Demond Thibodeaux v. Circle K. Stores, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-540

DEMOND THIBODEAUX

VERSUS

CIRCLE K STORES, INC.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20185929
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Charles G.
Fitzgerald, Judges.

AFFIRMED.

Bart Bernard
Meagan Smith
Bart Bernard Personal Injury
1031 Camellia Blvd.
Lafayette, LA 70508
(337) 298-2278
COUNSEL FOR PLAINTIFF/APPELLANT:
Demond Thibodeaux

D. Scott Rainwater
J. David Harpole
Taylor, Wellons, Politz & Duhe, APLC
4041 Essen Lane, Suite 500
Baton Rouge, LA 70809
(225) 387-9888
COUNSEL FOR DEFENDANT/APPELLEE:
Circle K Stores, Inc.

GREMILLION, Judge.

The plaintiff/appellant, Demond Thibodeaux, appeals the trial court’s grant of

summary judgment in favor of the defendant/appellee, Circle K Stores, Inc. For the

following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 21, 2018, Thibodeaux slipped and fell at a Lafayette Circle K on an

approximately 3-to-3 1/2-foot-long piece of plastic that had multiple price tags in it

which would normally be clipped on a metal display shelf. At the time of the fall,

the Circle K employee who was working was Kievontre Williams. Williams had

arrived for his shift about thirty minutes before Thibodeaux’s fall. The departing

employee whose shift had ended was Cass Jones. Thibodeaux filed suit against

Circle K on September 24, 2018. Circle K filed a motion for summary judgment on

the issue of liability on January 9, 2020. Following a June 1, 2020 hearing, the trial

court granted summary judgment in favor of Circle K finding that Thibodeaux could

not meet his burden under La.R.S. 9:2800.6. Thibodeaux timely appealed.

Although Thibodeaux’s brief fails to set forth an assignment of error, it is clear

that Thibodeaux believes the trial court erred in granting summary judgment in favor

of Circle K.

DISCUSSION

The law pertaining to summary judgment was discussed by the Louisiana

Supreme Court in its per curiam opinion in Hines v. Garrett, 04-806, p. 1 (La.

6/25/04), 876 So.2d 764, 765 (alteration in original):

We review a district court’s grant of summary judgment de novo,
viewing the record and all reasonable inferences that may be drawn
from it in the light most favorable to the non-movant. Summary
judgment is warranted only if “there is no genuine issue as to material
fact and [ ] the mover is entitled to judgment as a matter of law.”
La.Code Civ.Proc. art. 966(C)(1). In ruling on a motion for summary
judgment, the judge’s role is not to evaluate the weight of the evidence

or to determine the truth of the matter, but instead to determine whether
there is a genuine issue of triable fact. All doubts should be resolved in
the non-moving party’s favor.

“[F]acts are material if they potentially insure or preclude recovery, affect a

litigant’s ultimate success, or determine the outcome of the legal dispute.” Smith v.

Our Lady of the Lake Hosp., Inc., 93-2512, p.27 (La. 7/5/94), 639 So.2d 730,751,

(quoting South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.

1991), writs denied, 596 So.2d 211 (La.1992)(alteration in original). A genuine

issue is one as to which 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.

Whether a fact is material is determined in light of the relevant substantive

law. Weingartner v. La. IceGators, 02-1181 (La.App. 3 Cir. 4/17/03), 854 So.2d

898, writ denied, 03-1388 (La. 9/19/03), 853 So.2d 645.

In a slip-and-fall case, a plaintiff must prove all elements of a negligence

action (duty, breach, cause in fact, and damages), plus meet the requirements of

La.R.S. 9:2800.6:

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.
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(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.

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

Thus, Thibodeaux must prove that Circle K 1) created an unreasonable risk of

harm, 2) created the condition or had actual or constructive notice of it, and, 3) failed

to exercise reasonable care. Thibodeaux argues that there is a genuine issue of

material fact whether Jones either disregarded the price tag holder in her cleaning or

maybe even knocked it down, thus a Circle K employee knew it was on the ground.1

Thibodeaux claims that he has not had a chance to conduct adequate discovery by

deposing Jones.2

The trial court granted summary judgment for two reasons: it found that

Thibodeaux could not meet his burden of proving that Circle K had actual or

1
Jones is the Circle K employee who clocked out upon Williams’s arrival. According to
Williams, she mopped the store shortly before her departure.
2
We note that at the summary judgment hearing and now, on appeal, Thibodeaux claims
that he has not conducted adequate discovery and wants to depose Jones. This suit was filed in
September 2018 and plaintiff has had an excessively long time to conduct discovery of the
employee whose shift ended when Williams’s began.
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constructive notice of the plastic strip on the floor and, second, that he could not

prove that an unreasonably dangerous condition existed because a 3-to-3 1/2-foot-

long piece of plastic with price tag stickers in it is “open and obvious” to any

reasonable person who encounters it.

As we have noted previously, a plaintiff in a slip-and-fall case does bear a

difficult burden. Morrison v. Brookshire Grocery Co, Inc., 08-16 (La.App. 3 Cir.

5/14/08) (unpublished opinion). While circumstantial evidence can be offered to

prove that a certain condition existed in a store for a period of time, speculation and

conclusory accusations are insufficient. Id.

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
provide the condition existed for some time period prior to the fall.

White v. Wal-Mart Stores, Inc., 97-393, p. 4 (La. 9/9/97), 699 So.2d 1081, 1084-85.

Thibodeaux has provided no evidence whatsoever that Circle K knew the

price tag strip was on the floor or that the price tag strip was on the floor for a

sufficient period of time that Circle K should have had constructive notice of it. On

the contrary, the testimony of Williams is that he inspected the store by “walking the

aisles” within the thirty minutes prior to Thibodeaux’s arrival. He also testified that

he could see down the candy aisle from various vantage points in the store. An

unsupported accusation that Jones may have knocked the strip off while mopping is

simply insufficient to meet the burden of La.R.S. 9:2800.6. The mere existence of

the price tag strip on the floor of the Circle K is not sufficient to meet the notice

requirement of La.R.S. 9:2800.6. The burden remains with the plaintiff to prove

existence of the item on the floor for some time period. The argument that if

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Williams did not see anything then he must have been unreasonable in his actions

fails.

[D]efendant need not come forward with positive evidence of the
absence of the spill. Such would require the defendant to prove a
negative and is not within the clear and unambiguous language of the
statute. Furthermore, the lack of evidence showing the non-existence
of the spill is not evidence of the existence of the spill, but merely the
absence of evidence. Because it is the claimant’s burden to prove its
existence for some period of time, the absence of evidence cannot
support the claimant’s cause of action. Rather, the absence of evidence
is fatal to the claimant’s cause of action.

The statute is clear. To prove constructive notice, the claimant
must show that the substance remained on the floor for such a period of
time that the defendant merchant would have discovered its existence
through the exercise of ordinary care. Plaintiff presented absolutely no
evidence that the liquid was on the floor for any length of time. This
complete lack of evidence falls far short of carrying the burden of
proving that the liquid had been on the floor for such a period of time
that the defendant should have discovered its existence.

White, 699 So.2d at 1086.

Moreover, even if Thibodeaux had any evidence that the strip had been on the

floor for some period of time, we agree with the trial court that the nature of this

item was open and obvious and, therefore, not unreasonably dangerous. A trial court

can determine whether a condition is “open and obvious” in a summary judgment

motion. Minix v. Pilot Travel Centers, LLC, 18-1197 (La.App. 1 Cir. 5/31/19), 277

So.3d 810, writ denied, 19-1074 (La. 10/08/19), 280 So.3d 149. Summary judgment

is appropriately granted when there is no genuine issue that the condition did not

present an unreasonable risk of harm. Perrin v. Ochsner Baptist Med. Ctr., LLC,

19-265 (La.App. 4 Cir. 8/7/19), __ So.3d __, writ denied, 19-1557 (La. 11/25/19),

283 So.3d 495. Thibodeaux’s own deposition testimony relating to the surveillance

video established that he had traversed the candy aisle at least three times

successfully without tripping over the plastic strip. An ordinary reasonable person

should have easily avoided the 3-to-3 1/2-foot strip adorned with four-to-five price

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tags. Accordingly, there is no genuine issue of fact that Thibodeaux will be unable

to meet his burden of proof at trial.

CONCLUSION

Thibodeaux has failed to show he will be able to meet his burden of proving

that the strip presented an unreasonable risk of harm or that Circle K had notice of

its existence. Accordingly, we affirm the trial court’s grant of summary judgment

in favor of Circle K Stores, Inc. All costs of this appeal are assessed against the

plaintiff/appellee, Demond Thibodeaux.

AFFIRMED.

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