Bridget S. Salzman Versus Matherne's Supermarket at Riverlands, L.L.C. & State Farm Fire & Casualty Company ( 2023 )

BRIDGET S. SALZMAN NO. 22-CA-404
VERSUS FIFTH CIRCUIT
MATHERNE'S SUPERMARKET AT COURT OF APPEAL
RIVERLANDS, L.L.C. & STATE FARM
FIRE & CASUALTY COMPANY STATE OF LOUISIANA
July 13, 2023
Linda Wiseman
First Deputy Clerk
ON APPLICATION FOR REHEARING
Panel composed of Fredericka Homberg Wicker,
Jude G. Gravois, and John J. Molaison, Jr.
REHEARING DENIED WITH REASONS
FHW
JGG
JJM
BRIDGET S. SALZMAN NO. 22-CA-404
VERSUS
MATHERNE'S SUPERMARKET AT FIFTH CIRCUIT
RIVERLANDS, L.L.C. & STATE FARM
FIRE & CASUALTY COMPANY COURT OF APPEAL
STATE OF LOUISIANA
REHEARING DENIED
Upon review, we find that all of the arguments made in appellees’
application for rehearing either are without merit or were fully addressed in
our opinion rendered on June 22, 2023. In rendering our opinion, we stated
the question on review to be simply whether Ms. Salzman presented
sufficient evidence to establish the existence of a genuine issue of material
fact as to whether Matherne’s Supermarket “created” the condition that
caused Ms. Salzman’s alleged injuries as contemplated under La. R.S.
9:2800.6(B)(2).
Consistent with the approach taken by the Louisiana Third and Fourth
Circuit Courts of Appeal in Savoie v. Sw. La. Hosp. Ass’n, 03-982 (La. App.
3 Cir. 2/25/04), 866 So.2d 1078, and Davis v. Cheema, 03-982 (La. App. 4
Cir. 5/22/16), 171 So.3d 984, respectively, and the United States Fifth
Circuit Court of Appeals in Deshotel v. Wal-mart La., L.L.C., 850 F.3d 742(5th Cir. 2017), we opined that a plaintiff may prove that a merchant-
defendant “created” an unreasonably dangerous condition in one of two
ways: either by proving that the merchant itself directly created the condition
or by proving that the merchant was responsible for maintaining the area
where the hazardous condition manifested.
In our opinion, we found only that, considering the specific factual
circumstances in the case before us, the evidence is sufficient to establish the
existence of a genuine issue of material fact as to whether the merchant-
defendant created the condition that caused Ms. Salzman’s fall. In our
opinion, we stated, “As the court in Deshotel stated, our holding ‘only
permit[s] a jury to find [Matherne’s Supermarket] create the hazard; we
make no such finding ourselves.’” We further found that “[c]onsidering
there is evidence sufficient to establish a genuine issue of material fact exists
relating to whether Matherne’s Supermarket created the injury-causing
condition in this case, we find summary judgment at this stage of the
proceedings is inappropriate.” This application for rehearing is accordingly
denied.
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.
CORNELIUS E. REGAN, PRO TEM 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 DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 07/13/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:
22-CA-404
E-NOTIFIED
40th District Court (Clerk)
Honorable J. Sterling Snowdy (District Judge)
Delaney P. Shea (Appellant) William E. Mura, Jr. (Appellant) Leonard M. D'Angelo (Appellee)
MAILED
Warren A. Forstall, Jr. (Appellant) Troy G. Broussard (Appellant)
Attorney at Law Attorney at Law
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