Lynette Washington v. Minute Mart, Inc. D/B/A Breaux's Mart

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-119

LYNETTE WASHINGTON

VERSUS

MINUTE MART, INC.

D/B/A BREAUX’S MART

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2019 7797 B
HONORABLE VALERIE C. GOTCH GARRETT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

WRIT GRANTED AND MADE PEREMPTORY;
JUDGMENT OF TRIAL COURT REVERSED AND RENDERED.

Bonita K. Preuett-Armour
Armour Law Firm
P. O. Box 8386
Alexandria, LA 71306
(318) 442-6611
COUNSEL FOR DEFENDANT-APPLICANT:
Minute Mart, Inc. d/b/a Breaux’s Mart

David D. Benoit
Justin R. Cantu
P. O. Box 877
Breaux Bridge, LA 70517
(337) 332-6666
COUNSEL FOR PLAINTIFF-RESPONDENT:
Lynette Washington

PICKETT, Judge.

The defendant-relator, Minute Mart, Inc. d/b/a Breaux’s Mart, (Minute Mart)

seeks supervisory writs from the judgment of the trial court which denied Minute

Mart’s motion for summary judgment.

FACTS

As Lynette Martin entered Breaux’s Mart on October 14, 2019, she alleges

she tripped over a floormat and fell, breaking her collarbone. In her petition

against Minute Mart, she alleges the floormat was “wadded up” which caused her

to stumble over it. She filed her Petition for Damages on December 17, 2019,

naming Minute Mart as defendant.

On June 29, 2021, Minute Mart filed a Motion for Summary Judgment,

asserting that there was an absence of factual support for the elements essential to

Washington’s cause of action and that Washington would be unable to produce

factual support sufficient to establish the existence of a genuine issue of material

fact. A hearing on the motion was held on September 10, 2021, and the matter was

taken under advisement. On November 24, 2021, the trial court issued Written

Reasons for Judgment, concluding that “there are genuine issues of material fact

beyond the mere allegations or denials of the pleadings.” A written Judgment on

Motion for Summary Judgment was signed on January 5, 2022. Minute Mart filed

an application for supervisory writs in this court seeking review of the trial court’s

ruling. We granted the writ on May 4, 2022, and issued an order allowing the

parties to file additional briefs and request oral argument. See La.Code Civ.P. art.

966(H). Minute Mart timely requested oral argument, which this court granted.

ASSIGNMENT OF ERROR

Minute Mart asserts one assignment of error:

The trial court erred in denying Breaux’s Mart’s Motion for Summary
Judgment where Breaux’s Mart pointed out the absence of factual
support for one or more elements essential to Ms. Washington’s claim
and where Ms. Washington failed to produce factual support sufficient
to establish the existence of a genuine issue of material fact or that
Breaux’s Mart is not entitled to judgment as a matter of law.

DISCUSSION

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 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, p. 3 (La. 12/10/21), 332 So.3d

623, 625.

Minute Mart directs this court to the statute which governs merchant

liability, La.R.S. 9:2800.6, which reads as follows:

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.

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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.

(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.

Minute Mart correctly asserts that a plaintiff must prove each of the three elements

set forth in La.R.S. 9:2800.6(B). Failure to prove any of these elements is fatal to a

plaintiff’s claim. White v. Wal–Mart Stores, Inc., 97-393 (La. 9/9/97), 699 So.2d

1081. Minute Mart contends that there is an absence of factual support for each of
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these elements and that Plaintiff has not produced factual support sufficient to

establish the existence of a genuine issue of material fact.

Minute Mart first argues that the condition of the mat did not present an

unreasonable risk of harm. La.R.S. 9:2800.6(B)(1). Minute Mart points out that

Washington is not claiming that the presence of the mat or the mat itself is

defective. Instead, Washington claims that the mat presented an unreasonable risk

of harm due to a “wedge” in the mat. Washington testified, however, that she did

not see the wedge until after she had fallen and gotten back up and she did not

know whether her fall caused the wedge to occur. Minute Mart also states that the

video footage of the incident does not show that the mat had a wedge or other

irregularity prior to Washington’s encounter with the mat.1 Lastly, Minute Mart

directs this court to the deposition testimony of Len Arceneaux, a cashier who had

worked at Breaux’s Mart for at least ten years. To Arceneaux’s knowledge, the

mats had never curled up prior to Washington’s accident.

Minute Mart cites a similar case, Alexander v. Hancock Bank, 16-662

(La.App. 4 Cir. 2/8/17), 212 So.3d 713, wherein the plaintiff alleged that she

tripped over a wave or lip in the rubber edge of a floor mat located in the lobby of

a bank. It was only after her fall that the plaintiff noticed the wave or lip in the mat

and concluded that wave or lip must have been the cause of her fall. The trial court

granted summary judgment in favor of the defendants on the issue of liability, and

the ruling was affirmed on appeal. On appeal, the court explained that the plaintiff

was unable to produce any evidence other than conclusory allegations and self-

serving statements regarding the mat, and was therefore, unable to meet her burden

of proof that a defect existed. Further, the court concluded that the plaintiff was

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The video footage was included with the writ application.
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unable to demonstrate that the mat created an unreasonably dangerous condition or

that an unreasonably dangerous condition was the cause in fact of her fall.

Likewise, Minute Mart argues that Washington’s conclusory allegations as

to the existence of a wedge in the mat are insufficient to demonstrate that the mat

created an unreasonably dangerous condition or that an unreasonably dangerous

condition caused her fall. As stated in Alexander, “Proof which establishes only

possibility, speculation, or unsupported probability does not suffice to establish a

claim.” Id. at 718 (quoting Todd v. State Through Social Services, Office of

Community Services, 96–3090, p. 16 (La. 9/9/97), 699 So.2d 35, 43).

If there had been a wedge in the mat prior to the incident, Minute Mart

maintains that the degree to which a danger is evident is one factor in determining

whether a condition is dangerous. Washauer v. J.C. Penney Co., Inc., 03-642

(La.App. 1 Cir. 4/21/04), 879 So.2d 195. “If a dangerous condition is patently

obvious and easily avoidable, it cannot be considered to present a condition

creating an unreasonable risk of harm.” Id. at 200 (citing Alexander v. City of

Baton Rouge, 98–1293 (La.App. 1 Cir. 6/25/99), 739 So.2d 262, writ denied, 99-

2205 (La. 11/5/99), 750 So.2d 188). Further, “[a] pedestrian has a duty to see that

which should be seen and is bound to observe whether the pathway is clear.”

Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 9 (La.

2/20/04), 866 So.2d 228, 235.

Considering same, Minute Mart contends that the mat in question was

clearly visible, being burgundy red with writing on it and with black rubber around

it. Washington testified that she had been to Breaux’s Mart “a million times” prior

to the incident and had always encountered a mat at the entrance to the store

similar to the one at issue. Moreover, Minute Mart urges that any wedge in the

mat would have been clearly visible. Washington testified that she was not
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looking down at the time that she tripped and that if she had, she would have never

fallen, stating, “I would’ve went over that.” Minute Mart concludes that

Washington’s accident was not a result of any unreasonable risk of harm on the

store’s premises and that Washington’s conclusory allegations are insufficient to

support the allegation that there was a wedge in the mat prior to her fall. Further,

regardless of whether there was a wedge, the mat was clearly visible, and any such

wedge would have been clearly visible as well.

Minute Mart notes that the trial court, citing Beckham v. Jungle Gym, LLC,

45,325 (La.App. 2 Cir. 5/19/10), 37 So.3d 564, concluded that “[i]t is the jury or

trier of facts job to determine whether Plaintiff has met the elements listed in

Louisiana Revised Statute 9:2800.6” and held that “there are genuine issues of

material fact beyond the mere allegations or denials of the pleadings.” In

Beckham, the trial court granted the defendant’s motion for summary judgment,

finding that the condition of the parking lot where the plaintiff had fallen did not

present an unreasonable danger under La.Civ.Code art. 2317.1. In reversing the

decision on appeal, the second circuit held that “[t]he mixed question of law and

fact there required facts to be weighed, allowing for the possibility of differing fact

assessments and a genuine issue of material fact.” Id. at 569. Minute Mart urges,

however, that the court did not hold that the issue of “unreasonable risk of harm”

could never be disposed of on motion for summary judgment. Instead, the court

held that material issues of fact remained as to whether an unreasonable risk of

harm existed in the parking lot at issue.

Subsequent to Beckham, the supreme court decided Bufkin v. Felipe’s

Louisiana, LLC, 14-288 (La. 10/15/14), 171 So.3d 851, and Allen v. Lockwood, 14-

1724 (La. 2/13/15), 156 So.3d 650, both of which involved motions for summary

judgment regarding the issue of whether the complained-of condition presented an
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unreasonable risk of harm. In both cases, the trial court denied the defendants’

motions for summary judgment, and in both cases, the supreme court reversed and

granted summary judgment in favor of the defendants. In Bufkin, 171 So.3d 851,

the issue was whether a building contractor breached any legal duty owed to a

pedestrian crossing a street next to the contractor’s dumpster, who was struck by

an oncoming bicyclist. The court concluded that the dumpster was obvious and

apparent, and not unreasonably dangerous; thus, there was no duty to warn of the

clearly visible obstruction.

In Allen, 156 so.3d 650, the court clarified that Louisiana jurisprudence does

not preclude summary judgment in cases where the plaintiff is unable to produce

factual support for a claim that a complained-of condition is unreasonably

dangerous. As in Bufkin and Allen, Minute Mart submits that there is an absence

of factual support to establish that the mat at issue presented an unreasonable risk

of harm.

Next, Minute Mart argues that it did not create or have actual or constructive

notice of any hazardous condition of the mat. La.R.S. 9:2800.6(B)(2). There is no

evidence, Minute Mart maintains, that it had actual knowledge of any wedge in the

mat prior to the incident. Washington testified that she did not know anything that

anyone at the store did to cause the wedge or even what caused the wedge.

With regard to constructive notice, Minute Mart refers to La.R.S.

9:2800.6(C)(1) which requires a plaintiff to prove that the condition existed for

such a period of time that the merchant would have discovered it had the merchant

exercised reasonable care. Jones v. Brookshire Grocery Co., 37,117 (La.App. 2

Cir. 5/14/03), 847 So.2d 43. “Absent some showing of the temporal element, there

can be no inference of constructive knowledge.” Id. at 49.

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Minute Mart submits that Washington is unable to establish this temporal

element. Washington testified that she did not see the wedge before she fell and

did not know how long the wedge had been there. Minute Mart also points out that

the video footage does not show that a wedge or irregularity existed prior to the

incident. Minute Mart acknowledges that the video footage does not depict the

mat for a substantial length of time prior to the incident but is does depict the mat

just prior to and after Washington’s fall. Minute Mart explains that according to

Chase Breaux, the store manager, its general practice is to save footage from the

time the person in question comes into the frame until after the event. Further,

Minute Mart retains video footage for only fourteen days before the hard drive is

overridden with new data.

Regarding the inspection of the mat at issue, Breaux, who was working at

the time of the incident, testified that employees are required to collect carts from

the parking lot every thirty minutes, requiring employees to traverse the

entrance/exit and thereby encounter the mats. Arceneaux, who was working as a

cashier at the time of the incident, testified that employees checked the mat in

question throughout the day, passing multiple times a day. Arceneaux also

testified that the employees check the mat at the same time they retrieve the

baskets from the parking lot, which is every few minutes. Further, Arceneaux

stated that he checked for baskets ten, fifteen, twenty times a day and he would

always look down to see if the mat was okay. According to Arceneaux, the

managers and the baggers also checked the mat. Minute Mart concludes that it

exercised reasonable care in monitoring the condition of the mat such that any

wedge in the mat would not have remained for a sufficient period of time between

the occurrence of any wedge and Washington’s fall to impute constructive notice.

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Minute Mart notes that in Washington’s Opposition to Motion for Summary

Judgment, she contended that Minute Mart has been a defendant in no less than six

lawsuits over the years. Washington, however, did not present any evidence in that

regard nor did she allege the nature of the claims or their relevancy to this

proceeding. Minute Mart asserts that Washington’s assertion is not competent

evidence.

Washington also argued in her opposition that there was an issue of

spoliation of evidence regarding the video footage prior to the fall and that a jury

could infer that the missing video footage was likely not favorable to Minute Mart.

“Plaintiff maintains that that lack of video evidence preserved and/or disclosed

could lead a jury to determine that Breaux Mart had actual or constructive

knowledge of the defect in the mat.” Washington contended that on October 30,

2019, her attorney sent correspondence requesting that all electronic data relating

to the incident be preserved. Washington also referenced the February 10, 2020

Notice of Records Deposition and the February 20, 2020 Subpoena Duces Tecum

for the video footage.

Minute Mart reiterates that it is it general practice to save video footage from

the time the person in question comes into the frame until after the event. Minute

Mart states that it preserved the video footage of Washington’s accident in keeping

with that general practice. Minute Mart points out that the letter from

Washington’s attorney, the deposition notice, and subpoena were not issued within

fourteen days of the incident. As such, Minute Mart concludes that Washington

cannot set forth a genuine issue of material fact as to any intentional spoliation of

the video footage.

Lastly, Minute Mart maintains that it exercised reasonable care regarding the

condition of the mat. La.R.S. 9:2800.6(B)(3). Breaux testified that Minute Mart
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does not own the mats at the store’s entrance but leases them from A-1 Services.

Breaux explained that it pays A-1 Services a fee, and A-1 Services takes the mats

and cleans them once a week, returns them to the store, positions them on the

ground, and makes sure the mats are clean and damage free. Breaux also testified

that the employees are instructed to fix a mat if they see that it is not flat. The

employees also sweep the mat if it is dirty. Arceneaux, as noted above, stated that

employees check the mat numerous times throughout the day. Finally, Washington

never noticed a problem with the mat prior to the day of the incident.

Minute Mart concludes that it is evident from the testimony that it had

aggressive procedures in place to ensure that the mats were clean, free from

damage, and positioned properly. As such, Minute Mart maintains that there is

absence of factual support regarding the element of failure to exercise reasonable

care, thus, Washington has not established the existence of a genuine issue of

material fact regarding same.

In opposition to Minute Mart’s application for supervisory writs in this

court, Washington cites Beckham, 37 So.3d at 568 (citations omitted):

Whether a defect presents an unreasonable risk of harm is a
mixed question of law and fact that is peculiarly a question for the
jury or trier of the facts. It entails innumerable considerations; and,
because it requires a balancing of the risk and utility of the condition,
it is not a simple rule of law which can be applied mechanically to the
facts of any particular case. It is “a matter wed to the facts” and must
be determined in light of the facts and surrounding circumstances of
each particular case.

Washington refers to the trial court’s Written Reasons for Judgment wherein

Plaintiff states that the court “focused on the many moving parts that factor into

whether or not a jury makes a finding of liability.” At the hearing on the motion,

Washington asserts that the trial court had a different perspective on the video than

Minute Mart’s counsel. Washington believes that a jury could easily infer that

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Minute Mart should have preserved more than a few scant seconds of video that

show the actual fall. Washington also maintains that a jury could easily conclude

that an employee could have created the risk of harm or should have seen the

danger and eliminated it. Lastly, Washington contends that Minute Mart’s brief

raises issues of comparative fault which suggests there are genuine issues of

material fact to be resolved by a jury.

In its Written Reasons for Judgment, the trial court states:

Louisiana Revised Statute 9:2800.6 imposes a greater burden for
defendants by raising their standard of care for an injured plaintiff to
prevail against them in a suit for damages. “The determination that a
defect presents an unreasonable risk of harm predominantly
encompasses an abundance of factual findings, which differ greatly
from case to case; the unreasonable risk of harm criterion entails a
myriad of considerations and cannot be applied mechanically.” LSA-
C.C. art. 2317.1. Beckham v. Jungle Gym, L.L.C., 45,325 (La. App. 2
Cir. 5/19/10), 37 So.3d 564. Whether a defect presents an
unreasonable risk of harm is a mixed question of law and fact this is
peculiarly a question for the jury or trier of facts; it entails
innumerable considerations, and, because it requires a balancing of
the risk and utility of the condition, it is not a simple rule of law which
can be applied mechanically to the facts of any particular case. LSA-
C.C. art. 2317.1. Beckham v. Jungle Gym, L.L.C., 45,325 (La. App. 2
Cir. 5/19/10), 37 So.3d 564.

This Court’s decision is in line with the previous case law
evidence and testimony regarding the slip and fall should be examined
by the jury or the trier of facts. It is the jury or trier of facts job to
determine whether Plaintiff has met the elements listed in Louisiana
Revised Statute[s] 9:2800.6. It is the determination of this Court that
there are genuine issues of material fact beyond the mere allegations
or denials of the pleadings.

We note that the trial court relied on the ruling in Beckham, a decision out of

the second circuit, which examined the question of whether a defect presented an

unreasonable risk of harm under La.Civ.Code art. 2317.1. As noted by Minute

Mart, the supreme court decided two cases after Beckham, 37 So.3d 564, which

analyzed whether the complained-of condition presented an unreasonable risk of

harm. Summary judgment was granted in both cases, finding no unreasonable risk

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of harm. Bufkin, 171 So.3d 851, and Allen, 156 So.3d 650. The supreme court did

not follow Beckham’s reasoning that whether a defect presents an unreasonable

risk of harm is a mixed question of law and fact for a jury or trier of fact to decide.

Instead, the supreme court concluded that whether a defect created an unreasonable

risk of harm was an appropriate issue for summary judgment. Finally, we note that

none of these three cases involved La.R.S. 9:2800.6.

The trial court did not mention anything about spoliation of the evidence in

its Written Reasons for Judgment. A copy of the hearing transcript was not

included in the writ application to support Washington’s assertion that the trial

court’s ruling was based, in part, on spoliation of evidence.

In this case, Minute Mart points out an absence of factual support for all

three elements set forth in La. R.S. 9:2800.6(B) that are essential to Washington’s

claim. Washington relied solely on her claim of spoliation of evidence to show

that Minute Mart had constructive notice of the wedge in the mat. The video

shows about five seconds of footage prior to Washington’s fall, and there does not

appear to be a wedge in the mat during those five seconds before Washington fell.

Minute Mart preserved the video footage pursuant to its store’s policy, and it

captures seconds before the fall and until Washington is assisted in getting up and

walks away. The video shows an employee slightly straightening the mat upon

which Plaintiff tripped. This mat was located just outside the door. The employee

also straightened the mat located immediately inside the door where Washington

landed. There is no evidence in the record before us that Minute Mart intentionally

destroyed video footage that would have been helpful to Washington’s case.

CONCLUSION

We find Minute Mart’s motion for summary judgment should be granted.

Washington failed to establish that the mat presented an unreasonable risk of harm,
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that Minute Mart had actual or constructive notice of a defect in the mat, or that

Minute Mart failed to exercise reasonable care. Failure to provide proof sufficient

to create a genuine issue of material fact on any one of these elements would be

enough to require that Washington’s claims be dismissed. We therefore grant the

application for supervisory writs, reverse the judgment of the trial court denying

Minute Mart’s motion for summary judgment, and enter summary judgment in

favor of Minute Mart. We further order Washington’s claims against Minute Mart

be dismissed with prejudice.

WRIT GRANTED AND MADE PEREMPTORY.
JUDGMENT OF TRIAL COURT REVERSED AND RENDERED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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