impropriety, if

the allegations even arise to that level, are insufficient to warrant recusal.

The trial court did not abuse its discretion by denying the motion to recuse

because no probability of actual basis was shown.

Additional Discovery

Whitehead makes a vague argument in his appeal that he should have

been afforded an opportunity to gather evidence in support of his allegations.

He argues that the court should have ordered that a certain FBI investigation

be unsealed to support his claim that the presiding judge had a conflict of

interest. No evidence was presented to show any pending FBI investigation

or how it in any way related to an alleged conflict of interest; nonetheless,

the trial court would have no authority to unseal a federal investigation.

Whitehead also claims that he was not allowed to obtain information

on the individual on the motorized cart who caused the accident. First,

Whitehead himself had successfully moved the trial court to defer discovery.

He did not thereafter file any motion for discovery or a continuance to allow

for discovery prior to the court’s granting of summary judgment. He also

did not identify any discovery that may have permitted him to avoid

summary judgment. Nevertheless, the identification of the third-party

shopper was irrelevant to Walmart’s duty and/or breach.

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Cross Motion for Summary Judgment

Whitehead seeks relief in his appeal based on the trial court’s failure

to expressly rule on his cross motion for summary judgment. This argument

is without merit. The trial court’s granting of Walmart’s motion for

summary judgment in conjunction with its silence on Whitehead’s motion

clearly denied the cross-motion.

CONCLUSION

For the reasons stated hereinabove, AFFIRMED. All costs of the

appeal are to be assessed to Whitehead.

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