Mildred Kirklin, Et Vir v. Brookshire Grocery Company

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-319

MILDRED KIRKLIN, ET VIR

VERSUS

BROOKSHIRE GROCERY COMPANY, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 216,871
HONORABLE GEORGE CLARENCE METOYER JR., DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE
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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.

REVERSED AND REMANDED.

Howard N. Nugent Jr.
Nugent Law Firm
P. O. Box 1309
Alexandria, LA 71309-1309
(318) 445-3696
Counsel for Plaintiff-Appellant:
Mildred Kirklin
Arthur Kirklin

James Morgan Passman
Walker, Passman & Michiels
P. O. Box 13020
Alexandria, LA 71315-3020
(318) 445-4516
Counsel for Defendant-Appellee:
Brookshire Grocery Company
Randy Randall

PICKETT, Judge.

The appellants, Mildred Kirklin and her husband Arthur Kirklin, appeal a

judgment of the trial court granting a Motion for Summary Judgment and dismissing

her suit against Brookshire Grocery Company.

STATEMENT OF THE CASE

Mrs. Kirklin was shopping at Super One Food Store in Alexandria, Louisiana,

on April 29, 2003. She alleges that she stepped on a chicken thigh bone while

walking near aisle four at the store. While her son was able to catch her before she

fell to the ground, she alleges she injured her back when she slipped on the chicken

bone.

On April 28, 2004, Mrs. Kirklin and her husband filed suit against Brookshire

Grocery Company d/b/a Super One Food Store (hereinafter “Brookshire”) and its

manager, Randy Randall. On August 6, 2006, the defendants filed a Motion for

Summary Judgment. The basis for the motion was that Mrs. Kirklin was unable to

produce evidence that Brookshire had actual or constructive notice that there was a

chicken bone on the floor as required pursuant to La.R.S. 9:2800.6.

The trial court heard arguments on the Motion for Summary Judgment on

December 18, 2006. At the conclusion of the hearing, the trial court granted the

motion. A judgment dismissing the claims of Mrs. Kirklin and Mr. Kirklin was

signed on January 3, 2007. From this judgment, the Kirklins appeal.

ASSIGNMENTS OF ERROR

The appellants, Mildred and Arthur Kirklin, assert one assignment of error:

The lower court fell into error in failing to recognize that the
plaintiff successfully proved that the merchant had constructive notice
of the hazard and the plaintiff opposed and disputed the defendant’s
assertion that it was entitled to a Summary Judgment of Dismissal.

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DISCUSSION

The supreme court discussed appellate review of summary judgments in

Duncan v. U.S.A.A. Insurance Co., 06-363, pp. 3-4 (La. 11/29/06), 950 So.2d 544,

546-547:

A motion for summary judgment is a procedural device used when
there is no genuine issue of material fact. The summary judgment
procedure is favored and designed to secure the just, speedy, and
inexpensive determination of every action and shall be construed to
accomplish these ends. La. C.C.P. art. 966(A)(2). Appellate courts
review summary judgments de novo under the same criteria that govern
the district court’s consideration of whether summary judgment is
appropriate. Schroeder v. Board of Supervisors of Louisiana State
Univ., 591 So.2d 342, 345 (La.1991). A motion for summary judgment
is properly granted only if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show there is no genuine issue of material fact, and the mover is
entitled to judgment as a matter of law. La. C.C.P. art. 966. In ruling on
the present cross motions for summary judgment, we will determine
whether either party has established there are no genuine issues of
material fact and it is entitled to judgment as a matter of law.

This action is an action against a merchant governed by La.R.S. 9:2800.6,

which states, in pertinent 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.

(2) “Merchant” means one whose business is to sell
goods, foods, wares, or merchandise at a fixed place of
business. For purposes of this Section, a merchant includes
an innkeeper with respect to those areas or aspects of the
premises which are similar to those of a merchant,
including but not limited to shops, restaurants, and lobby
areas of or within the hotel, motel, or inn.

In order to defeat the motion for summary judgment, then, Mrs. Kirklin has to

prove that there is a genuine issue of material fact as to whether Brookshire had

actual or constructive notice that the chicken bone was on the floor. The supreme

court discussed this burden of proof in White v. Wal-Mart Stores, Inc., 97-393, pp.

4-5 (La. 9/9/97), 699 So.2d 1081, 1084-85(footnotes omitted):

This statute is clear and unambiguous. The statute uses the
mandatory “shall.” Thus, in addition to all other elements of his cause
of action, a claimant must also prove each of the enumerated
requirements of Section (B). The conjunctive “and” follows Section
(B)(2). Thus, Sections (B)(1), (B)(2), and (B)(3) are all mandatory. The
requirement of Section (B)(2) is that the merchant created or had actual
or constructive notice of the condition prior to the occurrence. That is
clear and unambiguous. Constructive notice, at issue here, is defined by
Section (C)(1). The definition is likewise clear and unambiguous.
There is a temporal element included: “such a period of time ...” The

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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.

Mere speculation that a condition existed for a period of time and that a merchant was

negligent in failing to notice that condition is insufficient to meet the burden

necessary to defeat a motion for summary judgment. Babin v. Winn-Dixie Louisiana,

Inc., 00-78 (La. 6/30/00), 764 So.2d 37.

Mrs. Kirklin testified in her deposition, which was made part of the note of

evidence in the summary judgment proceeding, that the chicken bone and a small

grease spot were in the center of the aisle when she slipped on it. She testified that

it must have been there all night, because the deli had not begun to fry chicken when

she was there at noon because she did not smell any chicken. She also testified that

there was dust and dirt on the aisle, as well as a piece of paper towel. Mrs. Kirklin

also signed an affidavit wherein she explained that she did an experiment in her

kitchen, and the chicken bone she slipped on was the same color as a chicken bone

she cooked in her own kitchen, took the meat off the bone, and let set out for twelve

hours. She also testified that someone at a doctor’s office told her that the bone was

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there the night before, but she was unable to produce the witness, and her own

testimony is hearsay.

Brookshire submitted the affidavit of its assistant store director, Mark McGrew,

into evidence. He stated that he did an investigation after Mrs. Kirklin reported her

fall and determined that neither he nor any other employee of Brookshire had notice

of the chicken bone on the floor. He also stated that he checked the aisles that

morning and found no chicken bones in the aisles. Finally, he stated that

Brookshire’s deli fries chicken before 8:00 a.m. each day.

Mrs. Kirklin was able to create a genuine issue of material fact that the chicken

bone was on the floor for such a period of time that Brookshire had constructive

notice of its presence. Her kitchen experiment may tend to prove that the chicken

bone may have been old. Her statement that she did not smell any chicken, therefore

the deli had not cooked any that morning, may be contradicted by the affidavit of Mr.

McGrew, but credibility determinations are not proper in summary judgment

determinations. The fact that there was dust and dust balls on the floor offers

evidence that the floor had not been swept, even though it does not show how long

the chicken bone had been on the floor.

CONCLUSION

Because there are questions of material fact, the judgment of the trial court is

reversed. The case is remanded for further proceedings consistent with this opinion.

Costs of this appeal are assessed to Brookshire Grocery Company.

REVERSED AND REMANDED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3, Uniform Rules, Courts of Appeal.

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