Janice Marks v. William Schultz and Lisa Schultz Individually and William Schultz and Lisa Schultz d/b/a Po Folks Fruits and Vegetables, and Ohio Security Insurance ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 CA 0197
JANICE MARKS
nh
VERSUS
WILLIAM SCHULTZ AND LISA SCHULTZ INDIVIDUALLY
AND WILLIAM SCHULTZ AND LISA SCHULTZ D/ B/ A PO
FOLKS FRUITS AND VEGETABLES, AND OHIO SECURITY
INSURANCE COMPANY
Judgment Rendered:
DEC 1 0 2020
On Appeal from the Eighteenth Judicial District Court
In and for the Parish of West Baton Rouge
State of Louisiana
Docket No. 43, 874
Honorable J. Kevin Kimball, Judge Presiding
Richard G. Whitworth Counsel for Plaintiff/Appellant,
Lohr E. Miller Janice Marks
Baton Rouge, Louisiana
Matthew J. Davis Counsel for Defendants/ Appellees,
Jonathan D. Mayeux William Schultz and Lisa Schultz
Baton Rouge, Louisiana Individually and William Schultz and
Lisa Schultz d/ b/ a Po Folks Fruits and
Vegetables and Ohio Security
Insurance Company
BEFORE: HIGGINBOTHAM, THERIOT AND WOLFE, JJ.
WOLFE, J.
Plaintiff-appellant, Janice Marks, appeals the October 10, 2019 judgment of
the trial court rendered in favor of defendants -appellees, William Schultz and Lisa
Schultz Individually and William Schultz and Lisa Schultz d/ b/ a Po Folks Fruits
and Vegetables and Ohio Security Insurance Company ( collectively " defendants"
or " Po Folks"), granting defendants' Motion for Summary Judgment and
dismissing Mrs. Marks' claims against defendants, with prejudice. For the
following reasons, we reverse the trial court' s October 10, 2019 judgment and
remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
On August 24, 2016 between 12: 30 p.m. and 1: 00 p.m., Mrs. Marks entered
Po Folks to purchase cantaloupes. Po Folks is an open- air produce stand, where
the produce is displayed under a roof. Upon entering the store, Mrs. Marks saw a
bin containing cantaloupes and a bin containing watermelons. The bins were made
of cardboard, and the watermelon bin sat on a wooden pallet. The cantaloupe bin
was positioned to the right side of the watermelon bin.
Mrs. Marks walked directly to the cantaloupe bin. She selected two
cantaloupes, held them to her chest, looked toward the checkout stand to the left,
and turned in an attempt to proceed to the checkout stand. As she started to take a
step, her foot became caught in the pallet located under the watermelon bin, and
she fell.
After Mrs. Marks fell and was loaded into an ambulance, Mrs. Marks' son,
Todd Marks, received a phone call, notifying him of the accident. Mr. Marks
arrived at Po Folks within twenty-five or thirty minutes after receiving the phone
call. He took photographs of the fruit bins, including the watermelon bin at issue,
and the area where Mrs. Marks fell.
2
On August 18, 2017, Mrs. Marks filed a Petition for Damages, naming
William Schultz and Lisa Schultz, individually and d/ b/ a Po Folks Fruits and
Vegetables, and Po Folks' insurer, Ohio Insurance Company. Mrs. Marks alleged
her injuries and damages were caused by the negligence of Po Folks, which failed
to exercise reasonable care to keep the aisles, passageways, and floors in a
reasonably safe condition and failed to take reasonable efforts to keep the premises
free of any hazardous conditions. Mrs. Marks alleged the conditions of the aisles
and passageways at Po Folks created an unreasonable risk of harm, was
unreasonably dangerous in normal use, resulted in a vice or defect in the custody
and control of defendants, was reasonably foreseeable, and that Po Folks had
constructive notice and failed to remedy the defect.
On April 12, 2019, defendants filed a Motion for Summary Judgment,
arguing that Mrs. Marks could not satisfy her evidentiary burden of showing that
the display upon which she allegedly tripped constituted an unreasonably
dangerous condition that was reasonably foreseeable, as it was open and obvious.
Attached to the motion were the deposition of Mrs. Marks with photographs
attached thereto, the deposition of Mr. Marks with photographs attached thereto,
and the affidavit of Lisa Schultz.
Mrs. Marks filed a Memorandum in Opposition to Defendants' Motion for
Summary Judgment, offering an expert' s opinion that a hazardous condition
existed at Po Folks that was not open and obvious, thus, creating a genuine issue of
material fact precluding summary judgment. Attached to the opposition were
excerpts from the depositions of Mrs. Marks and Mr. Marks as well as the affidavit
of John F. Leyenberger, a safety expert.
The trial court heard the Motion for Summary Judgment on October 1, 2019
and granted the motion in open court. On October 10, 2019, the trial court signed a
3
judgment, granting defendants' Motion for Summary Judgment and dismissing
Mrs. Marks' claims against defendants with prejudice.
Mrs. Marks now appeals, assigning as error the trial court' s granting of the
Motion for Summary Judgment, where she argues such was based on the trial
court' s inappropriate evaluation of the weight and credibility of unchallenged
expert testimony.
LAW AND ANALYSIS
Summary judgment procedure is favored and " is designed to secure the just,
speedy, and inexpensive determination of every action ... and shall be construed to
accomplish these ends." Jackson v. Wise, 2017- 1062 ( La. App. 1st Cir. 4/ 13/ 18),
249 So. 3d 845, 850, writ denied, 2018- 0785 ( La. 9/ 21/ 18), 252 So. 3d 914 ( quoting
La. Code Civ. P. art. 966( A)(2)). After an opportunity for adequate discovery, a
motion for summary judgment shall be granted if the motion, memorandum, and
supporting documents show there is no genuine issue as to material fact and that
the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966
A)(3). A genuine issue of material fact is one as to which reasonable persons
could disagree; if reasonable persons could reach only one conclusion, there is no
need for trial on that issue and summary judgment is appropriate. Campbell v.
In
Dolgencorp, LLC, 2019- 0036 ( La. App. 1 st Cir. 1/ 9/ 20), 294 So. 3d 522, 526.
reviewing the trial court' s decision on a motion for summary judgment, this court
applies a de novo standard of review using the same criteria applied by the trial
courts to determine whether summary judgment is appropriate. Jackson, 249
So. 3d at 850.
The burden of proof rests with the mover. La. Code Civ. P. art. 966( D)( 1).
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
M
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. Id. 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. Id.A fact is " material" when its existence or nonexistence may be essential to
the plaintiff' s cause of action under the applicable theory of recovery and it
potentially insures or precludes recovery, affects a litigant' s ultimate success, or
determines the outcome of the legal dispute. Primeaux v. Best Western Plus
Houma Inn, 2018- 0841 ( La. App. 1st Cir. 2/ 28/ 19), 274 So. 3d 20, 27. Simply put,
a " material" fact is one that would matter on the trial on the merits. Id. Any doubt
as to a dispute regarding a material issue of fact must be resolved against granting
the motion and in favor of a trial on the merits. Id. Because the applicable
substantive law determines materiality, whether a particular fact in dispute is
material must be viewed in light of the substantive law applicable to the case. Id.At the summary judgment stage, a court should remain cognizant that: ( 1)
the trial court cannot make credibility determinations on a motion for summary
judgment; ( 2) the court must not attempt to evaluate the persuasiveness of
competing scientific studies, and in performing its gatekeeping analysis, the court
must " focus solely on the principles and methodology, not on the conclusions they
generate"; ( 3) the court " must draw those inferences from the undisputed facts
which are most favorable to the party opposing the motion"; and ( 4) most
importantly, because summary judgments deprive the litigants of the opportunity to
present their evidence to a jury, they should be granted only when the evidence
presented at the motion for summary judgment, including admissible expert
opinion evidence, establishes that there is no genuine issue of material fact in
dispute. Independent Fire Insurance Co. v. Sunbeam Corp., 99- 2181 ( La.
5
2/ 29/ 00), 755 So.2d 226, 235- 36. Thus, if a party submits expert opinion evidence
in opposition to a motion for summary judgment that would be admissible under
Daubert v. Merrell Dow Pharm., Inc., 509 U. S. 579, 113 S. Ct. 2786, 125
L.Ed.2d 469 ( 1993) ( and the other applicable evidentiary rules) and is sufficient to
allow a reasonable juror to conclude that the expert' s opinion on a material fact
more likely than not is true, the trial court should deny the motion and let the issue
be decided at trial. Independent Fire Insurance Co., 755 So. 2d at 236.
The applicable substantive law in this case is set forth in La. R.S. 9: 2800. 6,
which provides in pertinent 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.
A merchant owes a duty to persons using his premises to exercise reasonable
care to keep such premises in a reasonably safe condition. Primeaux, 274 So. 3d at
28 ( citing La. R.S. 9: 2800. 6( A)). The absence of an unreasonably dangerous
condition implies the absence of a duty on the part of the defendant. Id.
In order to prove that a merchant is liable for damages sustained as a result
of a fall due to a condition that existed in or on the merchant' s premises, a plaintiff
m
must prove by a preponderance of the evidence, through either direct or
circumstantial evidence: ( 1) the existence of a condition that presented an
unreasonable risk of harm which was reasonably foreseeable; ( 2) the merchant' s
actual or constructive notice of the condition; and ( 3) the merchant' s failure to
exercise reasonable care. Campbell, 294 So. 3d at 528; La. R. S. 9: 2800. 6( B).
Failure to prove any one of the foregoing requirements is fatal to a plaintiff' s case.
Williams v. Liberty Mutual Fire Insurance Co., 2016- 0996 ( La. App. 1 st Cir.
3/ 13/ 17), 217 So. 3d 421, 424, writ denied, 2017- 0624 ( La. 6/ 5/ 17), 219 So. 3d 338.
Although the owner of a commercial establishment has an affirmative duty
to keep the premises in a safe condition, merchants are not insurers of their
patrons' safety, and a customer is under a duty to use ordinary care to avoid injury.
Jackson -Silvan v. State Farm Casualty Insurance Co., 2014- 0939 ( La. App. 1st
Cir. 1/ 7/ 15), 2015 WL 115406, * 4 ( unpublished), writ denied, 2015- 0637 ( La.
5/ 22/ 15), 171 So. 3d 252; see also Williams, 217 So. 3d at 424. A merchant is not
absolutely liable every time an accident happens. Williams, 217 So. 3d at 424;
Jackson -Silvan, 2015 WL 115406, at * 4.
As outlined above, the defendants' Motion for Summary Judgment asserts
that Mrs. Marks will be unable to satisfy her evidentiary burden of showing that
the display upon which she allegedly tripped constituted an unreasonably
dangerous condition. In this regard, a hazardous condition is one that creates an
unreasonable risk of harm to customers under the circumstances. Campbell, 294
So. 3d at 529. In determining whether a condition is unreasonably dangerous,
courts have adopted a four-part risk -utility balancing test. Williams, 217 So. 3d at
425. This test requires consideration of: ( 1) the utility of the complained -of
condition; ( 2) the likelihood and magnitude of harm, which includes the
obviousness and apparentness of the condition; ( 3) the cost of preventing the harm;
and ( 4) the nature of the plaintiff' s activities in terms of its social utility or whether
7
it is dangerous by nature. Id. Simply put, the trier of fact must decide whether the
social value and utility of the hazard outweigh, and thus justify, its potential harm
to others. Id.
The second prong of the risk -utility balancing test focuses on whether the
defective condition is obvious and apparent, or as it has come to be commonly
known, " open and obvious." Williams, 217 So. 3d at 425. Generally, a defendant
does not have a duty to protect against an open and obvious hazard. Id. In order
for a defect to be considered open and obvious, the danger created by that defect
must be apparent to all, i.e., everyone who may potentially encounter it. Id.
Whether a defect is open and obvious may be resolved on summary
judgment. See Ludlow v. Crescent City Connection Marine Division, 2015-
1808 ( La. 11/ 16/ 15), 184 So. 3d 21 ( per curiam) ( any danger presented by a
concrete barrier on a vehicle ramp was " obvious and apparent to anyone who
might potentially encounter it"); Allen v. Lockwood, 2014- 1724 ( La. 2/ 13/ 15),
156 So. 3d 650, 653 ( per curiam) ( unpaved grassy parking area where accident
occurred was open and apparent); Rodriguez v. Dolgencorp, LLC, 2014- 1725
La. 11/ 14/ 14), 152 So. 3d 871, 872 ( per curiam) ( shopping cart that patron tripped
over was open and obvious). Thus, in the absence of any material issues of fact, a
court may determine by summary judgment that a defect is open and obvious and,
therefore, does not present an unreasonable risk of harm. Williams, 217 So. 3d at
425.
In the case before us, the trial court was tasked with deciding if there was a
genuine issue of material fact as to whether the condition of the watermelon
display created an unreasonable risk of harm. Summary judgment is proper when
no legal duty is owed because the condition encountered is obvious and apparent to
all and not unreasonably dangerous. Williams, 217 So. 3d at 426.
N.
In support of its motion, Po Folks highlighted deposition testimony from
Mrs. Marks, showing that she had been to Po Folks often and she saw the
watermelon display prior to falling. Additionally, Po Folks attached deposition
testimony from Mr. Marks, whereby he stated that the lighting depicted in the
photographs was the same as the lighting when Mrs. Marks was in the store, and
there was nothing obscuring the view of the pallet of watermelons. Po Folks also
pointed to the photographs taken by Mr. Marks at least twenty- five to thirty
minutes after the accident, which depict the watermelon pallet as jutting out further
than the cantaloupe bin creating a T- shape and reflect that the watermelon bin was
stacked directly on top of the pallet without the pallet protruding from underneath
the watermelon bin. When looking at the post -accident photograph of the
watermelon bin attached to his deposition as Exhibit D, showing the bin stacked
directly on top of the pallet, Mr. Marks testified that, to his knowledge, the pallet
was in the same condition as it was at the time of Mrs. Marks' accident.
In further support of the motion, Po Folks attached the affidavit of Lisa
Schultz, the owner of Po Folks at the time of the accident. Mrs. Schultz attested
that Po Folks purchased watermelons from suppliers and produce wholesalers to
display and sell, and, for at least fifteen years, watermelons were shipped in bins
made of rigid cardboard, which extended approximately three feet tall and were
placed on top of 4x4 wooden pallets. She stated that the pallet and bin are
designed to be placed directly on the sales floor as a freestanding display. Mrs.
Schultz stated that when they are full, the bins contain between twenty and thirty
watermelons, weigh several hundred pounds, and can only be moved by using
either a pallet jack or a forklift or when the bin is empty. Mrs. Schultz further
attested that each bin has large arrows running from the top of the bin down to the
bottom of the pallet, and the arrows are striped to increase visibility and are several
inches wide. Mrs. Schultz stated that watermelon displays such as these are
E
extremely common in Louisiana during watermelon season and can be found in
any grocery store or produce stand. Lastly, Mrs. Schultz attested that, in her
twenty- six years of owning Po Folks, she has never had a customer trip or fall over
a watermelon display.
In opposition to Po Folks' motion, Mrs. Marks submitted the affidavit of
John F. Leyenberger, who is a board- certified Safety Professional, a Chartered
Property Casualty Underwriter, an Associate in Risk Management, and a
professional member of the American Society of Safety Professionals. In
rendering his opinion, Mr. Leyenberger relied upon his May 17, 2019 inspection of
the Po Folks store, the depositions of Mrs. Marks and Mr. Marks and the exhibits
attached thereto, Mr. Marks' photographs and those of a claims adjuster,
photographs taken during his store inspection, pleadings, discovery responses, an
incident report, and various safety publications.
In his affidavit, Mr. Leyenberger opined that the watermelon display
placement next to the cantaloupe bin created an unreasonable hazard, which
directly caused Mrs. Marks' fall. He stated that, at the time of the accident, the
watermelon cardboard shipping container and the pallet beneath were not properly
positioned and obstructed the aisle. In his opinion, the position of the cardboard
shipping container and the pallet, extending past the other merchandise display
bins, is not the typical or recommended method to set up retail floor displays.
Further, Mr. Leyenberger attested this did not follow retail industry floor display
standards, and it expanded a trip hazard already known to exist within the retail
industry. Mr. Leyenberger opined such would be unexpected by customers
shopping close to the open bins.
Mr. Leyenberger further opined that Po Folks failed to install readily -
available safety devices such as pallet skirts that would have reduced the risk of a
customer catching his or her foot in the pallet opening. In this regard, Mr.
10
Leyenberger stated that black -colored arrows printed on the cardboard watermelon
shipping container did not comply with ANSI or ISO standards on safety warning
signs, color, or design. He said the black arrows on the subject container are
similar to orientation labels ( i.e. " This End Up") normally printed in black ink on
shipping boxes, creating confusion in recognizing the arrows as a hazard warning
label. Mr. Leyenberger pointed out that, in contrast, a second watermelon
container next to the subject container had a red danger color arrow printed on it
and a red -colored triangle flap highlighting the pallet corner trip hazard. Mr.
Leyenberger further stated that cardboard flaps on the cardboard shipping
containers at the pallet corners fail to highlight the known trip exposure to
customers.
Mr. Leyenberger found Po Folks provided inadequate procedures on regular
safety sweeps, safety inspections, and worker training, and these inadequate
procedures allowed hazardous conditions to exist for extended periods of time.
Furthermore, he opined that the pallet placement under the watermelon shipping
container was not obvious and apparent, and the inadequately marked pallet corner
was not obvious when standing in front of the cantaloupe bin. Mr. Leyenberger
stated that the combination of the watermelon shipping container, protruding out
several inches from the fruit bins, and the unmarked corner of the pallet exposed
beyond the subject cardboard shipping container created a hazardous trip condition
which was not typical or recommended placement in retail stores.
Based on the foregoing opinions and observations as well as retail industry
customs and national safety standards, Mr. Leyenberger concluded as follows: the
watermelon display was improperly arranged beyond the other two produce bins,
creating a hazardous condition which, when combined with inadequate warning
labels on the subject shipping container, created a dangerous trip and fall hazard
not obvious to customers shopping close to the open -top produce bins; the informal
11
procedures and inadequate employee training in proper display placement and
regular floor safety inspections resulted in the dangerous placement and inadequate
warnings in the subject container; and Po Folks did not provide a reasonably safe
place for customers to shop by allowing a known dangerous condition to exist,
which directly caused Mrs. Marks' trip and fall incident, resulting in injuries.
Following a hearing on Po Folks' Motion for Summary Judgment, the trial
court granted the motion, offering the following oral reasons for judgment:
I think the pallet was on the floor of the produce stand where one
would expect it to be. The black arrow, personally from looking at
the pictures, to me, that' s more obvious than the red one, because the
red one is just a little short one down low.
The black one is all the way down, and whether I think they knew
what it meant or not, it should draw your attention to look down,
whether they thought it was to shift that way or not, I don' t know if
that matters. I think the witness said she saw it when she went there.
I think the shopper, using reasonable caution, should have seen the
box of melons and the pallet under it, especially in the setting there in
a fruit stand like that.
I don' t think the expert' s opinion automatically makes something
unreasonably dangerous. I don' t think that by looking at the pictures
that that condition is unreasonably dangerous.
I don' t think the Plaintiffs have met their burden of the question of
unreasonably dangerous.
In the instant case, Mrs. Marks has the burden of proving liability, and we
find Mrs. Marks raised several questions of fact concerning the existence and
condition of the purported hazard. Our de novo review reflects that, in addition to
the testimony highlighted by defendants, Mrs. Marks also testified that she had not
been to Po Folks in a year or two and, when asked what was different from when
she used to go to the store, she responded, " Everything." She stated she was not
familiar with the layout of this location. Mrs. Marks further testified that the
photographs of the accident scene, as referenced by defendants, do not depict how
the watermelon bin looked at the time of the accident. Contrary to the positioning
of the watermelon bin in the photographs attached to her deposition, which show
12
the watermelon bin stacked directly on top of a pallet, Mrs. Marks stated the
watermelon bin was pushed back on the pallet, which placed the watermelon bin in
a straight line with the other cardboard bins, at the time of her fall. Mrs. Marks
testified that, due to this arrangement, the watermelon bin itself was " even with"
the front of the cantaloupe bin, and she saw a straight pattern and a " clear shot" in
front of her.
Furthermore, although Mrs. Marks saw the watermelon bin, she testified as
follows: " What I didn' t see was that there was a difference. The watermelon stand
was sitting on a crate. It was the only one that was sitting on a ... pallet. And it
was protruding forward more than the others." Mrs. Marks added that "[ f]rom the
top the cardboard containers were in a straight line and that' s what I saw and later
found out that the watermelon pallet from the bottom was protruding." Mrs.
Marks' testimony was that the pallet underneath the watermelon bin was sticking
out two to four inches beyond the cardboard bin. When looking at the
photographs, Mrs. Marks maintained that "[ t]he watermelons were pushed back"
and "[ t]here was more of the wood." Additionally, although Mr. Marks testified
that the pallet in the photograph attached to his deposition was in the same
condition as it was at the time of Mrs. Marks' fall, he acknowledged that he was
not present at the time of the accident.
In her deposition, Mrs. Marks further testified that she did not notice the
arrows on the side of the watermelon box and does not know what they mean. In
this regard, she testified that the first time she saw the pallet was from the floor
after she fell.
Despite her testimony that the position of the watermelon bin was different
at the time of her accident and the time her son took photographs, Mrs. Marks
stated she has no evidence that anyone moved the pallet of watermelons after her
fall. Nevertheless, in addition to his own photographs, Mr. Leyenberger relied on
13
the photographs taken by Mr. Marks in rendering his opinion. Mr. Leyenberger
still concluded the watermelon display was improperly arranged beyond the other
two produce bins creating a hazardous condition which, when combined with
inadequate warning labels on the subject shipping container, gave rise to a
dangerous trip and fall hazard not obvious to customers shopping close to the
open -top produce bins.
As Mrs. Marks pointed out in her first assignment of error, defendants did
not challenge Mr. Leyenberger' s qualifications, methodology, or conclusions.
Furthermore, defendants raised no objection to Mr. Leyenberger' s affidavit, in
accordance with La. Code Civ. P. art. 966( D)( 2), and offered no countervailing
expert affidavit to support their Motion for Summary Judgment. Nevertheless, as
outlined above, the trial court stated " I don' t think the expert' s opinion
automatically makes something unreasonably dangerous. I don' t think that by
looking at the pictures that that condition is unreasonably dangerous."
Accordingly, we agree with Mrs. Marks that the trial court conducted an
impermissible credibility determination.'
Defendants rely on several cases to support their position that the
watermelon display was not unreasonably dangerous, specifically Upton v.
Rouse' s Enterprise, LLC, 2015- 484 ( La. App. 5th Cir. 2/ 24/ 16), 186 So. 3d 1195,
writ denied, 2016- 0580 ( La. 5/ 13/ 16), 191 So. 3d 1057, Reed v. Home Depot
USA, Inc., 37, 000 ( La. App. 2d Cir. 4/ 9/ 03), 843 So. 2d 588, writ denied, 2003-
1638 ( La. 10/ 10/ 03), 855 So. 2d 345, Primrose v. Wal-Mart Stores, Inc., 48, 370
La. App. 2d Cir. 10/ 2/ 13), 127 So. 3d 13, and Taylor v. Wal-Mart Stores, Inc.,
1 See Thompson v. Center for Pediatric and Adolescent Medicine, L.L.C., 2017- 1088 ( La.
App. 1st Cir. 3/ 15/ 18), 244 So. 3d 441, 446-47, writ denied, 2018- 0583 ( La. 6/ 1/ 18), 243 So. 3d
1062 finding that, in the absence of an objection, the trial court is statutorily obligated to
consider the expert' s opinions under La. Code Civ. P. art. 966( D)( 2). At that point, in
determining whether the evidence creates a genuine issue of material fact, the trial court cannot
make credibility determinations, evaluate testimony, or otherwise weigh the evidence. Id. at
447. The trial court must assume all affiants are credible. Id.
14
No. CIV.A. 05- 1346- A, 2006 WL 1476031 ( W.D. La. May 23, 2006). However,
we find these cases distinguishable, where there was no issue of fact therein as to
the positioning of the pallet and display and no expert testimony was offered
therein by the plaintiffs.
Conversely, in Dupas v. Travelers Property Casualty Insurance Co.,
2000- 12 ( La. App. 3d Cir. 5/ 3/ 00), 762 So. 2d 127, writ denied, 00- 1541 ( La.
6/ 30/ 00), 766 So. 2d 548, as cited by Mrs. Marks, a customer was injured in a store,
while trying to select a broom from a display set on a pallet. As she attempted to
reach across the pallet display and up for a broom, she tripped and fell face
forward. She alleged the pallet was unreasonably dangerous and called a safety
expert, who testified that the platform created a hazard and should have been
painted a contrasting color to distinguish it from the floor. After the customer
presented her case in chief, the store moved for directed verdict, arguing that she
did not present direct evidence that she tripped on a store display and did not
present expert evidence specifically stating that the display presented an
unreasonable danger. The trial court denied the motion for directed verdict. The
Third Circuit Court of Appeal affirmed, noting that the store did not meet its
burden of proving that no reasonable person could find that the customer did not
trip over the platform and considering the expert testimony, a reasonable person
could find that the display presented an unreasonably dangerous condition. Id. at
128- 30.
Herein, Mrs. Marks has presented unrebutted expert summary judgment
evidence, in opposition to defendants' motion, to show the watermelon display was
improperly arranged, creating a hazardous condition, and Po Folks failed to
provide a reasonably safe place to shop by allowing this known dangerous
condition to exist. Further, Mrs. Marks' expert summary judgment evidence
reflects that Po Folks did not install pallet skirts, which would have reduced the
15
risk of a customer catching his or her foot in the pallet opening, and the pallet
placement under the watermelon shipping container and inadequately marked
pallet corner was not obvious and apparent when standing in front of the
cantaloupe bin. Thus, although the watermelon display itself may have been large
and obvious, it is not clear that the display pallet, which caused Mrs. Marks to trip,
was open and obvious. Considering such, we find a reasonable juror could find
that the pallet herein posed an unreasonable risk of harm.
We further find the deposition testimony and photographs reveal a genuine
issue of material fact as to whether the pallet was protruding from underneath the
watermelon bin into the walkway, at the time of accident. If the watermelon bin
was in fact pushed back on the pallet, making the front of the watermelon bin even
with the front of the cantaloupe bin and making the pallet protrude from
underneath the bin, then that may have led to an unreasonably dangerous
condition, which was not readily apparent to all. On this record, it is not clear, as a
matter of law, that the watermelon display pallet and its location were open and
obvious and did not create an unreasonably dangerous condition under the
circumstances. Moreover, it is not proper to make credibility determinations on a
motion for summary judgment as the trial court did in this case. Thus, based on
our de novo review, we find that the trial court erred in granted defendants' Motion
for Summary Judgment.
CONCLUSION
For these reasons, we reverse the trial court' s October 10, 2019 judgment,
which granted the Motion for Summary Judgment filed by defendants, William
Schultz and Lisa Schultz Individually and William Schultz and Lisa Schultz d/ b/ a
Po Folks Fruits and Vegetables and Ohio Security Insurance Company, and
dismissed Janice Marks' claims against defendants, with prejudice. We remand
this case for further proceedings.
16
Appeal costs are assessed against the appellees, William Schultz and Lisa
Schultz Individually and William Schultz and Lisa Schultz d/ b/ a Po Folks Fruits
and Vegetables and Ohio Security Insurance Company.
REVERSED AND REMANDED.
17