Douglas W. Barton v. Wal-Mart Stores, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-146

DOUGLAS W. BARTON

VERSUS

WAL-MART STORES, INC.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 258,628
HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie,
Judges.

REVERSED.

Thomas Benjamin Moyse Wahlder
Attorney at Law
P. O. Box 543
Alexandria, LA 71309
(318) 442-9417
COUNSEL FOR PLAINTIFF/APPELLANT:
Douglas W. Barton

Andrew Parker Texada
Stafford, Stewart & Potter
P. O. Box 1711
Alexandria, LA 71309
(318) 487-4910
COUNSEL FOR PLAINTIFF/APPELLANT:
Douglas W. Barton

Gregory B. Odom, II
Chadwick & Odom, LLC
P. O. Box 12114
Alexandria, LA 71315
(318) 445-9899
COUNSEL FOR DEFENDANT/APPELLEE:
Wal-Mart Louisiana, LLC

GREMILLION, Judge.

Before the court comes the appeal of Mr. Douglas W. Barton, who protests

the summary judgment granted in favor of Appellee, Wal-Mart Louisiana, LLC,

which dismissed Mr. Barton’s merchant liability claim under La.R.S. 9:2800.6 for

injuries he allegedly sustained when he fell in the automotive maintenance section

of Appellee’s store in Alexandria, Louisiana, on July 29, 2016. For the reasons that

follow, we reverse.

PROCEDURAL POSTURE

Mr. Barton’s action was commenced by the filing of a petition on August 12,

2016, in Alexandria City Court. Six days later, Wal-Mart answered the suit. On

March 29, 2017, Mr. Barton moved to transfer the matter to the Ninth Judicial

District Court claiming his damages exceeded the $50,000.00 jurisdictional limit of

Alexandria City Court. On September 7, 2017, Wal-Mart filed the motion for

summary judgment that resulted in this appeal. That motion was granted on

December 14, 2017.

APPELLATE REVIEW OF SUMMARY JUDGMENTS

On appeal, summary judgments are reviewed de novo. Magnon
v. Collins, 98–2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate
court asks the same questions the trial court asks to determine whether
summary judgment is appropriate. Id. This inquiry seeks to determine
whether any genuine issues of material fact exist and whether the
movant is entitled to judgment as a matter of law. La.Code Civ.P. art.
966(B) and (C). This means that judgment must be rendered in favor of
the movant if the pleadings, depositions, answers to interrogatories,
admissions on file, and affidavits show a lack of factual support for an
essential element of the opposing party’s claim. Id. If the opposing
party cannot produce any evidence to suggest that he will be able to
meet his evidentiary burden at trial, no genuine issues of material fact
exist. Id.

Material facts are those that determine the outcome of the legal
dispute. Soileau v. D & J Tire, Inc., 97–318 (La.App. 3 Cir. 10/8/97),
702 So.2d 818, writ denied, 97–2737 (La.1/16/98), 706 So.2d 979. In
deciding whether facts are material to an action, we look to the
applicable substantive law. Id. Finally, summary judgment procedure

is favored and designed to secure the just, speedy, and inexpensive
determination of every action. La.Code Civ.P. art. 966(A)(2).

Am. Zurich Ins. Co. v. Caterpillar, Inc., 12-270, p. 4-5 (La.App. 3 Cir. 10/3/12), 99

So.3d 739, 742-43.

MERCHANT LIABILITY

Claims against a merchant for allegedly hazardous conditions on its premises

are governed by La.R.S. 9:2800.6, which reads:

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.

(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
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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 statute tasks a merchant with the duty to maintain its premises in a

reasonably safe condition. This duty includes the obligation to refrain from creating

hazardous conditions, to discover unreasonably dangerous conditions in a timely

manner, and to reasonably ameliorate hazardous conditions when discovered. The

law also imposes liability on a merchant who fails to discover an unreasonably

dangerous condition that has existed for such a time that it would have discovered it

had the merchant exercised reasonable care, which duty is known as “constructive

notice.” The statute also explicitly places the burden of proving these elements,

including proof of the merchant’s actual or constructive notice of a hazardous

condition, on the claimant.

APPLICATION OF THESE PRINCIPLES TO THIS CASE

The initial burden is on Wal-Mart to demonstrate that it is entitled to summary

judgment; therefore, we will first examine Wal-Mart’s motion and submissions to

determine whether it carried its burden of proof. In support of its motion, Wal-Mart

supplied excerpts of the depositions of Mr. Barton and its employee, Mr. Javathan

Bullions, the affidavit of Mr. Tyler Montpelier, and surveillance video that captured

the accident.

The excerpt of Mr. Barton’s deposition reveals that on the day of the accident,

it was raining as he drove to Wal-Mart to purchase a part needed to repair a lawn

mower. He parked his vehicle outside the Tire and Lube Center of the store and

waited ten to fifteen minutes for the rain to slacken. Mr. Barton denied that his shoes

got wet when walking from his vehicle to the store. He also denied seeing any

puddles on the ground from the short distance between his vehicle and the entrance.
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As he entered the store, Mr. Barton fell. He opined that he fell in condensation,

which, he testified, surrounded the area.

Mr. Bullions testified that it had been raining about thirty minutes before Mr.

Barton fell. There were caution signs at the scene, and Mr. Bullions was proceeding

to put them out just before Mr. Barton entered, but he was checking another customer

out when the accident happened. The door opening into the lube center is a sliding

door that is activated by a button behind the counter; accordingly, customers entering

or leaving must be granted access by an associate who activates the door. Prior to

Mr. Barton’s entrance, Mr. Bullions testified, the floor was not wet. He opined that

the wind blew rain into the building as Mr. Barton entered.

Mr. Montpelier’s affidavit attested to the existence, custody, and authenticity

of surveillance video of the area before and after Mr. Barton’s fall. The video quality

is rather poor; however, the following observations can be made from it. That

portion of the video introduced begins approximately one hour before Mr. Barton’s

fall. One can see that it is daylight outside the entrance. There is a sheen on the

floor throughout the video, but it is difficult, due to the pixelated nature of the video,

to discern whether that is from moisture or the floor’s finish. During the one hour

before Mr. Barton’s fall, thirty-five customers enter or leave through that door.

Employees of Wal-Mart traverse the area six times. At no time during these

traverses of the area does there appear any disturbance of the floor’s surface, and no

customer or employee slipped or had any other difficulty. Ten minutes before Mr.

Barton enters, an elderly woman ambulating with the assistance of a walker appears

to easily traverse the area, as did a man who appeared equally elderly but not

requiring the assistance of any device. Five minutes before the fall, another older

gentleman entered the store and encountered no difficulty.

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At 12:35 p.m., Mr. Barton entered the store. His right foot is seen to slip, and

he fell forward onto his hands and knees. He remained in that position until a Wal-

Mart employee came to his assistance. Only after Mr. Barton moved from his hands-

and-knees position were impressions left on the floor such as one might expect if the

floor were wet. The employee immediately placed yellow cones. Well after Mr.

Barton moved, the impressions remained visible on the floor.

The trial court entered judgment in favor of Wal-Mart, holding that it had no

constructive notice of the moisture before Mr. Barton fell. Mr. Barton appeals,

arguing the trial court erred in finding for Wal-Mart.

As noted above, “‘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.” La.R.S. 9:2800.6(C)(1). In the present

matter, while the plaintiff is charged with the burden of proof of constructive notice,

it is Wal-Mart’s burden, as the mover for summary judgment, to demonstrate an

absence of factual support for Mr. Barton’s claim of constructive notice. La.Code

Civ.P. art 966(D)(1). We find that Wal-Mart failed to carry this burden.

Mr. Barton stated that he thought the moisture in which he fell was

condensation. Mr. Bullions, on the other hand, denied the presence of moisture

before Mr. Barton entered. The video quality is rather poor, and it is difficult to

discern at what point the floor became wet. No customer is seen disturbing moisture

on the floor before Mr. Barton. This tends to corroborate Mr. Bullions’ account.

Even were the quality better, though, we are faced with two contradictory versions

of the incident and are not allowed to weigh the credibility of the two witnesses.

Mouton v. Sears Roebuck and Co., 99-669 (La.App. 3 Cir. 11/3/99), 748 So.2d 61,

writ denied, 99-3386 (La. 2/4/00), 754 So.2d 232.

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DECREE

The judgment of the trial court in favor of Wal-Mart Louisiana, LLC is

reversed. All costs of this appeal are taxed to Appellee, Wal-Mart Louisiana, LLC.

REVERSED.

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