Demetria Joseph v. Lowe's Home Centers, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-694

DEMETRIA JOSEPH

VERSUS

LOWE’S HOME CENTERS, INC.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 136556
HONORABLE LEWIS H. PITMAN, JR., DISTRICT JUDGE

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GARY J. ORTEGO
JUDGE

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Court composed of Shannon J. Gremillion, Jonathan W. Perry, and Gary J. Ortego,
Judges.

REVERSED AND REMANDED.

Gabe A. Duhon
George A. Day
Gabe A. Duhon, L.L.C.
105 Tivoli Street
Abbeville LA 70511-0478
(337) 893-3423
COUNSEL FOR PLAINTIFF/APPELLANT:
Demetria Joseph

David Scott Rainwater
Lindsay C. Rabalais
Taylor Wellons, Politz
4041 Essen Lane, Suite 500
Baton Rouge, LA 70809
(225) 387-9888
COUNSEL FOR DEFENDANT/APPELLEE:
Lowe’s Home Centers, Inc.

ORTEGO, Judge.

Plaintiff, Demetria Joseph (Plaintiff), filed a personal injury suit against

Defendant, Lowe’s Home Centers, Inc. (Lowe’s), claiming that its negligence

resulted in personal injuries she sustained when a roll of vinyl flooring fell from a

shelf at its New Iberia store, injuring her leg and foot.

Following a hearing on July 19, 2022, and by Judgment signed August 25,

2022, the trial court granted Lowe’s motion for summary judgment, dismissing

Plaintiff’s claims against Lowe’s. Plaintiff appeals.

FACTS AND PROCEEDURAL HISTORY

This matter arose from an accident that occurred at a Lowe’s store location in

New Iberia on October 2, 2019, when Plaintiff was shopping for laminate flooring.

The laminate flooring rolls were initially arranged vertically with a wooden

beam running along the bottom of the shelf, along with a security chain, to maintain

the rolls in place.

After Plaintiff examined the flooring rolls, she selected one roll she was

interested in purchasing. However, Plaintiff could only find that one roll of the

selected flooring on the shelf, so she asked for assistance from a Lowe’s employee,

Kathryn Williams (“Ms. Williams,” or “employee”). On her first encounter with

Ms. Williams, Plaintiff asked if there were any more rolls of her chosen flooring in

stock, so Ms. Williams left the aisle to check the store’s online inventory database.

Learning there was only that one roll, Ms. Williams returned to the flooring aisle to

inform Plaintiff.

Plaintiff then asked Ms. Williams to check if any nearby Lowe’s locations had

the same rolls of flooring in stock, and Ms. Williams left the aisle a second time to

search the inventory database of other locations. Upon confirming online that none

of the nearby locations had these same rolls in stock, Ms. Williams returned to the

aisle a third time to inform Plaintiff and witnessed a heavy roll of laminated flooring

fall in a somewhat domino manner, with one roll hitting the Plaintiff’s left leg and

foot.

As a result of this incident, on October 1, 2020, Plaintiff filed her “Petition

for Damages.” On March 31, 2022, Lowe’s filed a Motion for Partial Summary

Judgment, as to liability, along with a Motion to Strike, and other motions. Plaintiff

filed her opposition to Defendant’s motions. On July 19, 2022, hearings were held

on all motions, after which the trial court granted Lowe’s Motion for Partial

Summary Judgment, dismissing, with prejudice, Plaintiff’s claims by Judgment

signed on August 25, 2022. Plaintiff timely filed her appeal.

ASSIGNMENTS OF ERROR

On appeal Plaintiff assigns four errors which we reproduce verbatim:

1. The trial court committed manifest error in failing to determine
that genuine issues of material fact existing precluding a summary
judgment determination in favor of Lowe’s Home Centers, Inc.

2. The trial court committed legal error in failing to find that Lowe’s
Home Centers, Inc. was negligent and violated its duty to keep its
aisles and passageways free from hazards and in a reasonably safe
condition.

3. The trial court committed legal error in finding that Appellant
Demetria Joseph caused the vinyl roll to fall.

4. The trial court committed legal error in granting Lowe’s Home
Centers, Inc.'s Motion for Summary Judgment.

STANDARD OF REVIEW- SUMMARY JUDGMENT

A court of appeal reviews summary judgments de novo, using the same

standard used by the trial court.

A summary judgment is reviewed on appeal de novo, with
the appellate court using the same criteria that govern the trial

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court’s determination 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. Guidry v. Brookshire Grocery Co., 19-1999 (La. 2/26/20),
289 So.3d 1026, 1027; Murphy v. Savannah, 2018-0991 (La.
5/8/19), 282 So.3d 1034, 1038; Wright v. Louisiana Power &
Light, 2006-1181 (La. 3/9/07), 951 So.2d 1058, 1070.

A motion for summary judgment “shall be granted if the
motion, memorandum, and supporting documents show that there
is no genuine issue as to material fact and that the mover is entitled
to judgment as a matter of law.” La. Code Civ. P. art. 966(A)(3);
Davis v. A Bar & Grill with a Bite, Inc., 2019-1928 (La. 3/16/20),
294 So. 3d 1051, 1052.

On a motion for summary judgment, the burden of proof
remains with the mover. However, if the moving party will not
bear the burden of proof on the issue at trial and points out an
absence of factual support for one or more elements essential to
the adverse party’s claim, action, or defense, then the non-moving
party must produce factual support sufficient to establish that he
will be able to satisfy his evidentiary burden of proof at trial. If the
opponent of the motion fails to do so, there is no genuine issue of
material fact and summary judgment will be granted. La. Code
Civ. P. art. 966(D)(1); Stephenson v. Bryce W. Hotard Sunbelt
Rentals, Inc., 2019-0478 (La. 5/20/19), 271 So.3d 190, 193;
Bufkin v. Felipe’s Louisiana, LLC, 2014-0288 (La. 10/15/14), 171
So.3d 851, 854; Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57
So.3d 1002, 1006.

Planchard v. New Hotel Monteleone, LLC, 21-347, pp. 2-3 (La. 12/10/21), 332 So.3d

623, 625 (emphasis added).

Thus, “[a] motion for summary judgment is a procedural device used when

there is no genuine issue of material fact for all or part of the relief prayed for by a

litigant.” Caldwell v. St. Charles Gaming Co., 19-1238, pp. 5-6 (La. 1/29/20), 347

So. 3d 562, 565–66, quoting Reynolds v. Bordelon, 14-2371, pp. 2-3 (La. 6/30/15),

172 So.3d 607, 610; La.Code Civ.P. art. 966.

“[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

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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.

DISCUSSION

Therefore, our appellate review starts with an examination of the relevant

substantive law that applies when a retail store customer asserts that injuries

produced by “falling merchandise” are caused by a merchant’s negligence.

Louisiana Revised Statutes 9:2800.6 (A), set forth below, establishes the duty

attached to a retailer, such as Lowe’s, in a “falling merchandise” case:

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.

See Planchard, 332 So.3d 625; Smith v. Toys “R” Us, Inc., 98-2085 (La. 11/30/99),

754 So.2d 209; Davis v. Wal-Mart Stores, Inc., 00-445 (La. 11/28/00), 774 So.2d

84.

Under La.R.S. 9:2800.6 (A) it is not enough for a plaintiff to establish at trial

that an accident occurred.

“[P]roof that an accident occurred does not fulfill the Plaintiff's
burden in a falling merchandise case. The Plaintiff must further
prove that the merchant’s negligence was a cause of the accident.”

Smith v. Toys “R” Us, Inc., 754 So. 2d 209, 214.

In a “falling merchandise” case under R.S. 9:2800.6(A), as in the
present case, the standard is that the merchant must use reasonable
care to keep its aisles, passageways, and floors in a reasonably safe
condition and free of hazards which may cause injury. Further, a

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Plaintiff who is injured by falling merchandise must prove, even
by circumstantial evidence, that a premise hazard existed. Id. Once
a Plaintiff proves a prima facie premise hazard, the defendant has
the burden to exculpate itself from fault by showing that it used
reasonable care to avoid such hazards by means such as periodic
clean up and inspection procedures. Id.

Davis v. Wal-Mart Stores, Inc., 774 So. 2d 84, 90.

To prevail in a negligence claim, the plaintiff must prove each of five separate

elements, among these those emphasized here: (1) the defendant had a duty to

conform his conduct to a specific standard (the duty element); (2) the defendant

failed to conform his conduct to the appropriate standard (the breach of duty

element); (3) the defendant’s standard conduct was a cause-in-fact of the plaintiff’s

injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a

legal cause of the plaintiff’s injuries (the scope of liability or scope of protection

element); and (5) actual damage (the damages element). Roberts v. Benoit, 605 So.

2d 1032, 1051 (La. 1991), on reh'g (May 28, 1992), quoting Fowler v. Roberts, 556

So.2d 1, 4 (La.1989).

Plaintiff’s Contention:

Plaintiff’s main contention and argument on appeal is that the trial court made

a credibility determination, evaluated eyewitness testimony, and weighed the

evidence from witnesses’ affidavits, which made this partial summary judgment

inappropriate.

Defendant’s Contention:

Lowe’s argues that it provided sufficient evidence as to Plaintiff’s action

being the sole cause of her injuries resulting from the falling merchandise, such that

a credibility determination or weighing of the evidence was not required by the trial

court. Hence, Lowe’s argues the trial court properly maintained the motion for

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summary judgment given Plaintiff failed to exonerate herself of liability under the

first tier of the Davis three-tier test applicable to circumstantial evidence cases.

Additionally, Lowe’s argues that Plaintiff’s affidavit is merely “self-serving”

testimony, and, as such Plaintiff is unable to prove that she will be able to carry her

burden of proof pursuant to La. R.S. 9:2800.6 (A).

La.Code Civ.P. art. 966(D)(1) provides that the mover bears the burden in its

motion but need only demonstrate an “absence of factual support for one or more

elements essential to the adverse party’s claim[.]” If the mover carries that initial

burden, it is incumbent upon the opponent “to 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.”

Credibility assessment is not appropriate for summary judgment. O’Neal v.

Foremost Ins. Co., 18-510, p.8 (La.App. 3 Cir. 2/13/19), 265 So.3d 846, 852, states:

“The credibility of a witness is a question of fact.” Hutchinson v. Knights of
Columbus, Council No. 5747, 03-1533, p.8 (La. 2/20/04). 866 So.2d 228, 234.
In determining whether a genuine issue exists, “courts cannot consider the
merits, make credibility determinations, evaluate testimony or weigh
evidence.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.
7/5/94), 639 So.2d 730, 751. Specifically, “[a] trial court judge cannot make
credibility determinations on a motion for summary judgment.” Hutchinson,
866 So.2d at 234.

A party’s self-serving testimony must be accepted as credible except “[w]hen

a party opposing a motion for summary judgment presents her own self-serving

testimony, but that testimony contains significant discrepancies[.]” Smith v. State

through Dep’t of Transp. & Dev., 21-192, pp. 14 (La.App. 3 Cir. 3/2/22), 350 So. 3d

879, 887.

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Davis, 774 So. 2d at 90, enunciated a three-prong test a plaintiff must satisfy

in order to prevail in a falling merchandise claim:

(1) he or she did not cause the merchandise to fall, (2) that
another customer in the aisle at that moment did not cause
the merchandise to fall, and (3) that the merchant’s
negligence was the cause of the accident: the customer must
show that either a store employee or another customer placed
the merchandise in an unsafe position on the shelf or
otherwise caused the merchandise to be in such a precarious
position that eventually, it does fall.

(1) Plaintiff did not cause the merchandise to fall

Ms. Williams, Lowe’s employee, testified that she witnessed Plaintiff “reach

in to grab a vinyl roll, and it slid over and knocked the one she had propped up down.”

Plaintiff testified in her deposition:

Okay. Basically, she [Ms. Williams] was pulling the carpets out
and stuff to let me see the colors and, you know, we was looking at the
length and width of it. And I got her to grab two of them to go and
price it for me in the colors that I wanted. And that’s what she went to
do. So, as she left to go do that, it wasn’t far from where we was, I was
looking at the carpets on the right and a carpet came crashing down
from the left.

Plaintiff denied touching any of the carpets, which were actually rolls of vinyl

laminate flooring, as she was looking at the rolls to the right of the one that fell on

her.

The conflicting testimonies of Ms. Williams and Plaintiff create a genuine

issue of material fact regarding the first prong of the Davis test.

(2) That another customer in the aisle at that moment did not cause the merchandise

to fall

Plaintiff testified that she could recall no other customers on the aisle. Neither

of these eyewitnesses raised any possibility that another customer was to blame for

the accident.

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(3) That the merchant’s negligence was the cause of the accident

It can be inferred from her testimony that Ms. Williams blames Plaintiff’s

actions for causing this accident. Plaintiff indicated that Ms. Williams blamed other

employees of Lowe’s for improperly stacking the rolls of flooring. A genuine issue

of material fact exists regarding whether Plaintiff even touched the merchandise at

all, much less moved it in such a manner as to cause the accident. Further, Plaintiff’s

claims that Ms. Williams attributed the accident to haphazard stacking by other

employees raises a genuine issue of material fact as well.

As stated, a party’s self-serving testimony must be accepted as credible except

“[w]hen a party opposing a motion for summary judgment presents her own self-

serving testimony, but that testimony contains significant discrepancies[.]” Smith,

350 So. 3d 879, 887. Therefore, we find, the evidence submitted by Lowe’s, as it

introduced both Plaintiff’s deposition and that of its employee, Ms. Williams, in

support of its motion for summary judgment, demonstrates genuine issues of

material fact as to the three prongs of the Davis test. Thus, we find Lowe’s never

shifted the burden of production, under La.Code Civ.P. art. 966(D), to Plaintiff.

Based on our review of the record before us, we find that summary judgment

was not appropriate in this case.

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DECREE

For the reasons set forth herein, the summary judgment granted by the trial

court in favor of Lowe’s Home Centers, Inc., dismissing the claims of Demetria

Joseph, is reversed, and this matter remanded to the trial court for further

proceedings, with all costs assessed to Defendant, Lowe’s Home Centers, Inc.

REVERSED AND REMANDED.

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