Diana Dupuy v. Dg Louisiana, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-547

DIANA DUPUY

VERSUS

DG LOUISIANA, LLC

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SUPERVISORY WRIT FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 15-2013
HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of John D. Saunders, Shannon, J. Gremillion, and John E. Conery,
Judges.

WRIT DENIED.

Cory P. Roy
Brandon J. Scott
Renee Y. Roy
Roy & Scott, Attorneys at Law
107 North Washington Street
Marksville, LA 71351
(318) 240-7800
COUNSEL FOR PLAINTIFF:
Diana Dupuy

Peter J. Wanek
Trevor C. Davies
Lynda A. Tafaro
McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch
909 Poydras Street, Suite 100
New Orleans, LA 70112
COUNSEL FOR DEFENDANT/RELATOR:
DG Louisiana, LLC

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GREMILLION, Judge.

Relator, DG Louisiana, LLC, seeks supervisory writs from the trial court’s

judgment denying Relator’s motion for summary judgment. For the following

reasons, the writ is denied.

STATEMENT OF THE CASE

This case involves an accident that occurred while Plaintiff, Diana Dupuy,

was shopping at Relator’s Dollar General Store in Marksville, Louisiana. Plaintiff

went to the store on July 21, 2014, but was unable to find a shopping cart. She

asked Rose Maricle, who was employed by Relator at the time, about getting a

shopping cart to use. Maricle, who was on a smoke break, allegedly informed

Plaintiff that she could use a shopping cart that was filled with cardboard boxes

and located in one of the aisles of the store. Plaintiff began to unload the boxes

from the cart so that she could use it. Allegedly, when Plaintiff lifted a box

containing canned goods from the shopping cart, the cart fell onto her chest and

legs, causing her to fall backwards into the store’s shelving. As a result of the

accident, Plaintiff filed a personal injury lawsuit against Relator. Relator filed a

motion for summary judgment seeking dismissal of Plaintiff’s lawsuit. Following

a hearing, the trial court denied Relator’s motion for summary judgment. Relator

now seeks review of the trial court’s ruling.

SUPERVISORY RELIEF

Since the denial of a motion for summary judgment is an interlocutory ruling

from which no appeal may be taken, the only practical remedy available to avoid a

possible useless trial on the merits is to request that the appellate court exercise its

supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers,

526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988).

ON THE MERITS

Relator argues that the trial court erred when it denied Relator’s motion for

summary judgment. Relator notes that with regard to the liability of the custodian

for a defective thing, La.Civ.Code art. 2317.1 provides as follows:

The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he
knew or, in the exercise of reasonable care, should have known of the
ruin, vice, or defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care. Nothing in this Article shall
preclude the court from the application of the doctrine of res ipsa
loquitur in an appropriate case.

Also, Relator notes that in order to prevail in a claim against a merchant for

a fall on the merchant’s premises, a plaintiff is required to prove the elements of a

general tort claim as well as the following elements set forth in La.R.S.

9:2800.6(B):

(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.

Relator asserts that the trial court should have granted its motion for

summary judgment and dismissed Plaintiff’s lawsuit because Plaintiff has not

produced evidence to show that she will be able to prove that the shopping cart was

defective or unreasonably dangerous or prove that Relator had any knowledge of

any defect or condition that posed an unreasonable risk of harm. Relator contends

that those two elements must be proven whether Plaintiff is proceeding under

general tort law or the Merchant’s Liability Statute, La.R.S. 9:2800.6. Relator

notes that Plaintiff alleges that the boxes were improperly stacked in the shopping

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cart, thus rendering the cart defective. However, Relator maintains that no

evidence has been offered to show that the boxes were improperly stacked in the

cart.

Relator contends that the trial court’s decision to deny the motion for

summary judgment was based on Maricle’s affidavit. Relator notes that Plaintiff

submitted Maricle’s affidavit as evidence supporting her opposition to the motion

for summary judgment. In her affidavit, Maricle states that Plaintiff would have

needed Maricle to explain to her how to remove the boxes from the shopping cart

so that the cart would not flip. However, Relator argues that the trial court’s

decision to admit the affidavit over Relator’s objection was erroneous because the

affidavit contains speculation and opinion testimony by a lay witness in violation

of La.Code Evid. art. 701 and La.Civ.Code art. 967(A). Also, Relator contends

that while Maricle’s affidavit states that she stacked the boxes in the shopping cart,

the affidavit does not describe the manner in which the boxes were stacked. Thus,

Relator asserts that there is no evidence that the boxes were improperly stacked.

In her opposition to the instant writ application, Plaintiff contends that the

trial court properly admitted Maricle’s affidavit. Plaintiff notes that La.Code Evid.

art. 701 provides as follows:

If the witness is not testifying as an expert, his testimony in the
form of opinions or inferences is limited to those opinions or
inferences which are:

(1) Rationally based on the perception of the witness; and

(2) Helpful to a clear understanding of his testimony or the
determination of a fact in issue.

“The general rule is that a lay witness is permitted to draw reasonable

inferences from his or her personal observations.” State v. LeBlanc, 05-885, p.7

(La.App. 1 Cir. 2/10/06), 928 So.2d 599, 603. “If the testimony constitutes a

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natural inference from what was observed, no prohibition against it as the opinion

of a non-expert exists as long as the lay witness states the observed facts as well.”

Id. Plaintiff argues that Maricle’s opinion as to the stability of the boxes in the

shopping cart is within her perception because she is the one who stacked the

boxes. Plaintiff also argues that since Maricle is the only one with personal

knowledge of how the boxes were stacked in the cart, her opinion is helpful in

determining whether the shopping cart posed a danger. Plaintiff maintains that

Maricle’s affidavit provides factual support for Plaintiff’s assertion that a

dangerous condition existed. Further, Plaintiff contends that despite Relator’s

argument to the contrary, the affidavit does explain how the boxes were stacked in

the cart. In that regard, Plaintiff notes that Maricle states in her affidavit that she

stacked possibly eight boxes of canned goods in and under the shopping cart, with

some boxes sticking out of the top of the cart.

We agree with Plaintiff that the admission of Maricle’s affidavit was proper

because the affidavit was based on Maricle’s first-hand knowledge and

perceptions. The trial court properly found that as a former employee of the Dollar

General Store, Maricle was in a position to give some insight on the issue of

whether the shopping cart was loaded in such a way as created a risk of harm for

Plaintiff.

We note that there are conflicting factual accounts regarding how Plaintiff

came to use the shopping cart at issue. While in Plaintiff’s deposition she alleges

that Maricle told her to use the cart filled with boxes, Maricle states in her affidavit

that she had initially instructed Plaintiff to use an empty cart that was supposedly

next to the cart which was loaded with boxes of canned goods. However, Maricle

does seem to acknowledge in her affidavit that she failed to instruct Plaintiff on

how to remove the boxes so that the shopping cart would not flip. At the very

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least, the affidavit does create a genuine issue of material fact as to whether the

actions of Relator’s employee negligently contributed to Plaintiff’s accident such

that Relator could be held liable for Plaintiff’s injuries. Accordingly, the trial court

did not err when it denied Relator’s motion for summary judgment. Therefore, the

writ application is denied.

WRIT DENIED.

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