SIMMONS v. BENNY CAR WASH ABC (2026)

In this slip and fall case, defendants, Benny's Car Wash, L.L.C. and Old Republic Insurance Company, appeal a judgment granting a motion for partial summary judgment on liability in favor of plaintiff, David Simmons. The trial court ruled that Benny's is 100% liable for Simmons’ slip and fall on its premises and his related injuries.

After de novo review of the summary judgment evidence, we find genuine issues of material fact remain, and Simmons failed to carry his summary judgment burden of proof. We reverse the January 15, 2026 amended judgment and remand this matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Simmons filed suit against Benny's and Old Republic seeking damages for injuries allegedly sustained in a slip and fall incident that occurred on Benny's premises on June 26, 2021.² Specifically, Simmons alleges that he slipped in water on the floor of the men's restroom at a Benny's convenience store, known as “B-Quick.”

In January 2025, Simmons filed a motion for partial summary judgment on liability, urging the trial court to render judgment finding Benny's 100% liable for his slip and fall and resulting damages. Through numerous depositions, Simmons sought to establish that water was present on the floor in the men's restroom due to an ongoing plumbing issue with the urinal. These depositions established the following:

On June 18, 2021, B-Quick employee Lindsly Winters submitted a maintenance ticket, which states, “Urinal seems to be clogged/draining improperly causing occasional overflow onto the ground.”³ Robert Serda, one of Benny's maintenance technicians at the time, went to the store on June 19, 2021 in response to the maintenance ticket. During her deposition, Winters recalled “something about coffee grinds being inside the urinal. And then [Serda] got it to flush.” The ticket was closed on June 19, 2021, with the comment “[u]rinal is draining[.]”

Simmons’ incident occurred one week later. During his deposition, Simmons testified that he took approximately two or three steps into the restroom, then he was “in the air.” He confirmed he did not reach the urinal or the toilet before he fell. Simmons testified that he first noticed water on the floor after he fell and that it covered a majority of the floor. According to Simmons, “water was everywhere.” He does not know how long the water was on the floor before he fell, and he did not look around to see where the water was coming from after he fell. Instead, Simmons immediately got up, walked out of the restroom, and reported the incident to Trinity Bellizeare, Benny's employee.

Simmons testified that Bellizeare told him, “we already know it has an issue there[,]” and that they tried calling someone but got no response. According to the incident form completed by Bellizeare, she advised Simmons they were “informed that something was leaking” and kept a wet floor sign to let people know.⁴ Bellizeare also noted on the incident form that Simmons advised that “water was gushing out on the floor in the bathroom,” but she observed that Simmons’ pants “didn't have one spot of water on it.”⁵ Contrary to this statement, Simmons testified that he did not tell Bellizeare water was “gushing.”

Shortly after speaking to Simmons, Bellizeare reported the incident to the team leader on duty, Danyell Wilson. Both employees then went into the men's restroom. Wilson saw “a little” water around the back of the toilet and water or urine near the urinal. Bellizeare documented that “the floor didn't have water gushing out” as Simmons stated. Instead, she noted “a little water under the sink[.]” Wilson instructed Bellizeare to mop the area. During her deposition, Wilson confirmed there was no way to know how long the substance was on the floor before Simmons fell. She testified that her responsibilities included inspecting the men's restroom for spillages when her shift began at 6:00 a.m. By procedure, she would have inspected the restroom prior to Simmons’ fall, and she and/or Bellizeare would have been responsible for cleaning, if needed.⁶

Travis Roddy, Benny's maintenance director, reopened the urinal maintenance ticket on June 28, 2021, and commented the urinal was “absolutely not draining.” During his deposition, Roddy testified that he likely went to the restroom and saw the urinal was clogged. He explained that he reopened the ticket that was closed on June 19, 2021, “because it is much easier to reopen a ticket than to type one up on the move.” However, he testified the ticket entries could have been related to two separate problems with separate causes. Roddy confirmed he had no reason to believe the problem with the urinal was not resolved by Serda on June 19, 2021. Wilson similarly testified that the June 18th and June 28th maintenance ticket entries could have been related to different problems with the urinal involving two different obstructions. Wilson confirmed it is possible that Serda fixed the issue with the urinal in response to the first ticket entry, and that the second ticket entry was prompted by a new problem.

Dustin Kimble, another Benny's maintenance technician, was immediately assigned to resolve the reopened maintenance ticket.⁷ On June 28th, Kimble and Roddy removed the urinal from the wall and found what appeared to be the top of a soap dispenser inside the urinal. The object was removed from the urinal, the issue was resolved, and the ticket was closed. Like Roddy, Kimble testified the problem with the urinal observed on June 28, 2021 could mean it was not fixed by Serda on June 19th or “it could be a whole separate incident causing it to clog again” on June 28th. Kimble testified that customers have flushed objects like soda cans, clothing, and drug supplies down the urinal, which may cause it to overflow.

Benny's opposed the motion for partial summary judgment, asserting the testimony offered by Simmons shows the existence of disputed material facts on issues necessary to prove liability pursuant to the Merchant Liability Statute, La. R.S. 9:2800.6.

The trial court orally granted Simmons’ motion in April 2025 at the conclusion of a contradictory hearing. The trial court noted there were reports of plumbing issues prior to Simmons’ fall and subsequent remedial measures taken after the fall. The court found no issue of fact that Benny's had actual knowledge of a defect that “may have caused -- or caused water to get on the floor.” A judgment was signed on May 23, 2025, granting Simmons’ motion for partial summary judgment on liability. The judgment also contained a certification pursuant to La. C.C.P. art. 1915(B), stating the judgment is final and appealable “as there is no just reason for delay.” Benny's timely filed this appeal.

JURISDICTION

Appellate courts have a duty to examine subject matter jurisdiction, which extends only to final judgments, even if the parties do not raise the issue. Cope v. Board of Supervisors of Louisiana State University and A&M College, 2025-0036 (La. App. 1 Cir. 7/31/25), 418 So.3d 994, 1000. See La. C.C.P. arts. 1841 and 2083. Pursuant to the version of La. C.C.P. art. 1915(B)(1) applicable to this appeal, a partial summary judgment rendered under La. C.C.P. art. 966(E) could be immediately appealed during ongoing litigation if the trial court properly designated the judgment as final.⁸

Here, the original and amended judgments are certified as final pursuant to La. C.C.P. art. 1915(B). This court is not bound by the trial court's Article 1915(B) certification; however, after de novo review and consideration of the factors set forth in R.J Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, 1122, we likewise find no just reason for delay and find this court has jurisdiction to consider this appeal.

DISCUSSION

In a single assignment of error, Benny's asserts the trial court erred in finding the absence of material issues of fact in granting the motion for partial summary judgment in Simmons’ favor.

Summary Judgment

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 of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). In ruling on a motion for summary judgment, it is not the function of the trial court to determine, or even inquire into, the merits of issues raised or to weigh conflicting evidence of material fact. Mitchell v. Chambers, 2024-01526 (La. 2/25/25), 401 So.3d 651 (per curiam). The court's role is not to make a credibility determination. Cope v. Board of Supervisors of Louisiana State University and A&M College, 2025-0035 (La. App. 1 Cir. 7/3/25), 417 So.3d 1048, 1055. Rather, the court must view the record and all reasonable inferences to be drawn from it in the light most favorable to the nonmoving party. Mitchell, 401 So.3d 651. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Mitchell, 401 So.3d 651. Using this criteria, appellate courts review the granting of a summary judgment de novo. Cope, 417 So.3d at 1055.

A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, summary judgment is appropriate. Cope, 340 So.3d at 1055. A fact is considered material if its existence or nonexistence may be essential to a plaintiffs cause of action under the applicable theory of recovery. The applicable substantive law determines materiality; thus, whether a particular fact in dispute is material for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Campbell v. Orient-Express Hotels Louisiana, Inc., 2024-00840 (La. 3/21/25), 403 So.3d 573, 579.

The initial burden of proof is on the mover. La. C.C.P. art. 966(D)(1). When, as here, the mover will bear the burden of proof at trial, the mover has the burden of making a prima facie showing that no genuine issue of material fact remains. Only when the mover makes this showing does the burden shift to the opposing party to present evidence demonstrating a material factual issue remains. Robinson v. Williams, 2024-0201 (La. App. 1 Cir. 12/11/24), 404 So.3d 821, 827. Therefore, in deciding a motion for summary judgment, it must first be determined whether the supporting documents presented by the mover are sufficient to resolve all material factual issues. Robinson, 404 So.3d at 827.

Applicable Law

Simmons’ cause of action and burden of proof are governed by Louisiana's Merchant Liability Statute, La. R.S. 9:2800.6. Pursuant to La. R.S. 9:2800.6, a merchant like Benny's owes a duty to persons who use its premises to exercise reasonable care to keep the floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions that reasonably might give rise to damage. La. R.S. 9:2800.6(A); Adams on Behalf of D.K. v. Wal-Mart Stores, Inc. Store #542, 2018-1706 (La. App. 1 Cir. 9/27/19), 286 So.3d 452, 454.

In a negligence claim against a merchant for damages because of a fall due to a condition existing on the merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, that: (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 that caused the damage, prior to the occurrence; and (3) the merchant failed to exercise reasonable care. La. R.S. 9:2800.6(B). Under this heavy burden of proof, if any one of these elements cannot be established, the claimant's entire action will fail. Adams on Behalf of D.K., 286 So.3d at 454.

Constructive notice means the claimant has proven 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); Adams on Behalf of D.K., 286 So.3d at 454. To carry his burden of proving the temporal element of La. R.S. 9:2800.6(B)(2), Simmons must make a positive showing of the existence of the condition prior to the fall. See Adams on Behalf of D.K., 286 So.3d at 454-55.

Analysis

After reviewing the summary judgment evidence, we find the trial court erred by granting summary judgment in Simmons’ favor. First, a genuine issue of material fact exists regarding whether there was water in the area where Simmons testified that he fell. Immediately after Simmons reported his fall, Wilson and Bellizeare, Benny's employees, observed “a little” water behind the toilet and under the sink and water or urine near the urinal.⁹ Wilson testified that she did not see any water where Simmons could have slipped and concluded that he could not have fallen. The location of the sink was not established, but Simmons testified that he did not reach the toilet or the urinal. Instead, Simmons fell two or three steps into the restroom. Wilson's testimony and Bellizeare's incident form also conflict with Simmons’ assertion that water was covering the floor.

Next, genuine issues of material fact exist concerning whether the water on the floor in the area where Simmons fell was related to or caused by the urinal.¹⁰ No testimony or evidence established the source of any water on the floor near the restroom entrance. Although Bellizeare's incident form suggests that Benny's was aware that something was leaking on the day Simmons fell, a reasonable inference is drawn from the evidence that Serda resolved the plumbing issue on June 19, 2021. Bellizeare may have been referring to a new or different issue with the urinal, which may or may not have been the source of the water that allegedly caused Simmons to fall.

Benny's employees consistently testified that it is not uncommon for customers to flush foreign objects down the urinal. Wilson testified that customers “mess with the urinals in any location quite often” and try to flush stolen items down the urinal so they do not get caught. She explained that employees cannot stop what a customer does in the restroom, so they check as often as they can for spillages. Kimble also explained that some clogs work themselves out and do not require maintenance intervention. Wilson confirmed there was no way to know if the water on the floor was from an overflow or something a customer did seconds before Simmons fell.

Finally, a genuine issue of material fact exists concerning whether Benny's had constructive knowledge of the presence of water on the floor prior to Simmons’ fall. All testifying witnesses denied having any knowledge of the presence of water on the floor before Simmons reported his fall. Bellizeare likewise did not state that she knew there was water on the floor prior to Simmons’ fall, and all reasonable inferences must be drawn in favor of Benny's, such as the possibility that a customer caused water to be on the floor near the restroom entrance shortly before Simmons walked in. See Mitchell, 401 So.3d 651. Thus, the temporal element of Simmons’ burden of proof is not satisfied. See La. R.S. 9:2800.6(C)(l); Adams on Behalf of D.K., 286 So.3d at 454.

After a de novo review of the record, we find that Simmons failed to carry his burden of proof as mover on the motion for partial summary judgment. Therefore, the burden did not shift to Benny's to present evidence demonstrating a material factual issue remains.

CONCLUSION

For the foregoing reasons, we reverse the trial court's January 15, 2026 amended judgment. The matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed against plaintiff/appellant, David Simmons.

JUDGMENT REVERSED.

FOOTNOTES

2.   Simmons named a fictitious entity (“ABC Insurance Company”) as Benny's insurer in his original petition, filed on June 23, 2022. The petition was amended on December 18, 2024 to name Old Republic as a defendant.

3.   The maintenance ticket was filed in support of the motion for partial summary judgment as “Exhibit N,” and was not attached to an affidavit. See La. C.C.P. art. 966(A)(4)(a); Alden v. Rice, 2024-0721 (La. App. 1 Cir. 5/28/25), 2025 WL 1513144, *4 (unpublished), writ denied, 2025-00821 (La. 10/1/25), 417 So.3d 576. However, it is apparent this is the same document attached as “Exhibit 5” to Winters’ deposition and discussed therein. Therefore, this document is proper summary judgment evidence pursuant to La. C.C.P. art. 966(A)(4)(a). See Loupe v. Roman Catholic Church of Diocese of Baton Rouge, 2022-1153 (La. App. 1 Cir. 4/14/23), 365 So.3d 844, 849, writ denied, 2023-00758 (La. 10/10/23), 371 So.3d 458.

4.   The parties noticed Bellizeare's deposition; however, she did not appear. Bellizeare's incident form was read into the record during Danyell Wilson's deposition as she answered questions about the form, and it was attached to her deposition. Therefore, we consider the contents of the form. See La. C.C.P. art. 966(A)(4)(a); Loupe, 365 So.3d at 849.

5.   Lindsly Winters testified that she reviewed store surveillance video after the incident and did not “see any wetness” on Simmons’ body.

6.   Simmons could not recall what time he fell but knew it occurred “during the day.” Wilson's incident form states that she received the report from Bellizeare around 12:30 p.m.

7.   The maintenance ticket was also authenticated by Roddy and Kimble and attached to their depositions.

8.   Louisiana Code of Civil Procedure article 1915 was amended by La. Acts. 2025, No. 250 § 3, effective August 1, 2025. The 2025 amendment to La. C.C.P. art. 1915(B) “shall have prospective application only and shall not apply to appeals and supervisory writs filed prior to the effective date of this Act.” See Editor's Notes, Acts 2025 No. 250. Benny's moved for and was granted an appeal prior to the amendment's effective date; thus, the amendment to Article 1915(B) does not apply to this appeal.

9.   Simmons filed Benny's responses to requests for production in support of his motion, along with photographs identified as “Exhibit M” (in globo), purportedly produced in discovery. However, responses to requests for production and photographs not sworn to in any way are not proper summary judgment evidence. See La. C.C.P. art. 966(A)(4)(a); Campbell v. Hospital Service District No. 3 for Parish of Lafourche, 2022-1118 (La. App. 1 Cir. 8/1/23), 371 So.3d 543, 549 n.2. Although some witnesses discussed photographs during their depositions, the photographs are not attached to the depositions in the summary judgment record. Furthermore, the photographs are of such poor quality that it is impossible for this court to determine whether the photographs identified as “Exhibit M” are the same photographs authenticated by the deponents. See Alden, 2025 WL 1513144 at*4. Even if the photographs in the record could be considered as proper summary judgment evidence, they are of such poor quality that they are of little value.

10.   In support of the motion, Simmons also offered the affidavit and expert report of Jason Legg, a registered architect. Legg opined that Benny's failed to maintain the tile floor in the restroom in a safe condition and “failed to warn of the wet conditions that resulted from a known and reoccurring plumbing leak in the [m]en's restroom.” However, it is apparent that Legg accepted Simmons’ explanation for why water was present on the floor. We find a genuine issue of material fact exists in this regard.

HAGGERTY, J.