Richard Fountain v. Wal-Mart Stores, Inc. and/or Wal-Mart Louisiana, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-669

RICHARD FOUNTAIN

VERSUS

WAL-MART STORES, INC. AND/OR
WAL-MART LOUISIANA, LLC

**********

ON APPEAL FROM
THE NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 260,183
HONORABLE GEORGE C. METOYER, DISTRICT JUDGE

**********

JONATHAN W. PERRY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Van H. Kyzar, and
Jonathan W. Perry, Judges.

AFFIRMED.

Brian M. Caubarreaux
Emily Gremillion
Wesley K. Elmer
Brian Caubarreaux and Associates
144 W. Tunica Drive
Marksville, LA 71351
(318) 253-0900
COUNSEL FOR APPELLANT:
Richard Fountain

R. O’Neal Chadwick, Jr.
Gregory B. Odom, II
Sara B. Dantzler
CHADWICK & ODOM, LLC
P. O. Box 12114
Alexandria, LA 71315
(318) 445-9899
COUNSEL FOR APPELLEE:
WAL-MART STORES, INC. AND/OR
WAL-MART LOUISIANA, LLC

PERRY, Judge.

Plaintiff, Richard Fountain (hereinafter “Mr. Fountain”), appeals a summary

judgment in favor of defendant, Wal-Mart Louisiana, LLC (hereinafter “Wal-

Mart”), dismissing his negligence claim. For the reasons stated herein, we affirm.

FACTS AND PROCEDURAL BACKGROUND

This case involves Mr. Fountain’s slip and fall on December 3, 2016, at the

Wal-Mart store on North Mall Drive in Alexandria, Louisiana. Rain was falling at

the time Mr. Fountain and his wife Candice (hereinafter “the Fountains”) entered the

store. After the Fountains shopped for groceries for thirty to forty minutes, they

proceeded to the Garden Center, looking for charcoal lighter fluid. When they could

not find it, Mr. Fountain approached the cashier and asked where the lighter fluid

might be found. The cashier told Mr. Fountain that the lighter fluid had been moved

to the other side of the store. When Mr. Fountain turned to leave the Garden Center,

he slipped and fell in a puddle of water.

On the date of the accident, Mary Jo Justice (hereinafter “Ms. Justice”), the

Garden Center manager, was in the area where Mr. Fountain fell. Although she did

not witness the accident, she saw Mr. Fountain lying on the ground in the interior

part of the Garden Center between the registers and the entrance. She informed

Tiffany Mason Melvin (hereinafter “Ms. Melvin”), an assistant manager at the Wal-

Mart store, of Mr. Fountain’s fall.

When Ms. Melvin arrived at the scene of the fall, she saw Mr. Fountain on the

ground, approximately ten to twelve feet from the Garden Center registers and away

from the entrance. According to Ms. Melvin, Mr. Fountain told her he had seen

someone shake an open umbrella in the area of the fall. Ms. Melvin identified the

puddle of water involving Mr. Fountain’s fall as being in an area approximately six

to eight feet in one direction and eight to ten feet in the other direction, and there

were other water drippings scattered about that area of the store. Ms. Melvin

estimated that the puddle in which Mr. Fountain fell was about the size of a football

and contained about a quarter to a half cup of water.

Mr. Fountain testified that the water was clear, that he had not walked in that

area before the fall, and that he had not seen the water before he fell. He estimated

the puddle was eight inches by a foot and a half. Although Mr. Fountain did not

examine the puddle for other footprints or buggy tracks because he passed out in the

fall, he did state there was a skid mark through it where his foot slipped.

According to Ms. Melvin, Mr. Fountain informed her that when he asked the

unidentified woman to close her umbrella, the woman told him the umbrella was

broken and could not close. Ms. Justice gave a nuanced version, stating at first that

Mr. Fountain said he walked behind a woman with an opened umbrella and that she

shook it inside the store; she then stated that Mr. Fountain told her the water in which

he slipped was from this woman’s umbrella. Mr. Fountain denied the assertions Ms.

Melvin and Ms. Justice made about where he encountered this woman with the

umbrella and further denied that it was the water from the unidentified woman’s

umbrella that formed the puddle where he fell. Rather, he asserted that the woman

was farther inside the store when he addressed her.

Mr. Fountain filed suit against Wal-Mart. After Wal-Mart answered the suit

and both parties conducted discovery, Wal-Mart moved for summary judgment. In

its motion for summary judgment, Wal-Mart asserted that Mr. Fountain failed to

present evidence that it created the condition responsible for his fall or that it had

constructive notice of it. Mr. Fountain opposed Wal-Mart’s motion for summary

judgment, contending that although Wal-Mart may not have initially caused the

slippery condition, it was immediately aware of the condition and failed to remedy

it. The trial court granted Wal-Mart’s motion for summary judgment,

2

acknowledging the almost impossible conditions for a plaintiff to prove actual and

constructive notice in suits against merchants for falls on their premises and the

favored position of summary judgment.

Mr. Fountain devolutively appeals, urging two assignments of error. He

contends that the trial court erred: (1) when it granted Wal-Mart’s motion for

summary judgment on liability where the evidence presented in opposition to the

motion revealed that genuine issues of material fact exist regarding Wal-Mart’s

actual and constructive notice of the water on the floor, the amount of time the water

was present on the floor, and its failure to follow its own policies and procedures

which led to the existence of and failure to remedy the condition that caused his fall;

and (2) when it considered the affidavit of Ms. Justice and granted the motion for

summary judgment filed by Wal-Mart, as that affidavit was not based on the affiant’s

own personal knowledge and contradicted her sworn deposition testimony.

DISCUSSION

Appellate courts review summary judgments de novo using the same criteria

that govern the trial court’s consideration of whether summary judgment is

appropriate, i.e., whether there is any genuine issue of material fact and whether the

movant is entitled to judgment as a matter of law. Samaha v. Rau, 07-1726 (La.

2/26/08), 977 So.2d 880. On a motion for summary judgment, the mover bears the

burden of proof; however, if the mover will not bear the burden of proof at trial on

the issue before the court on the motion for summary judgment, the mover’s burden

on the motion does not require that all essential elements of the adverse party’s

claim, action, or defense, be negated. Instead, the mover must point out to the court

the absence of factual support for one or more elements essential to the adverse

party’s claim, action, or defense. Thereafter, the adverse party must produce factual

evidence sufficient to establish the existence of a genuine issue of material fact or

3

that the mover is not entitled to judgment as a matter of law. La.Code Civ.P. art.

966(D)(1).

To reverse the trial court’s decision, this court would have to find on de novo

review that the record reveals a genuine issue of material fact which precludes

summary judgment as a matter of law. White v. Louisiana Dep’t of Transp. & Dev.,

18-741 (La.App. 3 Cir. 3/13/19), 269 So.3d 1031, writ denied, 19-0572 (La.

5/28/19), 273 So.3d 311. A fact, for summary judgment purposes, “is material if it

potentially insures or precludes recovery, affects a litigant’s ultimate success, or

determines the outcome of the legal dispute.” Hines v. Garrett, 04-806, p. 1 (La.

6/25/04), 876 So.2d 764, 765 (per curiam). An issue, for summary judgment

purposes, is genuine if “reasonable persons could disagree; if reasonable persons

could reach only one conclusion, there is no need for trial on that issue and summary

judgment is appropriate.” Id. at 765-66.

Despite the legislative mandate that summary judgment procedure is now

favored, factual inferences reasonably drawn from the evidence must be construed

in favor of the party opposing the motion, and all doubt must be resolved in the

opponent’s favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049. See

also Independent Fire Ins. Co. v. Sunbeam Corp., 99–2181, 99–2257, p. 17 (La.

2/29/00), 755 So.2d 226, 236 (noting the court “must draw those inferences from the

undisputed facts which are most favorable to the party opposing the motion”).

A genuine issue is a triable issue. Brown v. Amar Oil Co., 11-1631 (La.App.

1 Cir. 11/8/12), 110 So.3d 1089. Because it is the applicable substantive law that

determines materiality, whether a particular fact in dispute is material can be seen

only in light of substantive law applicable to the case. Hall v. Our Lady of the Lake

R.M.C., 06-1425 (La.App. 1 Cir. 6/20/07), 968 So.2d 179. Thus, to determine

4

whether the trial court’s grant of summary judgment was proper, this court must look

to the applicable substantive law.

In Louisiana, “every act . . . of man that causes damage to another obliges him

by whose fault it happened to repair it.” La.Civ.Code art. 2315(A). Under

Louisiana’s “standard negligence analysis”—the “duty-risk analysis”—a plaintiff

must prove five elements: first, that the defendant had a duty to conform his conduct

to a specific standard (duty); second, that the defendant’s conduct failed to conform

to the appropriate standard (breach); third, that the defendant’s substandard conduct

was a cause in fact of the plaintiff’s injuries (cause in fact); fourth, that the

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

cause); and fifth, that the plaintiff suffered actual damages (damages). Lemann v.

Essen Lane Daiquiris, Inc., 05-1095 (La. 3/10/06), 923 So.2d 627.

However, for “merchants” like Wal–Mart, La.R.S. 9:2800.6 alters this

analysis. See Thompson v. Winn–Dixie Montgomery, Inc., 15-577 (La. 10/14/15),

181 So.3d 656. Merchants “owe[ ] a duty . . . to exercise reasonable care to keep

[their] aisles, passageways, and floors in a reasonably safe condition,” which

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

which reasonably might give rise to damage.” La.R.S. 9:2800.6(A). When someone

sues a merchant for damages “as a result of an injury . . . or loss sustained because

of a fall due to a condition existing in or on [the] premise,” the plaintiff must prove

“in addition to all other elements of [the] cause of action”:

(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[; and]

(3) The merchant failed to exercise reasonable care.

5

La.R.S. 9:2800.6(B); see also Thompson, 181 So.3d at 662. The failure to prove any

of the requirements of La.R.S. 9:2800.6(B) is fatal to the claimant’s cause of action.

White v. Wal-Mart Stores, Inc., 97-393 (La. 9/9/97), 699 So.2d 1081.

To prove that a merchant had “constructive notice” of a condition1 before the

injury-causing occurrence, the plaintiff must “prove[ ] 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 other words, the plaintiff

“must come forward with positive evidence showing that the damage-causing

condition existed for some period of time, and that such time was sufficient to place

the merchant defendant on notice of its existence.” White, 699 So.2d at 1082.

“Though there is no bright line time period . . . [a] claimant who simply shows that

the condition existed” without also 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.” Id. at 1084. According to the supreme court, “[t]he statute

does not allow for the inference of constructive notice absent some showing of this

temporal element.” Id. “Because it is the claimant’s burden to prove [the spill’s]

existence for some period of time, the absence of evidence . . . is fatal to the

claimant’s cause of action.” Id. at 1086.

In White, 699 So.2d 1081, Kennedy v.Wal-Mart Stores, Inc., 98-1939 (La.

4/13/99), 733 So.2d 1188, and Babin v. Winn-Dixie Louisiana, Inc., 00-078 (La.

5/30/00), 764 So.2d 37, the supreme court addressed the “temporal” element of the

statute, which requires that the plaintiff show that the condition existed for “some

period of time.” These Courts held that the plaintiffs could not meet their burden of

proof because they presented no evidence at all of this critical temporal element. See

1
Mr. Fountain advanced no argument that Wal-Mart created the condition that caused the
damage. For a recent case that addresses such an argument see Lewis v. Wal-Mart Stores, Inc.,
53,207 (La.App. 2 Cir. 1/15/20), ___So.3d ___.
6

White, 699 So.2d at 1086 (“Plaintiff presented absolutely no evidence that the liquid

was on the floor for any length of time.”); Babin, 764 So.2d at 40 (“Despite his

speculation that the condition may have existed for some period prior to his fall,

plaintiff is clearly unable to make a positive showing.”); Kennedy, 733 So.2d at 1191

(“[P]laintiff presented absolutely no evidence as to the length of time the puddle was

on the floor before his accident.”). These courts, therefore, did not reach the second

issue outlined in La.R.S. 9:2800.6(C)(1) of whether the condition “would have been

discovered if the merchant had exercised reasonable care.” According to the

supreme court in White, “[w]hether the period of time is sufficiently lengthy that a

merchant should have discovered the condition is necessarily a fact question.” White,

699 So.2d at 1084.

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

and circumstantial evidence. Birdsong v. Hirsch Meml. Coliseum, 39,101 (La.App.

2 Cir. 12/15/04), 889 So.2d 1232; Lewis v. Jazz Casino Co., L.L.C., 17-0935 (La.

App. 4 Cir. 4/26/18), 245 So.3d 68, 74–75, writ denied, 28-0757 (La. 9/21/18), 252

So.3d 877. Thus, “[a] plaintiff is not required to prove by eyewitness testimony that

the hazardous condition existed for a certain number of minutes prior to the fall.”

Beggs v. Harrah’s New Orleans Casino, 14-0725, p. 10 (La.App. 4 Cir. 1/21/15),

158 So.3d 917, 923; see also Davis v. Cheema, Inc., 14-1316 (La.App. 4 Cir.

5/22/15), 171 So.3d 984. Circumstantial evidence is “evidence of one fact, or of a

set of facts, from which the existence of the fact to be determined may reasonably

be inferred.” Smith v. Toys “R” Us, Inc., 98-2085, p. 7 (La. 11/30/99), 754 So.2d

209, 213.

Mr. Fountain makes a threefold argument as to there being a genuine issue of

material fact relative to Wal-Mart’s knowledge of the presence of the water.

Initially, he contends a Wal-Mart employee told him the water on the floor where he

7

slipped came from a lady who came in and shook a broken umbrella in the store; this

Mr. Fountain contends shows Wal-Mart’s knowledge of the water prior to his fall.

Initially, we note that Mr. Fountain’s self-serving depositional testimony and his

reliance on a hearsay statement from an unidentified Wal-Mart worker is insufficient

to establish Wal-Mart’s constructive notice. Brown v. Jazz Casino Co., LLC, 18-

913 (La.App. 4 Cir. 5/1/19), ___ So.3d ___. Moreover, “[m]ere conclusory

allegations, improbable inferences and unsupported speculation will not support a

finding of a genuine issue of material fact.” Sears v. Home Depot, USA, Inc., 06-

201, p. 12 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228, writ denied, 06-2747

(La. 1/26/07), 948 So.2d 168. Even if contained in a deposition, such inferences,

allegations and speculation are insufficient to satisfy the opponent’s burden of proof.

Richard v. Liberty Mut. Ins. Co., 13-26 (La.App. 3 Cir. 10/9/13), 123 So.3d 345.

Thus, Mr. Fountain’s argument in this regard lacks merit.

Next, Mr. Fountain argues that Ms. Melvin’s approximation of the large area

dotted with water, six to eight feet in one direction and eight to ten feet in the other,

indicates that Wal-Mart knew or should have known of the water on the floor before

the accident. Evidence that the hazard was there at the time of the fall is insufficient

to carry a plaintiff’s burden of proof. Bassett v. Toys “R” Us Delaware, Inc., 36,434

(La.App. 2 Cir. 12/30/02), 836 So.2d 465. Furthermore, the store is under no

obligation to step up and explain; rather, an additional time period must be shown

by the plaintiff. Id. As observed in Kennedy, 733 So.2d at 1191, it is incumbent

upon the plaintiff to put forth “evidence as to the length of time the puddle was on

the floor before his accident.” Mr. Fountain’s sole observation of the puddle that

caused his fall was that it contained the skid mark of his foot as it slipped through it;

there was no evidence of water discoloration or the presence of buggy tracks through

8

the puddle from which the temporal requirement might be established. Thus, in light

of the jurisprudence, Mr. Fountain’s argument lacks merit.

Lastly, Mr. Fountain contends that video surveillance of the area where the

accident occurred revealed that numerous people came into the store from the rain

and that they could have tracked the water into the store during the forty minutes to

an hour prior to the accident. His argument continues that despite that, no Wal-Mart

employee addressed the water condition as required by the store’s own policies and

procedures. Accordingly, he argues that Wal-Mart’s knowledge of the rain and

shoppers entering the building established the temporal element needed to establish

constructive knowledge.

In support of his contention, Mr. Fountain relies primarily on four appellate

court cases, all involving rain: Ward v. ITT Specialty Risk Services, Inc., 31,990

(La.App. 2 Cir. 6/16/99), 739 So.2d 251, writ denied, 99-2690 (La. 11/24/99), 750

So.2d 987; Barton v. Wal-Mart Stores, Inc., 97-801 (La.App. 3 Cir. 12/10/97), 704

So.2d 361; Oalmann v. K-Mart Corp., 630 So.2d 911 (La.App. 4 Cir. 1993), writ

denied, 94-244 (La. 3/18/94), 634 So.2d 859; and Laborde v. Winn Dixie Louisiana,

Inc., 563 So.2d 994 (La.App. 4 Cir.), writ denied, 568 So.2d 1062 (La.1990).

From the outset, we find Ward, 739 So.2d 251, is distinguishable. Although

store policies and procedure for rainy days were an essential part of that case, those

issues addressed whether the plaintiff carried her burden of proving that the

defendant failed to exercise reasonable care. As noted in the appellate court

decision, it was “undisputed that the defendant had actual notice of the condition

that caused the damage, prior to the occurrence” as “shown by the manager’s

admission that he saw the water at the front of the store and called for a mop to clean

it up just prior to the accident.” Id. at 255. Similarly, in Barton, 704 So.2d 361, and

Laborde, 563 So.2d 994, although constructive notice was discussed in passing, the

9

crucial issue of these two cases was whether the plaintiff’s injuries were caused by

an unreasonably dangerous condition in the store. Thus, they, too, are

distinguishable.

Mr. Fountain’s reliance on Oalmann, 630 So.2d 911, requires analysis and

exposition. In Oalmann, the fourth circuit affirmed judgment in favor of an injured

plaintiff who slipped and fell, claiming the merchant had constructive notice of a

puddle of rainwater on the store’s entrance floor. In Oalmann, 630 So.2d at 913, the

Fourth Circuit, addressing whether the “merchant either created or had actual or

constructive notice of the condition which caused the damage, prior to the

occurrence[,]” stated:

Mrs. Oalmann testified that it had been raining on the day of her fall.
K–Mart does not controvert this fact.... Thus, K–Mart did have
knowledge of the weather conditions on the day of the accident.
Consequently, K–Mart should have known that the rain would cause
the floor where the accident occurred to become wet and slippery. The
evidence does not clearly establish precisely how long the floor was
wet prior to Mrs. Oalmann’s fall. Considering the volume of business
conducted at a large retail store such as the K–Mart in Meraux and the
constant influx of customers, it is foreseeable that the floor near an
entrance would become wet, and thus slippery, in a relatively short
period of time. It is the opinion of the Court that the accumulation of
water at the entrance existed for such a time that K–Mart should have
discovered the danger. Given the totality of the circumstances, the
Court finds that K–Mart had the requisite constructive notice of the wet
floor which caused the fall.

When the Louisiana Supreme Court decided White, 690 So.2d 1081,2 it

expressly stated that it was not an impossible burden to require “the claimant prove

2
In White, the Louisiana Supreme Court overruled Welch v. Winn-Dixie Louisiana, Inc.,
94-2331 (La. 5/22/95), 655 So.2d 309. Welch was summarized in White, 699 So.2d at 1084, as
follows:

In Welch, this Court concluded that a claimant had carried her burden of
proving constructive notice by showing the absence of “written inspection
procedures,” the lack of “written documentation of the performance of
inspections,” and the lack of “company directives on a consistent inspection
policy,” and because the fact-finder could have disbelieved the defendant’s positive
evidence of the lack of a spill some minutes before the fall.

It then stated:
10

the condition existed for some time period prior to the fall.” Id.I at 1084. In

particular, it referred to Oalmann in a footnote as an “example . . . where the claimant

did carry the burden of showing actual or constructive notice.” See Id. at 1085, n. 4.

However, in Kennedy, 733 So.2d 1188, without any discussion of Oalmann,

the supreme court reversed a judgment in which the trial and appellate courts

determined that Wal-Mart had constructive notice. In making that determination,

the Kennedy court referenced the trial court’s reasons for judgment which stated:

In the case at bar this plaintiff has proved constructive, if not actual,
notice on the part of the defendant. When Mr. Kennedy got up from
the floor his clothing was wet thus indicating more than a small spot of
dampness. It was also raining that day. Since the customer service
manager and the cashier were within a few feet of where Mr. Kennedy
fell and it was raining that day, they knew or should have known that
wet footed customers were likely to create a hazard. They certainly
were in a better position to know than Mr. Kennedy, and they clearly
had a good close-up look at the area where he fell before he arrived
there.... [T]he court accepts the facts as testified to by the plaintiff’s
witnesses and finds that the plaintiff has made a prima facie case of
constructive notice.

Id. at 1190, n. 1. The Kennedy court rejected the trial and appellate courts’ reasoning

and then concluded, stating “plaintiff presented absolutely no evidence as to the

length of time the puddle was on the floor before his accident. Therefore, plaintiff

did not carry his burden of proving Wal-Mart’s constructive knowledge of the

condition.” Id. at 1191.

Although at first blush it would appear that the intermediate court’s decision

in Oalmann is factually analogous and supportive of Mr. Fountain’s argument, it is

Because La. R.S. 9:2800.6(B) clearly and unambiguously requires the
claimant to prove each of its three subsections with no shifting of the burden, and
because in order to prove constructive notice the statute clearly and unambiguously
requires that the claimant prove that the damage causing condition existed for some
period of time prior to the occurrence, we overrule Welch, 655 So.2d 309, which
allowed for a finding of constructive notice absent a showing that the condition
existed for some period of time prior to the occurrence and which provided for a
shifting of the burden to the defendant merchant to prove it exercised reasonable
care.

White, 699 So.2d at 1085.
11

evident that Kennedy, a case whose facts closely parallel those of Oalmann,

contradicts White’s earlier footnoted reference to Oalmann as an example of a

plaintiff who carried the burden of showing actual or constructive notice. Clearly,

under Kennedy, any evidence that it was raining, that an area in which a fall occurred

was visible to store personnel, and/or that Wal-Mart should have foreseen the hazard

created by rain puddles at or near the entrance of this high volume store because it

knew it was raining, is insufficient to support a finding that it had constructive notice.

See Kennedy, 733 So.2d 1188; Alexander v. Wal-Mart Stores, Inc., 96-1598

(La.App. 3 Cir. 2/4/98), 707 So.2d 1292, writ denied, 98-572 (La. 4/24/98), 717

So.2d 1169 (employee “greeter” standing in entryway in rainy weather and

intermittently dry-mopping are insufficient to infer actual or, absent time evidence,

constructive notice of dangerous condition). Similarly, even the lack of a specific

plan to warn customers of a wet floor is irrelevant when the plaintiff fails to produce

evidence that defendant had any notice of the liquid’s presence on the floor prior to

the fall. Boeshans v. Petsmart, Inc., 06-606 (La.App. 5 Cir. 1/16/07), 951 So.2d

414. Simply stated, for reasons addressed in Kennedy, our de novo review of the

record reveals Mr. Fountain failed to present evidence as to the length of time the

puddle was on the floor prior to the accident. Therefore, he did not carry his burden

of proving that Wal-Mart had constructive knowledge of the condition.

For the foregoing reasons, we find the trial court properly granted summary

judgment in favor of the defendant, Wal-Mart, dismissing the suit of Mr. Fountain

with prejudice. Costs of this appeal are assessed to Mr. Fountain.

AFFIRMED.

12