Bertha Gruver v. the Kroger Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-689

BERTHA GRUVER

VERSUS

THE KROGER COMPANY, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2001-2563
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Oswald A. Decuir, Marc T. Amy, and J. David Painter, Judges.

AFFIRMED.

James E. Hopkins
208 E. Napoleon Street
Sulphur, LA 70663
(337) 527-7071
COUNSEL FOR PLAINTIFF/APPELLANT:
Bertha Gruver

Christopher P. Ieyoub
Plauche, Smith & Nieset, LLC
Post Office Drawer 1705
Lake Charles, LA 70602
(337) 436-0522
COUNSEL FOR DEFENDANTS/APPELLEES:
The Kroger Company
John Duke

Janice M. Reeves
Maricle and Associates
8545 United Plaza Boulevard, Suite 350
Baton Rouge, LA 70809
(225) 924-9585
COUNSEL FOR DEFENDANT/APPELLEE:
Assembled Products Corporation

AMY, Judge.

The plaintiff appeals the trial court’s granting of the defendants’ motions for

summary judgment and the dismissal of the plaintiff’s claims for injuries she

sustained when her electric grocery cart allegedly malfunctioned while grocery

shopping. For the following reasons, we affirm.

Factual and Procedural Background

On March 12, 2001, the plaintiff, Bertha Gruver, visited the Kroger Grocery

Store in Lake Charles, Louisiana, to shop for groceries. The plaintiff, who was

seventy-three years old at the time, used one of the motorized carts, the Mart Cart,

provided by Kroger. She alleges that, while she was shopping, she could not reach

a can of food while sitting in the cart. In an attempt to reach the can, the plaintiff

asserts that she dismounted the Mart Cart and placed her left foot on the ground, and

while she had one foot on the cart and another on the ground, the cart rolled forward

causing her to fall.

The plaintiff1 filed suit on May 21, 2001, against The Kroger Company

(Kroger), and John Duke, Kroger’s manager on duty at the time, alleging that they

were liable for her damages under various theories of liability. The plaintiff later

amended the petition and alleged that Assembled Products Corporation (APC), the

manufacturer of the Mart Cart, and Mart Cart, Inc.2 were liable under the Louisiana

Products Liability Act (LPLA), La.R.S. 9:2800.51, et seq.

Kroger and Duke filed a motion for summary judgment seeking dismissal of

the plaintiff’s claims and asserting that the plaintiff’s “accident and alleged injuries

1
Initially, the plaintiff filed suit individually and as the natural tutor of her son. Due to her
son’s death, the plaintiff amended her petition to add the estate of her son and her daughter, as an
heir of her son’s estate, as plaintiffs. For the purposes of this opinion, the plaintiffs will be
collectively referred to as the “plaintiff.”
2
The record contains no information as to whether Mart Cart, Inc. answered the petition.

were caused solely by her own acts of negligence, and not in any way by any fault or

negligence of Kroger or John Duke.” APC also sought summary judgment, asserting

that the plaintiff would be unable to meet her burden of proof at trial under the LPLA.

Ultimately, the trial court granted the defendants’ motions for summary

judgment. The plaintiff appeals.

Discussion

Standard of Review

A motion for summary judgment is reviewed on appeal under the de novo

standard of review. Hogg v. Chevron USA, Inc., 09-2632 (La. 7/6/10), 45 So.3d 991.

The reviewing court uses the same criteria as the trial court to determine whether

summary judgment is appropriate, i.e., whether there is a genuine issue of material

fact, and whether the movant is entitled to judgment as a matter of law. See La.Code

Civ.P. art. 966; Hogg, 45 So.3d 991. Summary judgment shall be granted “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to material fact, and

that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

“[A] ‘genuine issue’ is a ‘triable issue,’ or one as to which reasonable persons could

disagree. A ‘material fact’ is a fact, the existence or non-existence of which may be

essential to a cause of action under the applicable theory of recovery.” Hogg, 45

So.3d at 997 (citations omitted), citing Champagne v. Ward, 03-3211 (La.1/19/05),

893 So.2d 773. In proving entitlement to summary judgment:

The burden of proof remains with the movant. However, if the
movant will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the movant’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 that there is an absence of factual support for one

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or more elements essential to the adverse party’s claim, action, or
defense. Thereafter, if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

Motion for Summary Judgment - Kroger and Duke

The plaintiff contends that the trial court erred in granting Kroger’s and Duke’s

motion for summary judgment. In her petition, the plaintiff asserted causes of action

against Kroger and Duke under La.Civ.Code arts. 2317 and 2322 as well as under

La.R.S. 9:2800.6. The plaintiff also alleged that these defendants could be liable

under theories of failure to supervise or provide instruction with regard to the cart.

In their motion, Kroger and Duke addressed each of these theories of liability and

contended that the plaintiff would not be able to prove the necessary elements of each

action.

A plaintiff’s burden in a claim against merchants for a fall on the premises is

dictated by La.R.S. 9:2800.63, which provides:

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
any 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 was reasonably foreseeable.

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Although initially couched as a claim pursuant to La.Civ.Code art. 2317 and La.Civ.Code
art. 2322, the proceeding against Kroger and Duke arises from a fall on the merchant premises.
Accordingly, the applicable law is La.R.S. 9:2800.6.

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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, ware, 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.

D. Nothing herein shall affect any liability which a merchant
may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

This particular case is specifically controlled by Paragraph B insofar as the plaintiff’s

claim stems from a fall. See Smith v. Toys “R” Us, Inc., et al., 98-2085 (La.

11/30/99), 754 So.2d 209. As explained in White v. Wal-Mart Stores, Inc., 97-393

(La. 9/9/97), 699 So.2d 1081, a plaintiff must prove each of the above elements in

order to prevail.

Given the above standard, it is clear that the plaintiff failed to demonstrate the

existence of genuine issues of material fact in several regards. First, La.R.S.

9:2800.6(B)(1), requires the existence of an unreasonable risk of harm and that the

risk of harm was reasonably foreseeable. In support of their motion, Kroger and

Duke entered Duke’s affidavit into evidence wherein he explained that, immediately

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following the accident, he tested the cart’s brakes and found no problems. Further,

he stated that, the day after, he sent the scooter to Kroger’s mechanic who found no

safety hazards. Even if this latter statement was ignored due to lack of personal

knowledge as urged by the plaintiff, she failed, as the party who would bear the

burden of proof at trial, to present further evidence creating a genuine issue regarding

the presence of an unreasonable risk of harm.

Instead, she introduced her own version of events and offered the affidavit and

evaluations of Dr. Randy Price, an engineer with specialized training in

instrumentation, sensors, electronic and power machinery. Dr. Price performed two

evaluations on the Mart Cart for the purposes of determining whether the cart had

“possible design flaws and wear.” In an evaluation dated January 12, 2002, Dr. Price

stated that the Mart Cart was in disrepair and was nearing the end of its operating life.

Yet, he stated, that the “cart is still functioning as originally delivered from the

factory (with the exception of normal wear).” In reference to the Mart Cart’s brake

system, Dr. Price stated that its type of braking system was “basic but reliable, and

is used on many older types of braking systems.” Dr. Price opined that the machine’s

“failure during the accident” could have been caused by caps, likely not part of the

original design, which were placed on the seat safety switch. He explained that the

presence of the caps “can result in a joint that looks like it is making connection,

when actually it is not.” However, he further stated: “Still, when tested during the

evaluation session, the joints were making connection and the seat safety switch was

working properly. These statements only suggest the potential for an unreasonable

risk of harm and do not rise to the level of creating a genuine issue in this regard.

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Finally, even if an unreasonable risk of harm existed, the plaintiff failed to

establish that any risk posed by the Mart Cart was reasonably foreseeable. Duke

explained that, by virtue of his position as Kroger’s manager, he had “never had any

prior complaints from store patrons as to the operation of the brakes of the motorized

grocery cart [the plaintiff] fell from.” The plaintiff put on no evidence indicating that

she would be able to establish otherwise.

We note that the plaintiff’s lack of evidence regarding a reasonably foreseeable

risk also reveals another critical factor under La.R.S. 9:2800.6(B)(2) on which

summary judgment was appropriate. Under that subparagraph, the plaintiff would

bear the burden of proving at trial that the merchant had actual or constructive notice

of the condition which caused the damage, prior to the occurrence.4 In short, the

plaintiff’s evidence failed to contravene that of the defendants in any way.

Also, to the extent that the plaintiff claimed that Kroger and Duke were liable

for failure to provide instruction on the cart’s operation or for failure to train their

employees, she failed to put forth evidence in opposition to Duke’s statement that:

“All Kroger employees are available and willing to instruct and/or assist Kroger store

patrons with the use of motorized grocery carts.” The claimant’s assumption that a

lack of any further instructions caused her accident is only an assumption or an

allegation. Instead, the plaintiff stated in her deposition that she did not ask for

instruction on the cart’s operation.5 In short, the plaintiff’s evidence falls short of

4
Furthermore, La.R.S. 9:2800.6(C)(1) requires proof of a temporal element - that the
condition “existed for such a period of time.” See Babin v. Winn-Dixie Louisiana , Inc., 00-78 (La.
6/3/00), 764 So.2d 37, citing White v. Wal-Mart Stores, Inc., 97-0393 (La. 9/9/97), 699 So.2d 1081.
As explained above, the plaintiff did not produce sufficient evidence to demonstrate that there is a
genuine issue of material fact as to whether Kroger or Duke had notice of any alleged defect.
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Kroger and Duke also point to the plaintiff’s deposition as support that the plaintiff’s
conduct, as opposed to the Mart Cart, was the cause of her injuries. In her deposition, the plaintiff
testified that she did not read any of the instructions or labels on the scooter on the day in question

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establishing that she would be able to prove her burden of proof at trial.

Summary Judgment - Assembled Products

The plaintiff contends that the trial court erred in granting APC’s motion for

summary judgment, asserting that APC “did not present any evidence to controvert

the existence of the defects of design of their Mart Cart or that they provided gave

[sic] adequate warnings of its design flaws which created an unreasonable danger of

harm to those who used their product.”

The LPLA, La.R.S. 9:2800.51 et seq., provides the exclusive theories of

manufacturers’ liability for damages caused by their products. Lavergne v. America’s

Pizza Co., LLC, 02-889 (La.App. 3 Cir. 2/5/03), 838 So.2d 845. A manufacturer shall

be liable for damage caused by an unreasonably dangerous characteristic of a product

when such damage arises from a reasonably anticipated use of the product. La.R.S.

9:2800.54(A). A product may be unreasonably dangerous in: (1) its construction or

composition; (2) its design; (3) failure to adequately warn; or (4) its nonconformity

to an express warranty. La. R.S. 9:2800.54(B). The burden is on the plaintiff to prove

that a product is unreasonably dangerous. La.R.S. 9:2800.55(D). “Defects are not

presumed to be present by the mere happening of an accident.” Spott v. Otis Elevator

Co., 601 So.2d 1355, 1364 (La.1992), citing Broussard v. Pennsylvania Millers Mut.

Ins. Co., 406 So.2d 574 (La.1981).

Unreasonably Dangerous in Design

Louisiana Revised Statutes 9:2800.56 provides:

and that she did not ask any Kroger employee for instruction on how to use the Mart Cart. Further,
the plaintiff testified that she lifted her left foot off the brake and onto the floor aware of the fact that
the cart was still moving.
In opposition to the motion, the plaintiff entered into evidence her affidavit stating that based
upon her previous experience with other mechanical grocery carts and her limited mechanical
knowledge, she was unaware that the cart had a braking system. Rather, she believed “that the cart
simply stopped when you let go of the throttle on the cart[.]”

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A product is unreasonably dangerous in design if, at the time the
product left its manufacturer’s control:

(1) There existed an alternative design for the product that was
capable of preventing the claimant’s damage; and

(2) The likelihood that the product’s design would cause the
claimant’s damage and the gravity of that damage outweighed the
burden on the manufacturer of adopting such alternative design and the
adverse effect, if any, of such alternative design on the utility of the
product. An adequate warning about a product shall be considered in
evaluating the likelihood of damage when the manufacturer has used
reasonable care to provide the adequate warning to users and handlers
of the product.

Even if a plaintiff shows that an alternative product exists which is capable of

preventing the damage, the plaintiff must also satisfy the “risk/utility” analysis to

determine whether the utility of the product is weighed against the risk of harm.

La.R.S. 9:2800.56; See also Guidry v. Coregis Ins. Co., 04-325 (La.App. 3 Cir.

12/29/04), 896 So.2d 173.

The plaintiff points to Dr. Price’s evaluation of the Mart Cart and his affidavit

filed in support of her opposition to summary judgment. In the affidavit, Dr. Price

addressed two separate areas of the Mart Cart: the body design and the braking

system. Dr. Price opined that the Mart Cart’s skirting did not have a guard to prevent

the cart from potentially entrapping one’s foot underneath. He stated that this “design

flaw” could have been prevented by designing it with a straight and narrow side akin

to the design of the Lark EZ Shopper, another cart which was offered at Kroger at the

time of the accident.

Next, Dr. Price stated that the braking system on the Mart Cart only provided

a manual foot brake rather than having both an electronic and manual braking system.

He further explained that if the Mart Cart would have had the dual braking system,

it would have stopped immediately when the plaintiff released the throttle. Dr. Price

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stated: “This technology was available and it was and is relatively inexpensive[.]”

APC notes that, although Dr. Price opined that certain “technology was

available at the time,” there is no evidence in the record as to the date in which the

Mart Cart left the manufacturer. Further, it adds that the record also does not contain

evidence as to the manufacturer’s specifications and standards to demonstrate when

and how the engineers designed the Mart Cart.

APC also points out the discrepancy between Dr. Price’s evaluations and his

affidavit. In his January 2002 evaluation, Dr. Price stated that the Mart Cart’s

braking system was “basic but reliable[.]” In his May 2002 evaluation, Dr. Price

compared the Mart Cart to the newer Lark EZ Shopper “to determine if the Mart Cart

contained either a defective or worn drive train, which allows the car to free roll

easier than a similar, newer cart.” After testing the two carts, Dr. Price found that

“there was no noticeable difference in the resistance to rolling.”

In speaking of the body design, Dr. Price stated that the plaintiff’s injuries

could have been prevented “easily and inexpensively” if the Mart Cart was designed

with a straight and narrow side akin to the design of the Lark EZ Shopper. However,

it cannot be inferred from Dr. Price’s general statements whether the alternative

design was available at the time the Mart Cart was manufactured. Further, Dr. Price

did not state nor did the plaintiff present evidence on the cost of this alternative

design at the time of the Mart Cart’s manufacturing in order to balance its utility

against the risk of harm. In his affidavit, Dr. Price stated that an alternative dual

brake system design which “was available” could have “easily and inexpensively,”

been incorporated. Yet, again, the plaintiff failed to establish the point at which the

Mart Cart left the manufacturer as is required under the LPLA.

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Further, Dr. Price’s affidavit provided that the plaintiff’s injuries could have

been prevented by an alternative brake design; however, according to his testing of

the two carts, “there was no noticeable difference to the resistance to rolling.” As

such, it cannot be said that the plaintiff raised a genuine issue of material fact as to

whether she would be able to prove at trial that an alternative was “capable of

preventing the claimant’s damage” as her own expert found no notable difference

between the Mart Cart and an alternative. See La.R.S. 9:2800.56.

Accordingly, summary judgment was appropriate in regard to whether APC

was liable to the plaintiff under the theory of whether the Mart Cart was unreasonably

dangerous in design.

Failure to Warn

In her amended petition, the plaintiff alleged that APC was liable under the

LPLA for failing to include labeling which contained a “clear, large, and

unambiguous warning capable of being seen and understood by the elderly and

disabled persons that the product is unstable and can roll with a minimal amount of

force, even when turned off.”

Louisiana Revised Statutes 9:2800.57 provides that:

A. A product is unreasonably dangerous because an adequate
warning about the product has not been provided if, at the time the
product left its manufacturer’s control, the product possessed a
characteristic that may cause damage and the manufacturer failed to use
reasonable care to provide an adequate warning of such characteristic
and its danger to users and handlers of the product.

B. A manufacturer is not required to provide an adequate warning
about his product when:

(1) The product is not dangerous to an extent beyond that which
would be contemplated by the ordinary user or handler of the product,
with the ordinary knowledge common to the community as to the
product’s characteristics; or

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(2) The user or handler of the product already knows or
reasonably should be expected to know of the characteristic of the
product that may cause damage and the danger of such characteristic.

However, “[a] ‘mere allegation of inadequacy’ is insufficient for a plaintiff to survive

summary judgment on a failure-to-warn claim.” Stahl v. Novartis Pharmaceuticals

Corp., 283 F.3d 254, 264-65 (5th Cir. 2002). The plaintiff must go beyond the

pleadings and designate specific facts in the record showing that there is a genuine

issue of material fact to defeat summary judgment. Id.

Kroger attached to its motion for summary judgment a picture of the Mart Cart

and a warning attached to the machine. However, the plaintiff offered no evidence

in regard to the Mart Cart’s warning. While there are pictures in the record, which

were supplied by Kroger, the plaintiff offers no information to support her claim that

these warnings were somehow inadequate. The plaintiff’s expert, Dr. Price, did not

mention the warnings in his affidavit or either evaluation. In her deposition, the

plaintiff admitted that she did not read the warnings, rather she assumed the cart

operated as other carts she had previously used. As the plaintiff cannot rely on her

mere allegation, summary judgment was appropriate.

This assignment lacks merit.

DECREE

For the foregoing reasons, the trial court’s judgment granting the defendants’

motions for summary judgment is affirmed. All costs associated with this proceeding

are assessed against the appellant, Bertha Gruver.

AFFIRMED.

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