OTERO v. WINN DIXIE STORES INC LLC (2025)

Plaintiff-appellant, Marlene Otero (“Ms. Otero”), appeals the judgment of the 24th Judicial District Court, entered on August 19, 2024, granting the Motion for Summary Judgment filed by defendants-appellees, Winn-Dixie Stores, Inc., Winn-Dixie Stores Montgomery, LLC, and Southeastern Grocers, Inc. (“Winn-Dixie”). The judgment dismissed Ms. Otero's petition with prejudice. We affirm the district court's judgment for the reasons stated below.

FACTS AND PROCEDURAL POSTURE

Ms. Otero claims that, on May 30, 2022, she was shopping at the Winn-Dixie store in Kenner, Louisiana, when she slipped in laundry detergent that was on the floor of the laundry detergent aisle, causing her to fall and sustain injuries. Ms. Otero filed a Petition for Damages (the “Petition”) against Winn-Dixie on May 28, 2023. In the Petition, Ms. Otero alleged that the presence of the laundry detergent on the floor created an unreasonably hazardous condition. She further averred that Winn-Dixie knew or should have known of the unreasonably hazardous condition, but failed to take reasonable steps to remediate the hazard or to warn of its existence. Winn-Dixie answered and asserted affirmative defenses.¹

Winn-Dixie deposed Ms. Otero on March 7, 2024. Thereafter, Winn-Dixie filed its Motion for Summary Judgment (the “Summary Judgment Motion”). In the Summary Judgment Motion, Winn-Dixie asserted, based on Ms. Otero's deposition testimony, that she would be unable to satisfy one or more of the elements of her claim at trial. Specifically, Winn-Dixie maintained that Ms. Otero could not show that Winn-Dixie created the unreasonably dangerous condition, that it knew or should have known of the detergent on the floor, or that it failed to exercise reasonable care.

Ms. Otero opposed the Summary Judgment Motion, contending that her deposition testimony placed genuine issues of material fact at issue regarding Winn-Dixie's knowledge of the hazardous condition in contest because she had testified that two Winn-Dixie employees were allegedly in the laundry detergent aisle at the time she fell. She alleged that these two employees should have discovered the laundry detergent on the floor and should have either warned of it or cleaned it up. In support of her opposition, Ms. Otero attached an excerpt of her deposition, Winn-Dixie's responses to her interrogatories, and her medical records.

The district court conducted a hearing on the Summary Judgment Motion on August 12, 2024. After hearing the arguments of counsel, the district court granted the Summary Judgment Motion and dismissed Ms. Otero's Petition, with prejudice. A written Judgment granting the Summary Judgment Motion was entered on August 19, 2024. Contrary to La. C.C.P. art. 966(C)(4), the district court failed to “state on the record or in writing the reasons for granting or denying the motion.”²

On September 4, 2024, Ms. Otero filed a Motion for New Trial on the basis of allegedly newly discovered evidence and that the district court's August 19, 2024 judgment was contrary to the law and the evidence. The new evidence attached to her Motion for New Trial was a photograph of a “spill cart” that was produced by Winn-Dixie, six days prior to the hearing on the Summary Judgment Motion, in response to Ms. Otero's requests for production of documents. Ms. Otero attached an affidavit to her Motion for New Trial in which she attested that the “spill cart” depicted in the photograph was the same cart that she had seen in the aisle immediately after her fall. She claimed that this photograph corroborated her deposition testimony, in which she stated that she observed a Winn-Dixie employee with a cleaning cart in the laundry detergent aisle when she fell.

Winn-Dixie opposed the Motion for New Trial, contending that the photograph was not newly discovered evidence warranting a new trial on its Summary Judgment Motion. Winn-Dixie argued that Ms. Otero had described the cleaning cart in her deposition and that the issue was fully discussed and considered by the district court at the hearing on the Summary Judgment Motion. Additionally, Winn-Dixie argued that the photograph had been designated “CONFIDENTIAL” pursuant to a protective order that was in place and was submitted by Ms. Otero in violation of the protective order. Winn-Dixie also contended that Ms. Otero's affidavit offered in support of her Motion for New Trial was an untimely attempt to create new evidence, in that Ms. Otero stated in for the first time in her affidavit that the cart was sitting within three feet of where she fell at the time of her fall. Included in Winn-Dixie's opposition to Ms. Otero's Motion for New Trial was a Motion to Strike Ms. Otero's affidavit and exhibit.

The district court conducted a hearing on the Motion for New Trial on December 12, 2024. Ms. Otero did not offer, file, or introduce her affidavit and the attached photograph as evidence at the hearing. Following arguments of counsel, the district court denied the Motion for New Trial, finding no reason to change its original judgment. The district court also granted Winn-Dixie's Motion to Strike, but permitted Ms. Otero to proffer it for purposes of appeal. A written judgment was entered on December 13, 2024.

Ms. Otero filed a Motion for Appeal from the district court's August 19 and December 13, 2024 judgments on February 11, 2025. On February 20, 2025, the district court granted Ms. Otero a devolutive appeal.³ This timely appeal followed.

ASSIGNMENT OF ERROR

In her appeal brief, Ms. Otero raises a single assignment of error. She claims that the district court erred in granting Winn-Dixie's Summary Judgment Motion. She assigned no errors with regard to the district court's December 13, 2024 judgment denying her Motion for New Trial and granting Winn-Dixie's Motion to Strike.

SUMMARY JUDGMENTS AND STANDARD OF REVIEW

Appellate courts review summary judgments de novo, under the same criteria as the district courts to determine whether summary judgment is appropriate. Neville v. Redmann, 22-175 (La. App. 5 Cir. 12/31/22), 356 So.3d 568, 575, writ denied, 23-126 (La. 4/4/23), 558 So.3d 861, citing, Lapuyade v. Rawbar, Inc., 18-474 (La. App. 5 Cir. 12/27/18), 263 So.3d 508, 511-12, writ denied, 19-315 (La. 4/15/18), 267 So.3d 1126. Under La. C.C.P. art. 966(A)(3), 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.” The burden of proof rests with the mover, unless the mover will not bear the burden of proof at trial on the issue before the court on summary judgment. La. C.C.P. art. 966(D)(1). In that instance, the mover need only show the court the absence of factual support for one or more essential elements of the adverse party's claim. Id. The burden then shifts to the adverse party to establish factual support sufficient to demonstrate 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 court's determination of whether a genuine issue of material fact exists requires reference to the applicable substantive law. Hacienda Holding Co., L.L.C. v. Home Bank, 20-189 (La. App. 5 Cir. 12/30/20), 309 So.3d 435, 445 (citing Stephens v. Southern Sweeping Servs., 03-826 (La. App. 5 Cir. 11/25/03), 862 So.2d 197, 199).

DISCUSSION

A. Governing Law

La. R.S. 9:2800.6 governs negligence claims brought against a merchant for damages resulting from injuries arising out of a fall due to a condition existing in or on the merchant's premises. “Merchant” is defined in La. R.S. 9:2800.6(C)(2) as one whose business is “to sell goods, foods, wares, or merchandise at a fixed place of business.” The statute establishes that a merchant has a duty to persons who use his premises “to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition [including making] a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damages.” La. R.S. 9:2800.6(B) establishes the burden of proof in slip and fall cases as follows:

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.

To prove that the merchant had constructive notice, 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). Further, “[t]he presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew or in the exercise of reasonable care should have known, of the condition.” Id. A claimant's failure to prove any of elements required under La. R.S. 9:2800.6 will prove fatal to a plaintiff's claim. White v. Wal–Mart Stores, Inc., 97–0393 (La. 9/9/97), 699 So.2d 1081, 1085; Evans v. Winn-Dixie Montgomery, LLC, 15-191 (La. App. 5 Cir. 10/28/15), 177 So. 3d 386, 391-92, reh'g denied (La. App. 5 Cir. 11/19/15).

The constructive notice element requires that the claimant make a positive showing of the existence of the condition prior to the fall. White, 699 So.2d at 1086. Whether a period of time is sufficiently lengthy that a merchant should have discovered the condition is a question of fact; nevertheless, the claimant must initially produce positive evidence that the condition existed for some time period prior to the fall in order to meet her burden of proof. Id. at 1085; Swatt v. Wal-Mart Stores, Inc., 21-66 (La. App. 5 Cir. 12/29/21), 334 So.3d 1054, 1059, writ denied, 22-205 (La. 4/5/22), 335 So. 3d 833; Evans, 177 So.3d at 392; 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 her burden of proving constructive notice as mandated by the statute. White, 699 So.2d at 1086; Evans, 177 So.3d at 392. “[M]ere speculation or suggestion is not enough to meet the stringent burden imposed upon a plaintiff by La. R.S. 9:2800.6.” Evans, 177 So.3d at 392 (quoting Frank v. Boomtown L.L.C., 106 So.3d 227 (La. App. 5 Cir. 12/11/12), writ denied, 13-564 (La. 4/19/13), 112 So.3d 224, quoting Allen v. Wal–Mart, 37,352 (La. App. 2 Cir. 6/25/03), 850 So.2d 895, 898).

In addition, a merchant is not the insurer of the safety of his patrons. Swatt, 334 So.3d at 1059. A store owner is not liable every time an accident happens. The merchant's duty of care requires that reasonable protective measures, including periodic inspections, are undertaken to ensure that the premises are kept free from substances that might cause a customer to fall. Stevens v. Winn–Dixie of Louisiana, 95–435 (La. App. 1st Cir.11/9/95), 664 So.2d 1207, 1211. Whether measures taken are reasonable must be determined in light of the circumstances of each case. As discussed by the court in Stockwell v. Great Atlantic & Pacific Tea Co., 583 So.2d 1186, 1189 (La. App. 1st Cir. 1991), the degree of vigilance must be commensurate with the risk involved, as determined by the overall volume of business, the time of day, the section of the store, and other relevant considerations.

B. De Novo Review of Grant of Summary Judgment

In the excerpt of Ms. Otero's deposition submitted by Winn-Dixie in support of its Summary Judgment Motion, Ms. Otero testified that when she entered the laundry detergent aisle at the Winn-Dixie, she saw two customers in the aisle. One was a short, chubby elderly woman and the other was a tall, bald man. She did not see anyone else in the aisle at that time.

She then slipped on some transparent liquid that was on the floor – but not a “puddle” of liquid – and fell. From the smell, she recognized the substance as laundry detergent. When she fell, she cried out for help. The two customers who were in the aisle saw her fall, but did not come to her aid; instead, they left the aisle. She said that there were people in other parts of the store, but she did not see them.

Ms. Otero did not know how long the substance had been on the floor. She attributed the presence of the substance on the floor to worker neglect, but testified that she did not know how the substance came to be on the floor. When she got up after her fall, the only footprint that was in the transparent liquid was hers. She stated that she spoke to the store manager after she fell. The manager told her that he did not know how the substance came to be on the floor.

In the excerpt of her deposition attached to her opposition to Winn-Dixie's Summary Judgment Motion, Ms. Otero testified that, after she fell, she saw a worker and the Manager of the Winn-Dixie in a corner of the laundry detergent aisle. The manager had his back turned towards her and the worker was facing the manager. The worker had a cleaning cart with supplies and some towels for cleaning and a “basket or something like that.” She did not know whether the worker had a mop or any other cleaning utensils or supplies. She then said that the worker had bottles that he was organizing or carrying. She did not see any warning signs in the aisle.

As stated above, Ms. Otero also attached medical records and Winn-Dixie's responses to her interrogatories to her opposition to the Summary Judgment Motion. The only relevant information contained in Winn-Dixie's responses to interrogatories was that: the store's video surveillance tape for the day of the alleged incident (May 30, 2022) had been automatically taped over before Winn-Dixie became aware of Ms. Otero's claim; Winn-Dixie's policy was that employees were to keep an eye out for potential hazardous conditions and to correct them as discovered or when put on notice of them; and there had been no slip and fall accidents in the detergent aisle of the store within the five years prior to Ms. Otero's alleged accident.

Based on the foregoing evidence, we find that Ms. Otero failed to carry her burden of proof under La. R.S. 9:2800.6(B). She did not introduce any evidence demonstrating that Winn-Dixie created the allegedly hazardous condition. She did not introduce any evidence showing how long the transparent substance had been on the floor or how it came to be there. She did not introduce any evidence demonstrating that Winn-Dixie knew or should have known of the existence of the transparent substance on the floor prior to her fall. Nor did she introduce any evidence showing that Winn-Dixie failed to exercise reasonable care.

Her testimony did not establish that any Winn-Dixie employees were in the laundry detergent aisle prior to or at the time of her fall. She was clear that the only people she saw prior to her fall were the two customers who were in the laundry detergent aisle. She was equally clear that she did not see the Winn-Dixie employees in the aisle until after she fell.

Even if she had shown that an employee and/or the store manager were present in the aisle at the time of her fall, without evidence of how long they had been in the aisle before Ms. Otero fell, this fact alone would not be sufficient to demonstrate that Winn-Dixie knew or should have known of the presence of transparent liquid on the floor or that it failed to exercise reasonable care. La. R.S. 9:2800.6(C)(1). (See White, 699 So.2d at 1086: “Without additional supporting evidence, a determination that an employee fifteen feet away ‘could have noticed the spill’ of a clear liquid that plaintiff and those accompanying her did not notice after having traversed the area twice, is an unsupported assumption.”). Ms. Otero's speculation that the employee and/or the manager had actual knowledge of the presence of the transparent liquid on the floor of the laundry detergent aisle was just that – speculation.

Ms. Otero has failed to come forward with factual support sufficient to demonstrate the existence of a genuine issue of material fact as to Winn-Dixie's negligence or to demonstrate that Winn-Dixie is not entitled to judgment as a matter of law.

DECREE

For the reasons stated herein, the district court's judgment granting Winn-Dixie's Motion for Summary Judgment and dismissing her Petition, with prejudice, is affirmed.

AFFIRMED

FOOTNOTES

1.   In its answer, Winn-Dixie asserted that Winn-Dixie Stores, Inc. and Southeastern Grocers, Inc. were not proper parties defendant, as neither conducts any business activities in Louisiana.

2.   Article 966 does not provide a remedy for the district court's failure to give reasons for its judgment. However, our review is de novo, as discussed below, and the failure of the district court to provide its reasons for judgment does not prevent us from reviewing its judgment granting the motion for summary judgment.

3.   On March 20, 2025, Winn-Dixie filed a Motion to Dismiss the appeal due to Ms. Otero's failure to pay costs. Ms. Otero opposed the Motion to Dismiss the appeal. There is no indication in the record that this motion was heard or decided, but the appeal has gone forward, rendering the Motion to Dismiss the appeal moot.

WICKER, J.