Aliki Swatt Versus Wal-Mart Stores, Inc. ( 2021 )

ALIKI SWATT NO. 21-CA-66
VERSUS FIFTH CIRCUIT
WAL-MART STORES, INC. COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 785-969, DIVISION "D"
HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING
December 29, 2021
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and John J. Molaison, Jr.
AFFIRMED
SJW
HJL
JJM
COUNSEL FOR PLAINTIFF/APPELLANT,
ALIKI SWATT
Scott J. Chafin, Jr.
Julie P. Johnson
Brett P. Fenasci
Stephen M. Chouest, Sr.
J. Rand Smith, Jr.
COUNSEL FOR DEFENDANT/APPELLEE,
WALMART INC., F/K/A WAL-MART STORES, INC.
Isidro R. DeRojas
Dorothy L. Tarver
Christopher James-Lomax
WINDHORST, J.
In this slip and fall case, plaintiff, Aliki Swatt, appeals the trial court’s
judgment granting the motion for summary judgment filed by defendant, Walmart,
Inc., formerly known as Wal-mart Stores, Inc., and dismissing plaintiff’s claims
against defendant. For the following reasons, we affirm the trial court’s judgment.
FACTS and PROCEDURAL BACKGROUND
On July 25, 2018, plaintiff, Ms. Swatt, filed suit in the Twenty-Fourth Judicial
District Court for the Parish of Jefferson against Walmart for personal injuries
allegedly caused by a July 25, 2017 slip and fall accident at the 3265 Manhattan
Boulevard Walmart store, No. 5722. Plaintiff alleged that she slipped and fell due
to the presence of grapes on the floor of the store’s produce area.
On May 6, 2020, Walmart filed a motion for summary judgment, asserting
that plaintiff cannot put forth any evidence that Walmart had actual or constructive
notice of the condition she alleges caused her to slip and fall on Walmart premises.
Walmart attached to its motion plaintiff’s petition for damages, plaintiff’s
deposition, Walmart’s surveillance video, the incident report, and affidavits of two
Walmart employees verifying the surveillance video. Walmart argued that plaintiff
could not satisfy her burden of showing that Walmart created the condition that
allegedly caused her incident, or that Walmart had actual or constructive notice of
the condition that allegedly caused her incident. Walmart asserted plaintiff had no
corroborating evidence to support her allegation that a Walmart employee dropped
grapes on the floor while stocking the area before her incident. Walmart also
asserted plaintiff had no factual support to show Walmart had actual or constructive
notice of the presence of grapes on the floor prior to her fall.
In her deposition, plaintiff testified that she did not see the grapes but that she
determined she fell on green grapes because of the smudges on her jeans. In
addition, plaintiff relied on the surveillance video taken at the time of her incident
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in asserting that there were grapes on the floor for approximately 50 to 55 minutes,
that there were a few employees stocking items in the area of her incident, and that
an employee cleared something off of her shoe in the same area as her fall. Plaintiff,
however, acknowledged that the surveillance video did not clearly show the floor of
the produce department or the alleged grapes. Plaintiff did not recall at the time of
her fall whether she saw any employees in the area of her incident.
The surveillance video attached to Walmart’s motion is authenticated by
affidavits of two Walmart employees attesting that the video shows the produce
department where plaintiff fell on the day of and at the time of plaintiff’s fall. The
video shows plaintiff’s fall in the produce department of the Walmart store. The
video, however, does not clearly show the floor where plaintiff fell or any Walmart
employee stocking grapes in the vicinity of plaintiff’s fall.
On August 17, 2020, plaintiff filed an opposition to the summary judgment
motion, asserting various arguments, including spoliation of evidence, estoppel,
Walmart’s reliance on improper evidence, and Walmart’s admissions based on the
failure to respond to requests for admissions. Plaintiff attached to her first opposition
correspondence from Walmart’s claims management company, plaintiff’s first set
of discovery requests to Walmart, and Walmart’s responses to those requests. After
plaintiff filed this opposition, however, the summary judgment hearing was
continued, and additional discovery took place in the case.
After obtaining additional discovery, on October 12, 2020, plaintiff filed a
second opposition to Walmart’s motion for summary judgment, asserting that the
resolution of whether Walmart had actual or constructive knowledge is fact-
intensive and, based on the evidence presented, genuine issues of material fact exist
requiring the denial of Walmart’s motion for summary judgment. Plaintiff attached
additional exhibits to her second opposition, including a photo of the area where she
fell, a form entitled “Video Request Form: Customer Incident” in which a Walmart
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employee stated facts about the incident and plaintiff requested the surveillance
video, and safety solutions for the produce department.
On November 2, 2020, Walmart filed a reply brief in further support of its
motion for summary judgment. Walmart’s motion for summary judgment was heard
via Zoom video conferencing due to COVID-19 on November 10, 2020. The trial
court granted Walmart’s motion finding as follows: (1) plaintiff did not carry her
“burden of proof as [it] relates to knew or should have known”; (2) there was “zero
positive evidence whatsoever” to suggest that the grape plaintiff allegedly slipped
and fell on was on the floor any period of time; and (3) the video does not show “a
grape that falls or a grape that exists on the floor.” Plaintiff appealed this judgment.
LAW and ANALYSIS
On appeal, plaintiff asserts that the trial court erred in finding there is no
genuine issue of material fact regarding whether a hazardous condition existed on
the Walmart floor for some period of time before her fall.
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).
An issue is genuine if it is such that reasonable persons could disagree; if only one
conclusion could be reached by reasonable persons, summary judgment is
appropriate as there is no need for trial on that issue. Upton v. Rouse’s Enter., LLC,
15-484 (La. App. 5 Cir. 2/24/16), 186 So.3d 1195, 1198, writ denied, 16-580 (La.
5/13/16), 191 So.3d 1057.
Summary judgment law permits the following documents to be filed in
support of or in opposition to the motion for summary judgment: pleadings,
memoranda, affidavits, depositions, answers to interrogatories, certified medical
records, written stipulations and admissions. La. C.C.P. art. 966 A(4). No additional
documents may be filed with the reply memorandum. La. C.C.P. art. 966 B(3). La.
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C.C.P. art. 966 D(2) states that “The court may consider only those documents filed
in support of or in opposition to the motion for summary judgment and shall consider
any documents to which no objection is made. Any objection to a document shall
be raised in a timely filed opposition or reply memorandum.”
Under La. C.C.P. art. 966 D, the initial burden is on the mover to show that
no genuine issue of material fact exists. If the moving party will not bear the burden
of proof at trial, the moving party must only point out that there is an absence of
factual support for one or more elements essential to the adverse party’s claim,
action, or defense. La. C.C.P. art. 966 D. The nonmoving party must then produce
factual support to establish that he will be able to satisfy his evidentiary burden of
proof at trial. Id. If the nonmoving party fails to do so, there is no genuine issue of
material fact, and summary judgment should be granted. Babino v. Jefferson
Transit, 12-468 (La. App. 5 Cir. 2/21/13), 110 So.3d 1123, 1125.
Appellate courts review a judgment granting or denying a motion for
summary judgment de novo, using the same criteria governing the trial court’s
consideration of whether summary judgment is appropriate. Montalbano v. Persich,
18-602 (La. App. 5 Cir. 5/29/19), 274 So.3d 855, 861; Dufour v. Schumacher Grp.
of Louisiana, Inc., 18-20 (La. App. 3 Cir. 8/1/18), 252 So.3d 1023, writ denied, 18-
1456 (La. 11/20/18), 256 So.3d 991; Bonin v. Westport Ins. Corp., 05-886 (La.
5/17/06), 930 So.2d 906, 910; Schroeder v. Bd. of Supervisors of La. State Univ.,
591 So.2d 342, 345 (La. 1991). An appellate court’s de novo review of the trial
court’s ruling on summary judgment is generally from the same viewpoint as that of
the trial court, but with a fresh consideration of the exhibits and application of the
law. Allday v. Newpark Square I Off. Condo. Ass’n, Inc., 20-358 (La. App. 5 Cir.
8/18/21), 327 So.3d 566. Unlike trial court’s findings of fact, trial court’s rulings on
motions for summary judgment are reviewed without regard or deference because
credibility is not at issue. Id; Montalbano, 274 So.3d at 860-861. Thus, courts of
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appeal review summary judgment evidence and procedure from the same
perspective as the trial court.1
Walmart’s Motion for Summary Judgment
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. Williams v.
Supervalu, Inc., 18-143 (La. App. 5 Cir. 11/7/18), 259 So.3d 547, 551. Although
the owner of a commercial establishment has an affirmative duty to keep the
premises in a safe condition, he is not the insurer of the safety of his patrons. Id.La. R.S. 9:2800.6, the Merchant Liability Statute, imposes a heavy burden of
proof on a plaintiff for claims arising from a fall on a merchant’s premises. Frank
v. Boomtown L.L.C., 12-382 (La. App. 5 Cir. 12/11/12), 106 So.3d 227, 232. In a
negligence claim against a merchant for a slip and fall under La. R.S. 9:2800.6 B,
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. [Emphasis added.]
1 Walmart filed a motion to supplement with a photo asserting that plaintiff submitted a photo different from
the one Walmart produced in discovery. In her brief, plaintiff relies on a photo that was actually attached to
a motion to determine sufficiency of discovery responses not her summary judgment oppositions. Before
oral argument, we denied Walmart’s motion to supplement. Courts of appeal make decisions based on the
trial court record. We do not admit or consider new evidence on appeal. In addition, the trial court, and this
court on de novo review, may only consider evidence admissible under La. C.C.P. art. 966 D(2). The photos
at issue were not filed in support of or in opposition to the motion for summary judgment nor admitted into
evidence during the hearing. No evidence, except exhibits which had been filed with the summary judgment
memoranda, could be considered by the trial court, and no such evidence may be considered on appeal,
even if it is filed elsewhere in the trial record, or in support of or opposition to other motions heard the same
day. Huggins v. Amtrust Ins. Co., et al, 20-516 (La. App. 1 Cir. 12/30/20), 319 So.3d 362, 366-67.
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To satisfy the “constructive notice” requirement, the claimant must prove that
the condition existed for such a period of time that it would have been discovered if
the merchant had exercised reasonable care. La. R.S. 9:2800.6 C(1). Constructive
notice is not proven by the mere presence of an employee of the merchant in the
vicinity in which the condition exists, unless it is shown that the employee knew, or
in the exercise of reasonable care should have known, of the condition. Id. This
element requires that the claimant make a positive showing of the existence of the
condition prior to the fall. White v. Wal-mart Stores, Inc., 97-393 (La. 9/9/97), 699
So.2d 1081, 1086.2
Whether the period of time is sufficiently lengthy that a merchant should have
discovered the condition is necessarily a fact question; however, there remains the
prerequisite showing of some time period. David v. Dollar Tree Stores, Inc., 19-36
(La. App. 5 Cir. 10/2/19), 282 So.3d 329, 332. A claimant who simply shows that
the condition existed without an additional showing that the condition existed for
some time before the fall has not carried the burden of proving constructive notice
as mandated by the statute. Id. Though the time period need not be specific in
minutes or hours, constructive notice requires that the claimant prove the condition
existed for some time period prior to the fall. Id. Mere speculation is not enough to
meet the plaintiff’s burden under La. R.S. 9:2800.6. Frank, 106 So.3d at 232.
Plaintiff asserts that she produced circumstantial evidence identifying a
hazard of slippery fallen grapes near the grape display that was not created shortly
before her fall. Plaintiff relies on the following: (1) her testimony identifying the
substance that caused her fall as smashed green grapes; (2) photographs taken by
Walmart’s manager immediately after plaintiff’s fall allegedly showing that the
smashed green grapes were so heavily soiled and tracked that they appeared
2 A defendant merchant does not have to make a positive showing of the absence of the existence of the
condition prior to the fall. Notwithstanding that such would require proving a negative, the statute simply
does not provide for a shifting of the burden. 699 So.2d at 1086.
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liquefied and blackened; (3) Walmart’s incident report and employee affidavit,
which allegedly establish that plaintiff fell near the grape display; (4) Walmart’s
surveillance video, which allegedly provides circumstantial evidence that the hazard
was not created shortly before plaintiff’s fall; and (5) Walmart’s surveillance video
and employee affidavit, which together prove that Walmart’s employees did not
perform any cleaning or inspection of the area during the hour before plaintiff’s fall
and that instead a Wal-Mart employee was working in the area and should have seen
the hazardous condition.
Upon review, we find that plaintiff cannot satisfy her burden of proving that
a condition presenting an unreasonable risk of harm existed, or that Walmart had
actual or constructive notice of the condition which allegedly caused damages
resulting from plaintiff’s fall, prior to the fall. Specifically, plaintiff cannot show
that there were grapes or a grape on the floor of the Walmart produce area for some
period of time prior to her fall. Although the video shows an employee in the vicinity
of plaintiff’s fall, plaintiff cannot show that there was a hazard present on the floor,
much less that any hazard existed for some period of time before her fall. The video
does not confirm that there were grapes or a grape on the floor. It does not show
someone or something causing a grape to fall on the floor, and moreover, it does not
show others slipping in or avoiding the area where plaintiff fell. Thus, the
surveillance video supports the trial court’s conclusion that the video fails to show
that a grape fell on the floor or existed on the floor at the time of plaintiff’s fall.
In addition, there are no photographs supporting plaintiff’s assertion that her
fall was caused by a smashed grape on Walmart’s floor.
In light of the forgoing, we find no error in the trial court’s granting of
Walmart’s motion for summary judgment, thereby dismissing plaintiff’s claims
against it, and affirm that judgment.
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DECREE
For the reasons stated above, we affirm the trial court’s judgment.
AFFIRMED
21-CA-66 8
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 29, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
21-CA-66
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. SCOTT U. SCHLEGEL (DISTRICT JUDGE)
BRETT P. FENASCI (APPELLANT) J. RAND SMITH, JR. (APPELLANT) JULIE P. JOHNSON (APPELLANT)
STEPHEN M. CHOUEST, SR. (APPELLANT) ISIDRO R. DEROJAS (APPELLEE) PETER S. MARTIN (APPELLEE)
SIDNEY J. HARDY (APPELLEE)
MAILED
CHRISTOPHER JAMES-LOMAX SCOTT J. CHAFIN, JR. (APPELLANT)
(APPELLEE) ATTORNEY AT LAW
ATTORNEY AT LAW 9284 LINWOOD AVENUE
909 POYDRAS STREET SHREVEPORT, LA 71006
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