Kimberly Picard v. Ralph's Market D/B/A RV Trosclair, LLC, and State Farm Fire and Casualty Company ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
KIMBERLY PICARD NO. 2020 CW 0371
VERSUS
RALPH'S MARKET D/B/A RV
TROSCLAIR, L.L.C. AND STATE
FARM FIRE AND CASUALTY SEPTEMBER 23, 2020
COMPANY
In Re: Ralph's Market and State Farm Fire and Casualty
Company, applying for supervisory writs, 23rd Judicial
District Court, Parish of Ascension, No. 116415.
BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.
WRIT DENIED.
MRT
WRC
McDonald, J. dissents and would grant the writ. It is
undisputed that Kimberly Picard visited Ralph's Supermarket on a
regular basis, parked in the same spot, and took the same route
to the front doors nearly every visit. It is also undisputed
that Ms. Picard had seen the water on her prior visits to the
store, and she usually avoided the water. However, on the day
of the accident, Ms. Picard saw the water and decided to walk
through it. Despite plaintiff's position that Ms. Picard did
not see the purported algae in the water, Ms. Picard
acknowledged in her petition that "she slipped and fell in a wet
algae looking substance which had accumulated onto the ground"
and told her husband on the day of the accident that "she
slipped in the green slime." Even if Ms. Picard did not learn
of the presence of the purported algae until after she fell, the
water varied in color in multiple places, which should place a
pedestrian on notice that it could contain substances other than
water. Therefore, given the open and obvious nature of the
water and its variation in color, I cannot conclude that it
presented an unreasonable risk of harm. See Rodriquez v.
Dolgencorp, LLC, 2014-1725 (La. 11/14/14), 152 So.3d 871, 872
(per curiam) (In the absence of 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) . Accordingly, I would grant the summary judgment and
dismiss plaintiff's claims against the defendants.
COURT OF APPEAL, FIRST CIRCUIT