Gregory Allen Campbell v. Dolgencorp, LLC ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
j
NO. 2019 CA 0036
l
GREGORY ALLEN CAMPBELL
VERSUS
DOLGENCORP, LLC
Judgment Rendered.
JAN 0 9 ? n? R
Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. 647731
The Honorable William A. Morvant, Judge Presiding
Charlotte C. McDaniel McGehee Counsel for Plaintiff/Appellant
Baton Rouge, Louisiana Gregory Allen Campbell
Kaye N. Courington Counsel for Defendant/Appellee
Daniel R. Estrada DG Louisiana, LLC
New Orleans, Louisiana
BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.
J
THERIOT, J.
Gregory Allen Campbell appeals the Nineteenth Judicial District Court' s
judgment granting DG Louisiana, LLC' s motion for summary judgment. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On April 21, 2016, Gregory Allen Campbell filed a petition for damages,
naming Dolgencorp, LLC (" Dolgencorp") as defendant. In the petition, Campbell
alleged that he was injured at a store owned and operated by Dolgencorp.
Specifically, Campbell alleged that while he was in the store' s bathroom, he
encountered a wet area with no warning signs posted where he slipped and fell.
Campbell claimed that the wet area was caused by a mop bucket that had been left
to drain.
On June 6, 20169 DG Louisiana, LLC (" DG") filed a notice of removal,
removing the lawsuit from the Nineteenth Judicial District Court, Parish of East
Baton Rouge, State of Louisiana, to the United States District Court for the Middle
District of Louisiana. DG averred that it had been incorrectly referred to in
Campbell' s petition as Dolgencorp. The matter was subsequently remanded back
to the Nineteenth Judicial District Court.
On September 6, 2016, Campbell filed a supplemental petition for damages,
naming DG as a defendant and reiterating all of the allegations of the original
petition. On February 2, 2017, Campbell filed a motion and order to dismiss
Dolgencorp, on the grounds that DG is the proper defendant. The trial court signed
an order dismissing Dolgencorp on February 3, 2017.
On July 2, 2018, DG filed a motion for summary judgment, asserting that
Campbell cannot satisfy his burden of proof under La. R.S. 9: 2800. 6. On August
27, 2018, Campbell fax -filed a motion and order to strike DG' s motion for
summary judgment and for sanctions. Campbell argued that DG' s motion for
2
summary judgment was premature, alleging that DG had prevented Campbell from
conducting discovery and ignored several attempts to set up a 1442 deposition of
DG. On the same date, Campbell fax -filed an opposition to DG' s motion for
summary judgment. On the following day, August 28, 2018, Campbell filed
several exhibits supporting the opposition to DG' s motion for summary judgment.
On September 5, 2018, DG filed a reply to Campbell' s opposition to the
motion for summary judgment, in which DG alleged that Campbell' s exhibits were
untimely pursuant to La. Code Civ. P. art. 966. Specifically, DG argued that
because the hearing on the motion for summary judgment was set for September
101 2018, the exhibits should have been filed and served on August 27, 2018. DG
pointed out that Campbell fax -filed the opposition on August 27, 2018, but did not
file the exhibits in support of that opposition until August 28, 2018.
The hearing on the motion for summary judgment was held on September
101 2016. On October 9, 2018, the trial court signed a judgment ordering that
Campbell' s exhibits be stricken as untimely. The trial court also granted DG' s
motion for summary judgment. Finally, the trial court denied Campbell' s motion
to strike DG' s untimely motion for summary judgment and for sanctions. In oral
reasons, the trial court stated that Campbell cannot satisfy any of the elements of
La. R.S. 9: 2800. 6. Specifically, the trial court noted that Campbell did not know
what he had slipped in, how long the unknown substance had been there, or
whether the employees knew about the unknown substance. The trial court further
noted that even if Campbell could satisfy the first element of La. R.S. 9: 2800. 6( B)
the condition presented an unreasonable risk of harm to the claimant and that risk
of harm was reasonably foreseeable), Campbell could not prove that DG had either
created or had actual or constructive notice of the condition that caused the
damage, nor could Campbell prove that DG had failed to exercise reasonable care.
This appeal followed.
3
ASSIGNMENTS OF ERROR
Campbell assigns the following as error.
1) The trial court erred in granting summary judgment, which was
procedurally defective.
2) The trial court erred in finding that the plaintiff could not show
what he actually slipped in.
3) The trial court erred in proffering evidence and not allowing
discovery to be introduced in opposition to the motion for summary
judgment.
STANDARD OF REVIEW
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. 1 Cir. 4/ 13/ 18);
249 So. 3d 845, 850, writ denied, 2018- 0785 ( La. 9/ 21/ 18); 252 So. 3d 914, u
oting
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. Jackson v. City
of New Orleans, 2012- 2742 ( La. 1/ 28/ 14); 144 So. 3d 876, 882, cert. denied, 574
U.S. 869, 135 S. Ct. 197, 190 L.Ed.2d 130 ( 2014). In 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 v. Wise, 249 So. 3d at 850.
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. Code Civ. P. art. 966( D)( 1).
DISCUSSION
The Exhibits
We first address the admissibility of the exhibits attached to Campbell' s
opposition to DG' s motion for summary judgment. As stated above, the trial
court' s judgment ordered that Campbell' s exhibits be stricken as untimely.'
Campbell did not assign as error that the trial court erred in striking Campbell' s
exhibits as untimely, and therefore, that issue is not before us. See Doyle v.
Lonesome Development, Limited Liability Company, 2017- 0787 ( La. App. 1 Cir.
7/ 18/ 18); 254 So. 3d 714, 727 n.3, writ denied, 2018- 1369 ( La. 11/ 14/ 18); 256
So. 3d 291; see also Bihm v. Deca Sys., Inc., 2016- 0356 ( La. App. 1 Cir. 8/ 8/ 17),
226 So. 3d 466, 476. Instead, Campbell claims that the trial court should have
considered the photographs that were attached as exhibits because Campbell had
already given those photographs to DG during discovery without any objection
from DG.
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. La. Code Civ. P. art. 966( D)( 2). The only
documents that may be filed in support of or in opposition to a motion for
summary judgment are pleadings, memoranda, affidavits, depositions, answers to
Any opposition to the motion and all documents in support of the opposition shall be filed and served in
accordance with Article 1313 not less than fifteen days prior to the hearing on the motion. La. Code Civ. P. art.
966( B)( 2).
5
interrogatories, certified medical records, written stipulations, and admissions. La.
Code Civ. P. art. 966( A)(4). Accordingly, providing the photographs to DG during
discovery does not make those photographs competent summary judgment
evidence. Because the photographs were not properly submitted as summary
judgment evidence pursuant to La. Code Civ. P. art. 966, we cannot consider the
photographs on appeal. Thus, Campbell' s exhibits are inadmissible.
Assignment of Error # I
In his first assignment of error, Campbell argues that the trial court erred in
granting summary judgment, because it was procedurally defective. Specifically,
Campbell argues that DG' s motion for summary judgment is premature, because it
was filed before Campbell had an opportunity to depose DG. Campbell asserts
that DG refused to participate in meaningful discovery.
Louisiana Code of Civil Procedure art. 966( A)(3) provides that a motion for
summary judgment may be granted after an opportunity for adequate discovery if
the motion, memorandum, and supporting documents show there is no genuine
issue as to material fact and the mover is entitled to judgment as a matter of law.
The requirement that a summary judgment should be considered only after
adequate discovery" has been construed to mean that there is no absolute right to
delay action on a motion for summary judgment until discovery is complete;
rather, the requirement is only that the parties have a fair opportunity to carry out
discovery and to present their claim. Unless a party shows a probable injustice, a
suit should not be delayed pending discovery when it appears at an early stage that
there is no genuine issue of fact. Primeaux v. Best Western Plus Houma Inn, 2018-
0841 ( La. App. 1 Cir. 2/ 28/ 19); 274 So. 3d 20, 32.
A defendant' s motion for summary judgment may be made at any time.
Ellis v. Louisiana Bd. of Ethics, 2014- 0112 ( La. App. 1 Cir. 12/ 30/ 14); 168 So. 3d
714, 725, writ denied, 2015- 0208 ( La. 4/ 17/ 15); 168 So. 3d 400 ( citing La. Code
R
Civ. P. art. 966( A)( 1)). It is not an abuse of the trial court' s wide discretion in
discovery matters to entertain a motion for summary judgment before discovery
has been completed. Trial courts in Louisiana have broad discretion when
regulating pre- trial discovery, which discretion will not be disturbed on appeal
absent a clear showing of abuse. It is within the trial court' s discretion to render a
summary judgment or require further discovery. Dortch v. Jane Doe & Chrysler
Group, LLC, 2016- 0933 ( La. App. I Cir. 4/ 6/ 17); 217 So. 3d 449, 454.
Campbell' s petition was filed on April 21, 2016. DG was added as a
defendant on September 6, 2016. DG filed its motion for summary judgment on
July 2, 2018, nearly two years after being added as a defendant. Campbell asserts
that DG refused to participate in meaningful discovery. Despite his assertion that a
deposition pursuant to La. Code Civ. P. art. 1442 was needed, Campbell did not
request a continuance of the summary judgment hearing. See Hughes v. Home
Depot U.S.A., Inc., 2015- 0970 ( La. App. 1 Cir. 12/ 23/ 15); 2015 WL 9466870, at
3 ( unpublished opinion); see also Judson v. Davis, 2004- 1699 ( La. App. 1 Cir.
6/ 29/ 05); 916 So. 2d 1106, 1116, writ denied, 2005- 1998 ( La. 2/ 10/ 06); 924 So.2d
167. Additionally, Campbell did not file a motion to compel discovery.
Considering the trial court' s broad discretion in regulating discovery, we find no
clear showing of abuse of discretion. This assignment of error lacks merit.
Assignment of Error #2
In his second assignment of error, Campbell argues that the trial court erred
in finding that the plaintiff could not show what he actually slipped in and, in other
words, would be unable to satisfy his burden of proof. La. R. S. 9: 2800.6 provides
the burden of proof in claims against merchants. " Merchant" means one whose
business is to sell goods, foods, wares, or merchandise at a fixed place of business.
La. R.S. 9: 2800.6( C)( 2). A merchant owes a duty to persons who use his premises
to exercise reasonable care to keep his aisles, passageways, and floors in a
VA
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. La. R.S. 9: 2800. 6( A).
Louisiana Revised Statutes 9: 2800. 6( B) provides:
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.
Thus, 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
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. Williams v. Liberty Mutual Fire Insurance Company,
2016- 0996 ( La. App. 1 Cir. 3/ 13/ 17); 217 So. 3d 421, 424, writ denied, 2017- 0624
La. 6/ 5/ 17); 219 So. 3d 338.
The burden of proof on the motion for summary judgment rests with DG, the
mover. However, in this matter, DG will not bear the burden of proof at trial; that
burden of proof rests with Campbell. Accordingly, once the motion for summary
judgment has been properly supported, DG need only point out to the trial court the
absence of factual support for one or more elements essential to Campbell' s slip
and fall claim. Thereafter, the burden shifts to Campbell to produce factual
support sufficient to establish the existence of a genuine issue of material fact, or
that DG is not entitled to judgment as a matter of law. See La. Code Civ. P. art.
966( D)( 1). The plaintiffs may not rest on the mere allegations of denials in their
pleadings, but their responses must set forth specific facts showing that there is a
genuine issue for trial. If the plaintiffs do not so respond, summary judgment, if
appropriate, shall be rendered against them. Adams on Behalf ofD.K. v. Wal-Mart
Stores, Inc. Store # 542, 2018- 1706 ( La. App. 1 Cir. 9/ 27/ 19); _ So. 3d , 2019
WL 4727546, at * 1.
A hazardous condition is one that creates an unreasonable risk of harm to
customers under the circumstances. In the context of slip -and -fall cases, a hazard
is shown to exist when the fall results from an unreasonably slippery condition.
Pena v. Delchamps, Inc., 2006- 0364 ( La. App. 1 Cir. 3/ 28/ 07); 960 So.2d 988,
991, writ denied, 2007- 0875 ( La. 6/ 22/ 07); 959 So. 2d 498. Louisiana
jurisprudence does not preclude the granting of a motion for summary judgment in
cases where plaintiffs are unable to produce factual support to bolster their claim
that a complained -of condition is unreasonably dangerous. Willig v. Pinnacle
Entertainment, Inc., 2015- 1998 ( La. App. 1 Cir. 9/ 16/ 16); 202 So. 3d 1169, 1173.
At his deposition, Campbell stated that he entered the restroom of a Dollar
General located on Coursey Boulevard in Baton Rouge, Louisiana. After using the
toilet, Campbell turned around, took a step, and slipped, falling on the outside
perimeter of a drain located near the toilet. He stated that there was "[ n] o telling
what it was[,]" and that he slipped in "[ w] hatever liquid was on the floor." After
falling, Campbell noticed a wet mop bucket, but Campbell stated that he did not
know exactly what liquid he slipped in, nor did he know how the liquid got on the
floor, how long the liquid was on the floor, or who put the liquid on the floor. He
also did not know whether the employees knew about the liquid on the floor.
7
Campbell further stated that he saw " very small" puddles of water spread
throughout the bathroom and that after falling, he had water on the back of his
pants and on the back of his shirt.
Campbell further stated that he left the restroom to find an employee, but
there were none at the register. Campbell then left the store without telling anyone
about the accident and sought medical care in Gonzales, Louisiana. A day or two
later, Campbell called Dollar General to report the accident, at which point Dollar
General asked Campbell to meet with management to give a report. When
Campbell went back to the store a week or two later, he spoke to an employee and
asked to speak to a manager, but was told that the manager was busy. Campbell
waited for approximately 45 minutes, but the manager never showed up. Campbell
left the store without filling out an incident report for Dollar General.
To defeat the motion for summary judgment filed by DG, Campbell must
show that he can prove at trial that there existed a condition that presented an
unreasonable risk of harm which was reasonably foreseeable, that DG had actual or
constructive notice of the condition, and that DG failed to exercise reasonable care.
DG has pointed out the lack of factual support for Campbell' s claims.
Namely, DG showed that Campbell did not know what substance he slipped in and
thus could not prove that there had been an unreasonable risk of harm. Further,
Campbell did not timely submit any evidence in response to DG' s motion for
summary judgment and thus presented no evidence that an employee of DG was
responsible for or aware of the liquid on the floor and no evidence regarding how
long the liquid was on the floor prior to his fall. Because no report of the incident
was ever made, there is no evidence that would allow the trier of fact to find that
DG either created, or had actual or constructive notice of the alleged condition, or
that DG had failed to exercise reasonable care. This lack of evidence is fatal to
Campbell' s cause of action under La. R. S. 9: 2800. 6, and summary judgment in
10
favor of DG was proper. See Cyprian v. State Farm Fire and Casualty Company,
2016- 0717 ( La. App. 1 Cir. 2/ 17/ 17); 2017 WL 658246, at * 6( unpublished
opinion). This assignment of error lacks merit.
Assignment of Error # 3
In his third assignment of error, Campbell argues that the trial court erred in
proffering evidence and not allowing discovery to be introduced in opposition to
the motion for summary judgment. Specifically, Campbell asserts that the trial
court erred in ( 1) finding that no evidence had been produced; ( 2) finding
Campbell did not have a right to depose DG before granting summary judgment;
3) finding that the photographic evidence should be proffered instead of
considered; and ( 4) not drawing inferences from the undisputed facts which are
most favorable to the party opposing the motion.2
Finally, Campbell argues that the trial court erred in not drawing inferences
from the undisputed facts which are most favorable to the party opposing the
motion. Factual inferences reasonably drawn from the evidence must be construed
in favor of the party opposing a motion for summary judgment, and all doubt must
be resolved in the opponent' s favor. Jackson v. City of Zachary, 2017- 1583 ( La.
App. 1 Cir. 8/ 6/ 18); 256 So. 3d 323, 326 ( citing Willis v. Medders, 2000- 2507 ( La.
12/ 8/ 00); 775 So. 2d 1049, 1050). However, Campbell did not properly submit any
supporting evidence to be considered on the motion for summary judgment. The
only evidence before the court is Campbell' s deposition testimony, including
Campbell' s assertions that he did not know exactly what liquid he fell in or how
long the liquid had been on the floor prior to the fall. Further, there is no evidence
regarding DG' s actual or constructive notice of the condition or DG' s failure to
2 We previously addressed whether Campbell had properly introduced any evidence in our discussion of the
admissibility of Campbell' s exhibits. We also discussed Campbell' s argument that the photographs should have
been considered on the motion for summary judgment, finding that the photographs were not properly submitted as
summary judgment evidence pursuant to La. Code Civ. P. art. 966. Additionally, we addressed Campbell' s
argument regarding his right to depose DG in Assignment of Error # 1.
11
exercise reasonable care from which we can draw any inferences. This assignment
of error lacks merit.
DECREE
For the above and foregoing reasons, the Nineteenth Judicial District Court' s
judgment granting DG Louisiana, LLC' s motion for summary judgment is
affirmed. All costs of this appeal are assessed to Appellant, Gregory Allen
Campbell.
AFFIRMED.
12
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0036
GREGORY ALLEN CAMPBELL
VERSUS
DOLGENCORP, LLC
V
3
McDonald, J., concurs and assigns reasons.
The majority suggests that since Campbell did not know what he
slipped in, he didn' t prove there was an unreasonable risk of harm. I believe
if there was a substance on the floor that he slipped in, there was an
unreasonable risk of harm. However, the outcome is the same, as he
presented no evidence to show that DG caused the substance on the floor or
prove that DG had knowledge of it, thus summary judgment in favor of DG
was proper.