Kimberly Rogers v. Walk-On's Bistreaux and Bar

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-181

KIMBERLY ROGERS

VERSUS

WALK-ON’S BISTREAUX & BAR, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 263,573
HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret,
Judges.

REVERSED.

Brian Caubarreaux & Associates
Brian M. Caubarreaux
Eugene A. Ledet Jr.
Ethan E. Caubarreaux
Patrick B. Sadler
David A. Johnson
2204 MacArthur Drive
Alexandria, LA 71303
(318) 442-0900
COUNSEL FOR PLAINTIFFF/APPELLANT:
Kimberly Rogers

Keiser Law Firm, P.L.C.
Randall B. Keiser
Matthew L. Nowlin
Post Office Box 12358
Alexandria, LA 71315-2358
(318) 443-6168
COUNSEL FOR DEFENDANTS/APPELLEES:
All-In Restaurant Group, LLC
State Farm Fire and Casualty Company

Pickett, J.

The plaintiff appeals the trial court‟s grant of the defendants‟ motion for

summary judgment and dismissal of her claims for injuries she allegedly suffered

when she slipped and fell at a restaurant owned and operated by one of the

defendants. We reverse the trial court‟s judgment.

FACTS

On January 28, 2018, Kimberly Rogers and her family went to Walk-On‟s

restaurant in Alexandria for lunch. After being seated, Ms. Rogers stepped from

their table with her grandson to bring him to the restroom. She had never been to

the restaurant before. Initially, she looked in one direction to find the restroom but

was redirected to another area of the restaurant by an employee who was placing a

mat on a ramp. As instructed, Ms. Rogers turned and walked in the direction

instructed by the employee. When approaching stairs leading to the restroom,

Ms. Rogers slipped and fell injuring her back and neck.

Ms. Rogers filed suit against Walk-On‟s owner All-In Restaurant Group,

LLC and its insurer, State Farm Fire and Casualty Company, seeking damages for

her injuries. In her petition, Ms. Rogers alleged that she slipped and fell due to a

“foreign substance located on the floor.” After filing an answer, the defendants

initiated discovery and deposed Ms. Rogers on August 6, 2019. Thereafter, they

filed a motion for summary judgment seeking dismissal of Ms. Rogers‟ claims,

asserting that she cannot satisfy her burden of proving that they are liable to her

under La.R.S. 9:2800.6, commonly referred to as the merchant liability statute.

The defendants‟ motion for summary judgment was set for hearing on

February 10, 2020. Ms. Rogers did not file an opposition and did not attend the

hearing on the motion. After considering the motion and the defendants‟

arguments, the trial court granted the motion and issued a judgment dismissing

Ms. Rogers‟ claims. After receiving a copy of the judgment, Ms. Rogers filed a

motion to have the judgment set aside because she did not receive notice of the

hearing thirty days before it was conducted as required by La.Code Civ.P. art.

966(C)(1)(b). The trial court granted the motion, and the hearing on the motion for

summary judgment was re-set.

Ms. Rogers then filed an opposition to the motion for summary judgment to

which she attached a complete copy of her deposition and two affidavits. The

defendants responded with a motion to strike the two affidavits, urging they do not

satisfy the requirements of La.Code Civ.P. art. 967. At the conclusion of the

second hearing, the trial court denied the motion to strike Ms. Rogers‟ two

affidavits. After considering counsels‟ final arguments, the trial court granted

summary judgment in favor of the defendants. Ms. Rogers appealed.

ASSIGNMENTS OF ERROR

Ms. Rogers assigns error with the trial court‟s judgment granting the

defendants‟ motion for summary judgment. The defendants answered the appeal,

urging that the trial court erred in admitting Ms. Rogers‟ affidavits into evidence.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo, using the same

criteria as the trial court. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670 (La.

2/26/08), 977 So.2d 839. To succeed on a motion for summary judgment, the

moving party must show that there are no genuine issues of material fact and that

he “is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3). “A

fact is „material‟ when its existence or nonexistence may be essential to plaintiff‟s

cause of action[.]” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.

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7/5/94), 639 So.2d 730, 751 (citation omitted). For summary judgment purposes, a

genuine issue of material fact is “one as to which reasonable persons could

disagree.” Estate of Belaire v. Crawfish Town USA, 15-180, p. 12 (La.App. 3 Cir.

12/9/15), 182 So.3d 1093, 1100 (citation omitted).

“The burden of proof rests with the mover.” La.Code Civ.P. art. 966(D)(1).

If, however, “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 is not required

“to negate all essential elements of the adverse party‟s claim, action, or defense[.]”

Id. Instead, the mover need only show “the absence of factual support for one or

more elements essential to the adverse party‟s claim, action, or defense.” Id. The

adverse party must then “produce factual support sufficient to establish the

existence of a genuine issue of material fact or that the mover is not entitled to

judgment as a matter of law.” Id.

When considering a motion for summary judgment, courts are not to

evaluate the weight of the evidence but to determine whether there is a genuine

issue of triable fact. Maggio v. Parker, 17-1112 (La. 6/27/18), 250 So.3d 874.

Summary judgments are favored; however, “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, p.

2 (La. 12/8/00), 775 So.2d 1049, 1050.

DISCUSSION

Ms. Roger‟s burden of proving her claims is set forth in La.R.S. 9:2800.6,

which provides, in pertinent part:

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

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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.

Merchants have an affirmative duty to keep their premises in a safe

condition. La.R.S. 9:2800.6(A). Nonetheless, “merchants are not insurers of their

patrons‟ safety,” and customers have a concurrent “duty to use ordinary care to

avoid injury.” Marks v. Schultz, 20-197, p. 7 (La.App. 1 Cir. 12/10/20), 316 So.3d

534, 539.

As outlined in La.R.S. 9:2800.6(B), the plaintiff in a slip-and-fall case bears

a heavy burden. Thibodeaux v. Circle K Stores, Inc., 20-540 (La.App. 3 Cir.

5/5/21), 318 So.3d 465. First, the plaintiff must establish that a condition of the

merchant‟s premises presented an unreasonable risk of harm, which can be done by

showing she slipped and fell due to “a foreign substance on a floor or an

unreasonably slippery condition.” Burnett v. M & E Food Mart, Inc. No. 2, 00-

350, p. 3 (La.App. 3 Cir. 11/15/00), 772 So.2d 393, 396, (footnote omitted) writ

denied, 00-3425 (La. 2/16/01), 786 So.2d 101. This requires the plaintiff to make

“a positive showing of the existence of the condition prior to the fall” and that the

condition “existed for some time before the fall” in order to prove the owner had

constructive notice of the condition as required by La.R.S. 9:2800.6(B)(2). White

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

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plaintiff need not make a specific showing in minutes or hours as to how long the

condition existed prior to the fall to satisfy this time requirement. Id.

In their motion for summary judgment, the defendants urge that Ms. Rogers

failed to show she can satisfy her burden of proof under La.R.S. 9:2800.6 because

she cannot show that there was a foreign substance on the floor which caused her

to slip and fall and Walk-On‟s caused a foreign substance to be on the floor or had

actual or constructive notice of any foreign substance being on the floor before she

fell as required by La.R.S. 9:2800.6.

The defendants supported their motion with excerpts of Ms. Rogers‟

deposition and the affidavit of Ricky Tompkins, All-In‟s manager for the

Alexandria Walk-On‟s. In his affidavit, Mr. Tomkins averred, in part:

(1) The interior premises of the restaurant were inspected prior to
opening;

(2) At no point prior to opening did any person report any issue or
problems with the area where Kimberly Rogers fell; and

(3) No manager has any recollection of any foreign substance report
prior to the incident involving Kimberly Rogers.

The defendants urge that the trial court erred in denying their motion to

strike the affidavits supporting Ms. Rogers‟ opposition to their motion because her

affidavit is inconsistent with her deposition testimony1 and Ms. Hart‟s affidavit is

not based on personal knowledge.

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An affidavit that is inconsistent with the affiant‟s deposition testimony and offered only
after a motion for summary judgment has been filed is insufficient to create a genuine issue of
material fact if no justification for the inconsistency is offered. Hutchinson v. Knights of
Columbus, Council No. 5747, 03-1533 (La. 2/20/04), 866 So.2d 228.

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Personal Knowledge

During the hearing on the motion for summary judgment, counsel for

Ms. Rogers urged that her affidavit need not be addressed because Casi Hart‟s

affidavit contradicts Mr. Tompkins‟ affidavit; therefore, a genuine issue of material

fact exists which defeats the defendants‟ motion for summary judgment.

Accordingly, we begin with the defendants‟ complaint that the trial court erred in

allowing Casi Hart‟s affidavit to be introduced into evidence.

Louisiana Code of Civil Procedure 967(A) requires that affidavits submitted

in support or opposition to a motion for summary judgment be made on personal

knowledge, set forth facts that are admissible in evidence, and show affirmatively

that the affiant is competent to testify to the matters addressed in the affidavit.

Recently, in Gypsum Subfloors, Inc. v. DDG Construction, Inc., 19-877, pp.

6-7 (La.App. 3 Cir. 7/8/20), 304 So.3d 573, 577 (internal case citations omitted),

this court addressed the concept of personal knowledge required for affidavits,

explaining:

In the context of summary judgment procedure, an affidavit
must be based on personal knowledge, set forth facts admissible in
evidence, and affirmatively show that the affiant is competent to
testify to the matters to which he attests. La.Code Civ.P. art. 967(A).
Personal knowledge is based on what the affiant actually saw or
heard, as opposed to what he learned second hand from another
source. Conclusory statements about an affiant‟s competency or
personal knowledge do not satisfy La.Code Civ.P. art. 967(A).

[Louisiana Code of Civil Procedure] Article 967‟s
requirement of personal knowledge is not satisfied by the
mere statement that the affidavit is made on “personal
knowledge” since that would tend to make the affiant
both judge and witness. The requirement that the
affidavit show affirmatively that the affiant is competent
to testify to the matters stated therein enables the court to
make a determination as to the competency of the affiant
as a witness to the material fact at issue. An affirmative
showing of competency cannot be established without a

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predicate showing of personal knowledge. Otherwise,
personal knowledge may be based on hearsay or other
incompetent evidence.

Unifund CCR Partners v. Perkins, 12-1851, p. 7 (La.App. 1 Cir.
9/25/13), 134 So.3d 626, 631-32.

Trial courts should not consider any statement made in an affidavit that is not

based on the affiant‟s personal knowledge when deciding a motion for summary

judgment. Fid. Bank v. Vaughn, 19-47 (La.App. 3 Cir. 6/5/19), 274 So.3d 91.

Ms. Hart does not state affirmatively in her affidavit that it is based on her

personal knowledge, but she states that she was employed by Walk-On‟s and

working on the date and at the time Ms. Rogers claims to have been injured.

Continuing, she outlines that she reported to work before the restaurant opened and

“notice[d],” the floors were “wet and slippery with what looked like a thin, discreet

layer of water.” She further states that “my manager told the staff the floors were

slick and to be careful when we were walking” and that “we were going to put

mats down for the customers to walk across until the floors dried.” Proceeding,

Ms. Hart averred that “[b]efore anyone put mats on the floors[,]” the restaurant

allowed customers to enter and that “we started seating customers.” She explained

that when customers entered the restaurant, “no mats were on the floors, no wet

floors [sic] signs were put out on the floors[;]” they “were not told that the floors

were wet”; and were not given any “warning of any kind that the floors were wet

and slippery.” Lastly, Ms. Hart states that the path Ms. Rogers took to the

bathroom included stairs which were “wet and slick” like the floors of the

restaurant and Ms. Rogers slipped and fell when she reached “the edge of the top

stair[.]”

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The defendants argue Ms. Hart failed to state in her affidavit that she is the

age of majority rendering her affidavit inadmissible. This argument disregards that

Ms. Hart states her birth date which shows she was twenty years of age on the date

of Ms. Rogers‟ accident. The defendants further argue that Ms. Hart‟s affidavit is

inadmissible because specific statements she makes therein are not established by

the evidence or are opinions that she is not competent to render.

As explained in Gypsum Subfloors, 304 So.3d 573, the content of the

affidavit determines the matters about which the affiant is competent to testify.

Ms. Hart‟s affidavit affirmatively shows that she has personal knowledge of Walk-

On‟s floors being wet when she arrived at work before the restaurant opened and at

the time of Ms. Rogers‟ fall, as well as management‟s knowledge of the floors

being wet at that time. Accordingly, her affidavit shows that she is competent to

testify to those facts. As the defendants argue, however, Ms. Hart‟s affidavit does

not show that she is qualified to opine as to what caused the floors to be wet and

slippery and that statement cannot be considered when deciding the merits of the

defendants‟ motion for summary judgment.

Open and Obvious

The defendants next contend that Walk-On‟s wet floors were “open and

obvious” and that Ms. Rogers‟ failure to observe the hazard the floors presented

and proceed accordingly entitles them to summary judgment. “A trial court can

determine whether a condition is „open and obvious‟ in a summary judgment

motion.” Thibodeaux, 318 So.3d at 469.

In Minix v. Pilot Travel Centers, LLC, 18-1197, p. 5 (La.App. 1 Cir.

5/31/19), 277 So.3d 810, 813, writ denied, 19-1074 (La. 10/8/19), 280 So.3d 149,

the court held that “a defendant generally does not have a duty to protect against

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that which is obvious and apparent.” The court explained: “An alleged hazard is

considered obvious and apparent if it is open and obvious to everyone who may

potentially encounter it. The open and obvious inquiry thus focuses on the global

knowledge of everyone who encounters the defective thing, not the victim‟s actual

or potentially ascertainable knowledge.” Id. at 813-14 (citations omitted). The

court determined that summary judgment can be granted where “no legal duty is

owed because the condition encountered is obvious and apparent to all and, thus,

not unreasonably dangerous.” Id. at 277 So.3d at 814.

Mr. Tompkins‟ affidavit states that Walk-On‟s premises were inspected

twice daily and that he did not receive any reports of “spills or food,” indicating

Walk-On‟s floors were dry and clean of any foreign substance. Ms. Hart‟s

affidavit contradicts these statements, stating the floors were wet and slippery.

Being presented with these contradictory attestations as to the condition of Walk-

On‟s floors before Ms. Rogers‟ accident, this court cannot conclude that the

condition is open and obvious without weighing the evidence which is prohibited

on summary judgment.

Summary Judgment

Mr. Tompkins‟ and Ms. Hart‟s affidavits show that genuine issues of

material fact exist as to whether: (1) Walk-On‟s floors were dry and clean without

any foreign substance where Ms. Rogers slipped and fell or wet and slippery; (2)

Walk-On‟s had knowledge that its floors were wet and slippery before opening to

serve customers; (3) Mr. Tompkins instructed Walk-On‟s employees to be careful

and put down floor mats; and (4) Walk-On‟s floors presented an open and obvious

condition that Ms. Rogers should have seen before she slipped and fell. These

genuine issues of material fact must be resolved before the merit of Ms. Rogers‟

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claim that Walk-On‟s floors presented an unreasonable risk of harm due to the

presence of a foreign substance or an unreasonably slippery surface can be

determined. Accordingly, the trial court erred in granting summary judgment in

favor of the defendants.

DISPOSITION

The trial court‟s judgment granting judgment in favor of All-In Restaurant

Group, LLC and State Farm Fire and Casualty Company dismissing Kimberly

Rogers‟ claims is reversed. All costs of this appeal are assessed to All-In

Restaurant Group, LLC and State Farm Fire and Casualty Company.

REVERSED.

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