Pamela Migliore Wife of and Tony Migliore Versus Ambassador Partnership, LLC, Mac-Laff, Inc., Hdi Global Specialty Se and Ian Patton ( 2023 )

PAMELA MIGLIORE WIFE OF AND TONY NO. 22-CA-599
MIGLIORE
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
AMBASSADOR PARTNERSHIP, LLC,
MAC-LAFF, INC., HDI GLOBAL SPECIALTY STATE OF LOUISIANA
SE AND IAN PATTON
ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 88,714, DIVISION "D"
HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING
December 01, 2023
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and Stephen J. Windhorst
AFFIRMED
JGG
RAC
SJW
COUNSEL FOR PLAINTIFF/APPELLANT,
PAMELA MIGLIORE WIFE OF AND TONY MIGLIORE
Stephen M. Chouest, Sr.
J. Rand Smith, Jr.
Kylie D. Faure
COUNSEL FOR DEFENDANT/APPELLEE,
AMBASSADOR PARTNERSHIP, LLC, MAC-LAFF, INC., EJBR
INVESTMENTS, LLC, HDI GLOBAL SPECIALTY SE, AND IAN PATTON
James D. Hollier
Ben L. Mayeaux
Philip H. Boudreaux, Jr.
GRAVOIS, J.
In this slip and fall case, plaintiffs, Pamela and Tony Migliore, appeal the
trial court’s grant of summary judgment in favor of defendants, Ambassador
Partnership, LLC, Mac-Laff, Inc., HDI Global Specialty SE, and Ian Patton,
implicitly finding that plaintiffs failed to bear their burden of proof on summary
judgment that they could prevail on their claims against defendants at trial. For the
following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
In their petition for damages against defendants, plaintiffs alleged that on
December 23, 2019, at approximately 1:15 p.m., Mr. Migliore slipped and fell in
the dining area of the McDonald’s restaurant on Ormond Boulevard in Destrehan,
Louisiana, on a recently mopped floor as he arrived at his table, which was not
“cordoned off,” breaking his ankle. They alleged that the owner and manager of
the restaurant failed to properly warn patrons of the slip and fall hazard created by
the recently mopped floor.
In due course, defendants filed a motion for summary judgment asserting
that plaintiffs cannot prove the essential elements of their claim. In support of their
motion for summary judgment, defendants offered the following evidence:
plaintiffs’ petition for damages; the full depositions of plaintiffs Tony and Pamela
Migliore, with attachments, including security videos of the subject incident from
multiple camera positions inside of the restaurant; and Mr. Migliore’s past medical
records from Dr. Jorge Contreras, Ochsner Medical Center/Dr. Christo Arbonies,
and Diagnostic Imaging Services/Dr. Brandt M. Zimmer; all of which evidence
was duly introduced and accepted at the subsequent hearing on the motion. In
opposition to the motion for summary judgment, plaintiffs offered their answers to
defendants’ requests for admission and interrogatories, which evidence was also
introduced and accepted at the subsequent hearing on the motion, along with a
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series of still photographs taken from the security videos of the subject incident
that show Mr. Migliore walking from the entrance of the restaurant to his table,
where he falls.
The record and briefs reflect that Mr. Migliore, who was 67 at that time and
walked with a cane, accompanied by his wife, Pamela, who was 60 at that time,
stopped at the McDonald’s restaurant on Ormond Boulevard in Destrehan,
Louisiana, to eat lunch. They frequented this restaurant often and liked to sit at a
particular table by the windows on the far side of the restaurant from the entrance,
along a wall of windows. Mr. Migliore testified in his deposition that the weather
that day was a light drizzle. After entering the restaurant, Mrs. Migliore went to
the counter to order their food, while Mr. Migliore proceeded by himself to the
table they liked. Security videos taken that day, from multiple camera angles
inside of the restaurant, show an employee mopping parts of the restaurant floor,
and that seven yellow “wet floor” warning cones were placed in various positions
around the entrance and dining area of the restaurant that had been mopped, five of
which Mr. Migliore passed on the way to his table.
In his deposition, Mr. Migliore acknowledged seeing the cones and using
that information to choose his path to his desired table. He testified that there was
a yellow cone on the aisle before his table, but not one on the aisle with his table.
The placement of the cones as described by Mr. Migliore is corroborated by the
videos. Mr. Migliore testified that there was a little water in spots around the
restaurant, but he stayed away from those areas. He stated that he did not notice
any water or other wet substances in the area of his fall. Mr. Migliore did not
observe anyone mopping the floor in the direct area where he fell. After he fell,
when he was still on the floor, Mr. Migliore stated that he did not observe any
water or other wet or slippery substances on the floor. He said that he noticed that
his clothing was damp on his right arm and right leg, after he fell. Two patrons
22-CA-599 2
who were nearby are observed on video getting up from their table to assist Mr.
Migliore off the floor.
Mr. Migliore stated in his deposition that he was joined by his wife at the
table after someone went to get her. The manager came to their table and they
reported the incident. The manager offered to call an ambulance, which plaintiffs
declined. They ate their meal and departed, using the same path as when they had
entered. Mr. Migliore testified in his deposition that he did not recall any other
restaurant employee coming over to the table with a mop or otherwise to clean up
the floor after he fell. He stated that he went to urgent care either later that evening
or the next day, where he was diagnosed with a broken ankle.
Plaintiffs’ depositions and Mr. Migliore’s medical records reveal that Mr.
Migliore had a condition that made it difficult for him to walk, that he walked with
the assistance of a cane (which he was using that day at the McDonald’s), and that
he had suffered several falls in the recent past.1 He stated that he did not know
what medical condition required him to use a cane. About six months prior to his
fall at the McDonald’s, Mr. Migliore had been hospitalized for approximately three
weeks following an automobile accident wherein he suffered injuries to his pelvis,
ribs, and right hip, which he testified were resolved at the time of his fall at the
McDonald’s. He stated that he had used a cane to walk prior to the automobile
accident. He did not recall whether he had ever been treated for any condition
regarding his balance, gait, lower extremities, or weakness in his legs. He
remembered falling a few times in the past, but did not know the reasons why he
fell. He did recall that he had never injured his ankle before.
1
Mr. Migliore’s medical records from his primary care physician Dr. Jorge Contreras
were admitted into evidence as an exhibit. They reveal that Mr. Migliore had been diagnosed
with muscular dystrophy and that he had a recent history of falling several times in the last few
months, with his legs “giving out.”
22-CA-599 3
The video of the area of Mr. Migliore’s fall does not show the floor by Mr.
Migliore’s feet, and thus does not show the condition of the floor where he fell.
Nor is the quality of the video detailed enough to show the condition of the floor
around his table. On the video, Mr. Migliore reaches his table and grasps the back
of his chair. Next, his legs appear to collapse or buckle under him and he falls
right behind the chair, to the floor, after which he is helped up by two patrons.
Mr. Migliore’s deposition testimony, while hazy on certain matters such as
his address, how long he had been using a cane, and exactly what medical
condition caused his doctors to recommend that he use a cane, was clear that he
saw the multiple warning cones in the restaurant, and that he also was determined
and undeterred by the presence of the warning cones in his desire to sit at his
particular table. (“As long as no one was sitting there, I was headed for that
table.”) Also, as he walked to the table, he was actively looking for water spots on
the floor so he could stay away from them. He does not recall seeing any water
where he fell, and opined that he would have noticed it. He appeared to conclude
that he must have slipped on some water because his pants leg and his sleeve were
damp after he got into his chair.
Mrs. Migliore testified in her deposition that her husband had no problems
walking, or with falling, or that he had used a walker before the fall. However, it
appears that her assertions to this effect were directly contradicted by Mr.
Migliore’s medical records from Dr. Contreras, as noted above.
A hearing on defendants’ motion for summary judgment was conducted on
August 12, 2022. At the conclusion of the hearing, the trial court granted summary
judgment in favor of defendants. A written judgment granting summary judgment
in favor of defendants and dismissing plaintiffs’ claims against defendants with
prejudice was signed by the trial court on September 30, 2022. This timely appeal
followed.
22-CA-599 4
On appeal, plaintiffs argue that the determination of “reasonableness” of the
placement of “wet floor” warning cones by defendants should be made by the trier
of fact, not by summary judgment proceedings. Plaintiffs argue that the trial court
erred in finding that the “wet floor” warning cones’ placement around the dining
area was proper and reasonable to warn patrons of the alleged unreasonably
dangerous condition, the wet floor. They also argue that summary judgment is
precluded because the evidence showed that plaintiff Mr. Migliore actually
considered the placement of the “wet floor” signs and used them to determine a
safe path to his table.
LAW AND ANALYSIS
“After an opportunity for adequate discovery, 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. C.C.P. art. 966(A)(3). “The burden of proof
rests with the mover. Nevertheless, if the mover will not bear the burden of proof
at trial on the issue that is before the court on the motion for summary judgment,
the mover’s burden on the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense, but rather to point out to
the court the absence of factual support for one or more elements essential to the
adverse party’s claim, action, or defense. The burden is on the adverse party 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.” La.
C.C.P. art. 966(D)(1).
On appeal, our review of summary judgments is de novo under the same
criteria that govern the district court’s consideration of whether summary judgment
is appropriate. Bryant v. Ray Brandt Dodge, Inc., 19-464 (La. App. 5 Cir.
3/17/20), 292 So.3d 190, 195. Thus, appellate courts ask the same questions the
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trial court does in determining whether summary judgment is appropriate: whether
there is any genuine issue of material fact, and whether the mover is entitled to
judgment as a matter of law. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La.
App. 5 Cir. 11/29/11), 78 So.3d 849, 852.
A decision as to the propriety of a grant of a motion for summary judgment
must be made with reference to the substantive law applicable to the case. Bach v.
Bd. of River Port Pilot Comm’rs, 15-765 (La. App. 5 Cir. 5/12/16), 193 So.3d 355,
362.
In a slip and fall case against a merchant, the plaintiff bears the initial burden
of proving each element of his cause of action under La. R.S. 9:2800.6(B). Trench
v. Winn-Dixie Montgomery LLC, 14-152 (La. App. 5 Cir. 9/24/14), 150 So.3d 472,
475-76, citing Flowers v. Wal-Mart Stores, Inc., 12-140 (La. App. 5 Cir. 7/31/12),
99 So.3d 696, 699; White v. Wal-Mart Stores, Inc., 97-393 (La. 9/9/97), 699 So.2d
1081, 1082.
La. R.S. 9:2800.6 provides, in relevant part, 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.
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.
22-CA-599 6
***
Because a plaintiff must prove each of these elements, the failure to prove
any element is fatal to the claimant’s cause of action. Id.This Court, and others, have determined that the reasonableness of a
merchant’s placement and use of warning cones for a wet floor, absent the
existence of a genuine issue of material fact, is appropriate for determination on
summary judgment. See Bertaut v. Corral Gulfsouth, Inc., 16-93 (La. App. 5 Cir.
12/21/16), 209 So.3d 352, 354; Collins v. Franciscan Missionaries of Our Lady
Health Sys., Inc., 19-0577 (La. App. 1 Cir. 2/21/20), 298 So.3d 191, 197, writ
denied, 20-00480 (La. 6/22/20), 297 So.3d 773; McDonald v. PNK (Bossier City),
LLC, 53,561 (La. App. 2 Cir. 9/23/20), 304 So.3d 143, 146, writ denied, 20-01416
(La. 2/9/21), 310 So.3d 179.
Likewise, there is no requirement, jurisprudential or otherwise, that a
merchant must cordon off an area of the floor after mopping it. What a merchant
must do is warn its customers of the wet floor, which McDonald’s did by the
placement of the seven yellow cones.
This Court has viewed the security videos carefully and fully. They reveal
that despite the fact that Mr. Migliore testified that the weather that day was
drizzling rain, he and his wife entered the restaurant without an umbrella. While
this fact is not dispositive about the cause of his subsequent fall, it suggests that his
clothes could have been dampened by the drizzle.
The videos also clearly reveal that the area by Mr. Migliore’s table did not
show any mopping taking place for at least thirty-one minutes before Mr. Migliore
walked through the area on the way to his table. One video, which was positioned
so that the Migliores’ table was in the foreground and the video camera looked
towards the far end of the restaurant (towards the entrance area of the restaurant),
had the perspective of showing Mr. Migliore walking towards the camera, which
22-CA-599 7
was positioned above and behind his table. That video recording begins around
13:18, and during the entire time until plaintiff fell, which occurred between 13:49
and 13:50, no employee is seen moping in the long aisle leading to Mr. Migliore’s
table that Mr. Migliore walked through to get there. The videos clearly show an
employee mopping the floor on the left side (from the camera’s perspective) of the
dining area of the restaurant, an area not near Mr. Migliore’s table and through
which he did not walk. Yellow warning cones were placed in that area following
the mopping. The video further shows an employee mopping the floor near the
“top” of the video and placing cones in that area as well. The “top” of the video
was an area through which Mr. Migliore walked on the way to his table, and the
path he took was clearly marked by yellow cones. Mr. Migliore traversed this area
without mishap.
Additionally, the videos further show that no other diners were eating
anywhere near the Migliores’ table, and moreover that no other customer, diner, or
employee walked down or across the aisle to where the Migliores’ table was
located for the entire thirty-one minutes prior to Mr. Migliore’s fall.
Another video, taken from the opposite side of the dining area of the
restaurant, is positioned to show the area located at the “top” of the previously
discussed video. In this video, the camera is mounted looking towards the dining
area at the “top” of the previously described video, and the area around Mr.
Migliore’s table is generally visible in the distance, but not well visualized. The
camera’s perspective is behind Mr. Migliore and shows his back as he walks in
from the entrance area of the restaurant, away from the camera, through the dining
area at the “top” that had been mopped (with the warning cones present), and then
on to the long aisle to his table that had not been mopped during the previous
thirty-one minutes. As Mr. Migliore walks through this area, he uses his cane.
Initially, he uses his left hand to steady himself by gripping a table on his left, with
22-CA-599 8
his cane in his right hand. As he walks through, he switches his cane to his left
hand so that he can grip the back of the booth seating that is located to his right.
He again switches his cane as he approaches a column so that he can steady
himself with this left hand on the column. (Mr. Migliore is also clearly seen
grasping the column in the first video discussed previously.) The video then shows
Mr. Migliore proceeding in the direction of his table. While Mr. Migliore is not
clearly visible on this video as he reaches his table, as the sunlight from the
windows hampers the quality of the video, it shows the diners nearby who saw or
heard him fall getting up from their table to help him.
The two videos show conclusively that in the parts of the dining area that
were mopped, warning cones were placed conspicuously. The aisle through which
Mr. Migliore walked to reach his table had no warning cones placed on it,
apparently because it had not been mopped within the thirty-one minutes before
Mr. Migliore walked there. Under these factual circumstances, we find that the
placement of the warning cones, in areas that had been recently mopped, was
reasonable, and the lack of a cone in the aisle by Mr. Migliore’s table was also
reasonable, as that area had not been recently mopped nor traveled by anyone else
who could have spread water. This conclusion is bolstered by the fact that Mr.
Migliore himself testified that he did not see any water or spots of water where he
fell, and that he was looking for them on the floor because he saw the warning
cones placed where the videos show that an employee had recently mopped.
Upon de novo review, in light of the foregoing, we find that plaintiffs’
assignments of error are without merit. The record reflects that the placement of
“wet floor” warning cones by defendants was reasonable under the circumstances
presented. We agree with the trial court’s implicit finding that the “wet floor”
warning cones’ placement around the dining area was proper and reasonable to
warn patrons of the alleged unreasonably dangerous condition, the wet floor.
22-CA-599 9
Summary judgment is not precluded even though Mr. Migliore possibly considered
the placement of the “wet floor” signs and used them to determine a safe path to
his table.
In summary, we find that there are no genuine issues of material fact and
defendants are entitled to judgment as a matter of law. We thus affirm the trial
court’s judgment granting defendants’ motion for summary judgment and
dismissing plaintiffs’ claims against defendants with prejudice.
DECREE
For the foregoing reasons, the judgment on appeal which dismissed the
claims plaintiffs asserted against defendants is affirmed.
AFFIRMED
22-CA-599 10
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
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DECEMBER 1, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
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22-CA-599
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE M. LAUREN LEMMON (DISTRICT JUDGE)
J. RAND SMITH, JR. (APPELLANT) STEPHEN M. CHOUEST, SR. (APPELLANT) BEN L. MAYEAUX (APPELLEE)
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