DIANNA WILLIAMS v. NAUTILUS INSURANCE COMPANY AND AMEN PLUS INC TUNNEL EXPRESS (2026)

In this trip-and-fall case, the plaintiffs ² appeal from a May 12, 2025 trial court judgment granting a motion for summary judgment filed by the defendants, Nautilus Insurance Company (“Nautilus”) and Amen Plus, Inc. d/b/a Tunnel Express (“Tunnel Express”). For the reasons set forth herein, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On December 13, 2023, Dianna Williams filed a petition for damages, alleging that she was injured when she fell inside the Tunnel Express convenience store in Houma, Louisiana. Specifically, Williams alleged that while visiting the store as a customer on January 15, 2023, she tripped over a case of water or some other object that was on the floor in front of a cash register, causing her to fall. Williams named Tunnel Express and its insurer, Nautilus, as defendants (collectively, “the defendants”), and alleged that Tunnel Express was negligent in placing the case of water in a walkway, or failing to remove the case of water if a non-employee placed the case there, and failing to provide any warnings to customers to look out for the case of water. Williams sought damages for bodily injuries, pain and suffering, mental anguish, loss of enjoyment of life, medical expenses, lost wages, and a loss of earning capacity.

The defendants answered Williams's petition on February 16, 2024. On October 23, 2024, the defendants filed a motion for summary judgment, averring that the case of water at the front of the store did not present an unreasonably dangerous condition. The defendants filed the following evidence in support of their motion for summary judgment: (1) Williams's petition for damages; (2) a surveillance video of Williams's fall; and (3) the affidavit of Mothana Qaraa, an employee of Tunnel Express who was working on the date of Williams's fall.

The surveillance video filed in support of the defendants’ motion shows the checkout counter at Tunnel Express, as well as the walkway in front of the counter where Williams fell. The checkout counter consisted of a long counter with a checkout station at each end, separated by a countertop display case of what appears to be lottery tickets and a floor display of stacked cases of Coca-Cola products in front of the checkout counter. At the time of the accident, the floor display consisted of a total of three cases of Dasani bottled water and approximately twelve cases of canned Coca-Cola, arranged in the following fashion: on the side of the floor display closest to the first checkout station, one stack of two cases of bottled water was positioned with the long sides of the cases flush against the checkout counter; also on the side of the floor display closest to the first checkout station, a single case of bottled water was oriented in the same direction as, and positioned in front of, the taller stack of bottled water; and on the side of the floor display closest to the second checkout station, three stacks of four cases of soft drinks each were positioned alongside the cases of bottled water with the short sides flush against the checkout counter. In this arrangement, due to the differences in the size and shape of the cases, the single case of bottled water protruded several inches farther into the walkway than the much-taller stacks of soft drinks next to it. In addition, the single case of bottled water was slightly askew, resulting in the outside corner protruding even farther into the walkway. The cases of Dasani bottled water were similar in color to the blue checkered tile floor, making them less visible than the bright red cases of Coca-Cola stacked alongside them.

The surveillance video shows Williams approach the checkout counter and stand in line behind a customer who was already checking out. While the customer ahead of Williams was still checking out at the first checkout station, Williams got out of line and walked past the floor display of drinks toward the second checkout station, where she appeared to speak to the employee behind the counter. The employee then walked toward the first checkout station, and Williams followed, waiting in front of the floor display of drinks between the two checkout stations while the customer ahead of her finished his transaction. Once the customer left, Williams approached the first checkout station, but when she reached the counter, the employee returned to the second checkout station and reached across the counter to hand Williams a piece of paper. Williams began to walk back toward the second checkout station, stepping sideways while looking at the employee behind the counter and reaching for the paper. As she did so, her foot caught the protruding outside edge of the case of bottled water, and she fell, landing on her back. The employee came out from behind the counter to check on Williams and, after doing so, straightened and pushed the single case of bottled water back into place in the floor display.

Qaraa's affidavit states that he has been employed at Tunnel Express for over ten years and was present at the time of Williams's fall. Qaraa attested that Tunnel Express has maintained a drink display in front of the checkout counter for the past eight years, and, to his knowledge, there has never been a claim made for a slip-and-fall or trip-and-fall at the store, nor has there ever been any issue with the cases of water and sodas stacked in front of the checkout counter.

The plaintiffs opposed the motion for summary judgment, arguing that the placement of the case of water on the ground in front of the checkout counter was unreasonably dangerous. The plaintiffs filed the following evidence in support of their opposition: (1) the deposition of Majdi Obadi, the owner of Tunnel Express, and (2) an expert report prepared by Mark T. Sullivan, a registered architect in the State of Louisiana, along with an affidavit executed by Sullivan, his curriculum vitae, and other related documents.

Obadi testified at his deposition that he has owned the Tunnel Express convenience store for approximately twenty years, and in that time, he has always maintained a floor display of stacked cases of bottled water and soft drinks at the checkout counter. Obadi explained that the floor display is positioned in front of the checkout counter because it is convenient for the customers to see and grab a case if they want to buy one, rather than having to carry a case from the back of the store to the register. According to Obadi, there are generally four to six cases of water in the floor display at the beginning of each day, which will all be sold by the end of the day, at which point the display is restocked from the stockroom in the back of the store. Although he testified that there is a store policy that prohibits displays of merchandise that are more than four feet high, Obadi was not aware of a policy specifying a minimum height for displays. When asked whether he believed it was unsafe to have the cases of drinks displayed in such a manner near the checkout stations, Obadi testified:

It's not unsafe because I've been having those displays for almost the – the whole years that I've been in business. I never have any incidents with them, never have any problem. But, you know, some customers, you know, they probably, you know, under medication or under some, you know, they – they come, and they don't see it. And that is their problem, not mine. Because this is – you can see it as soon as you walk in, you can see it as soon as you walk out. And it's – it's almost half of the product underneath that counter.

Sullivan, the plaintiffs’ expert witness, is a registered architect in the State of Louisiana with education, training, and experience in the design and planning of commercial and retail buildings, including those with merchandise displays. Sullivan is employed as a forensic architect, providing technical investigations, analysis, reports, and testimony toward the resolution of litigation involving slip, trip, and fall incidents and other architectural issues. In this capacity, he is often called upon to analyze, interpret, and apply various relevant industry standards for customer aisles in retail properties. In the instant matter, Sullivan was retained to determine whether the shopped-down merchandise display in Tunnel Express was dangerous in a manner that caused Williams to fall and be injured. In preparing his expert report, Sullivan reviewed Williams's petition, the motion for summary judgment, the surveillance video of Williams's fall, and four photographs of Tunnel Express taken on December 2, 2024. In his expert report, Sullivan explained the applicable standard of care for a retail store such as Tunnel Express:

The standard of care for a commercial property owner of a retail store includes maintaining walkways free of hazards likely to cause harm to customers. This includes requiring floor displays to be reasonably conspicuous and maintained in a manner to prevent customers from exposure to low tripping hazards in customer aisles.

The [National Safety Council's] Accident Prevention Manual provides standards and guidelines for preventing retail store injuries and directs:

Display platforms should be of color(s) or lighting that contrast with the floor or carpet and should not obstruct aisles.

And:

Floor displays should be at least 3 ft (0.9 m) high to be seen and not become a tripping hazard. They should not be at the ends of aisles where shopping carts can dislodge them.

In his 2001 Occupational Health and Safety magazine article on customer falls in retail stores, Bob Garrone warns:

Display pedestals that are not high enough, do not contrast well with the floor surface, or protrude into the walkway can be significant hazards.

Tunnel Express unreasonably allowed the height of the retail display in front of the check-out counter to become shopped down low enough to cause Williams to trip. [National Safety Council's] Falls on Floors warns:

A large percentage of falls stem from unsafe practices that are separate from human factors․ It thus becomes important to focus on areas that can be controlled, such as eliminating unsafe conditions and unsafe employee practices that might contribute to falls.

And:

Small sale items should not be displayed on the floor, except in racks or large groups accompanied by signs.

Tunnel Express failed to adequately stock and maintain the floor mounted retail display at a level that complied with reasonable industry standards. Tunnel [E]xpress failed to ensure that the display contrasted with the surrounding floor surface. The incident retail display was less than three feet high and was a widely known pedestrian tripping hazard. (Internal citations omitted)

In Sullivan's opinion, the shopped-down and protruding corner of the cased-water display in a customer aisle was dangerous because it posed a tripping hazard in a foreseeable pedestrian path that violated nationally recognized standards for safe walkways in a retail facility. Sullivan further opined that it was foreseeable to Tunnel Express that reasonably attentive customers would follow Williams's path of travel between check-out transaction areas and not notice the hazardous floor display at their feet and that Tunnel Express should have known that reasonably attentive customers walking between check-out transaction areas near the protruding corner of the cased-water display would be focused on merchandise and not looking down at the floor. Sullivan concluded that Tunnel Express's failure to maintain a safe customer aisle at their check-out counter violated the standard of care for safe retail facilities and created the dangerous condition that caused Williams to trip and fall.

The defendants objected to Sullivan's affidavit in a timely filed reply memorandum, alleging that the plaintiffs had failed to supplement their discovery responses to provide Sullivan's name, address, or a short statement of his testimony.³ At the beginning of the hearing on the motion for summary judgment, the trial court explained that since the case had not yet been set for trial, “the Court hasn't issued its normal deadlines and things of that sort.” Accordingly, the trial court overruled the objection to Sullivan's affidavit and ruled that it was “going to allow that to be taken into account for the purposes of today's hearing.”

Despite the fact that the trial court overruled the objection to Sullivan's affidavit and allowed it to be filed by the plaintiffs in opposition to the motion for summary judgment, the trial court later declined to consider Sullivan's expert opinion in ruling on the motion for summary judgment. The trial court explained that since a surveillance video of the incident was available, there was no need for Sullivan's expert opinion as to whether the placement of the case of water created an unreasonably dangerous condition. Based on its consideration of the surveillance video, the trial court held that the case of bottled water clearly did not present an unreasonably dangerous condition:

When you watch the video, Ms. Williams walks around the case and next to the case and then turns, and at one point she stands in front of the drink display. And I did note in watching the video that she looks down at 21 seconds on the video. She - - her head clearly makes a nod down towards the floor in the direction of the drink display. She walks alongside of it and then maneuvers towards the register. [․] [S]he then makes a quick movement.

In no way, in no way, am I saying that she intentionally tripped. It's obvious that she didn't intentionally trip. She tripped on the case of water. But it was after she had walked around it. And then she gets distracted by some means. Plaintiff says she was purchasing a lottery ticket which was then going to be handed to her at the other side of the cash register. So she gets distracted, and so as she turns, you know, she at that point in time is close standing next to the water display and trips on the end of it and then falls.

But based on the security footage, the case of water was [․] in a well lit area, it was clearly visible. Again, it wasn't in the middle of the walkway, it was in an area where she was able to navigate around previous to it.

As for the magnitude of harm, any reasonable person who would encounter a case of water in a store that's next to other cases of water and other drinks available for purchase, I can't conclude that that would present ․ a likelihood of great harm. Again, the case of water is clearly seen, it's obvious, it would be obvious to anyone who is walking in that store, there's nothing blocking the view of the case of water, it's positioned in front of the register. It's clearly not an unreasonable or dangerous condition. So there's no duty breached because the case of water didn't present an unreasonably dangerous condition.

Based on these findings, the trial court granted the defendants’ motion for summary judgment and dismissed the plaintiffs’ suit with prejudice. A written judgment in conformity with the trial court's ruling was signed by the trial court on May 12, 2025, and the plaintiffs appealed devolutively.

ASSIGNMENTS OF ERROR

On appeal, the plaintiffs assign the following as error:

1. The district court erred in granting summary judgment in favor of the Defendants-Appellees in this matter.

2. The district court misapplied or failed to apply the appropriate risk-utility balancing test in determining that the case of water upon which Ms. Williams tripped constituted an unreasonably dangerous condition.

3. The district court improperly disregarded competent summary judgment evidence by disregarding the undisputed opinions of Appellants’ expert witness, who provided various reasons as to why the placement of the case of water constituted an unreasonably dangerous condition that violated industry standards.

4. The district court usurped the province of the jury by determining that the subject case of water was an “open and obvious” condition and therefore did not constitute an unreasonable risk of harm.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Cope v. Board of Supervisors of Louisiana State University & A&M College, 2025-0034, p. 4 (La.App. 1 Cir. 8/4/25), 418 So.3d 1035, 1038. A motion for summary judgment is properly granted if, after an opportunity for adequate discovery, 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. C.C.P. art. 966(A)(3); Cope, 2025-0034 at p. 4, 418 So.3d at 1038.

The party moving for summary judgment has the initial burden of proof. La. C.C.P. art. 966(D)(1). The movant can meet its burden by filing a motion, memorandum, and supporting documents proving there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.⁴ See La. C.C.P. art. 966(A)(3). Nevertheless, if the movant will not bear the burden of proof at trial on the issue that is before the court on the motion, the movant's burden on the motion does not require it 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. La. C.C.P. art. 966(D)(1); Newton v. St. Tammany Fire District No. 12, 2024-0942, p. 3 (La.App. 1 Cir. 2/28/25), 407 So.3d 923, 925.

Thereafter, the burden shifts to the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the movant is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). The supporting and opposing affidavits of experts may set forth such experts’ opinions on the facts as would be admissible in evidence under La. C.E. art. 702,⁵ and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967(A). An adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). In considering a motion for summary judgment, the trial court cannot make credibility determinations but must construe reasonable factual inferences in favor of the party opposing the motion, resolving all doubt in favor of the opponent. Scott v. City of New Orleans By & Through New Orleans Aviation Board, 2025-0513, pp. 5-6 (La.App. 4 Cir. 2/18/26), -- So.3d --, --.

A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could only reach one conclusion, there is no need for trial on that issue, and summary judgment is appropriate. Troncoso v. Point Carr Homeowners Association, 2022-0530, p. 16 (La.App. 1 Cir. 1/10/23), 360 So.3d 901, 914. 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; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Evans v. Abubaker, Inc., 2023-00955, pp. 6-7 (La. 5/10/24), 384 So.3d 853, 858.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that governs the trial court's determination of whether summary judgment is appropriate. Cope, 2025-0034 at p. 4, 418 So.3d at 1039. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Mills v. Cyntreniks Plaza, L.L.C., 2014-1115, p. 3 (La.App. 1 Cir. 8/19/15), 182 So.3d 80, 82, writ denied, 2015-1714 (La. 11/6/15), 180 So.3d 308.

APPLICABLE SUBSTANTIVE LAW

The defendants’ motion for summary judgment is based on the Louisiana Merchant Liability Act, La. R.S. 9:2800.6. Louisiana Revised Statutes 9:2800.6 provides in relevant part:

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.

The failure to prove any of the requirements enumerated in La. R.S. 9:2800.6 is fatal to a plaintiff's cause of action. Whitaker v. Mueller, Inc., 2025-0528, p. 5 (La.App. 1 Cir. 11/20/25), 2025 WL 3238654 at *3 (unreported).

A merchant owes a duty to persons using his premises to exercise reasonable care to keep such premises in a reasonably safe condition. La. R.S. 9:2800.6(A); Williams v. Liberty Mutual Fire Insurance Company, 2016-0996, p. 4 (La.App. 1 Cir. 3/13/17), 217 So.3d 421, 424, writ denied, 2017-0624 (La. 6/5/17), 219 So.3d 338. A hazardous condition is one that creates an unreasonable risk of harm to customers under the circumstances. Moore v. Murphy Oil USA, Inc., 2015-0096, p. 14 (La.App. 1 Cir. 12/23/15), 186 So.3d 13 5, 147, writ denied, 2016-00444 (La. 5/20/16), 191 So.3d 1066. Merchants are not insurers of their patrons’ safety, and a customer is under a duty to use ordinary care to avoid injury. A merchant is not absolutely liable every time an accident happens. Moore, 2015-0096 at pp. 14-15, 186 So.3d at 147.

Determining whether a condition creates an unreasonable risk of harm requires balancing the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of preventing the harm. Hawkins v. Hi Nabor Supermarket, LLC, 2023-0978, p. 6 (La.App. 1 Cir. 2/23/24), 387 So.3d 605, 608-09. Louisiana courts have adopted a four-part risk-utility balancing test to determine whether a condition presents an unreasonable risk of harm. This test requires consideration of: (i) the utility of the complained-of condition; (ii) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition;⁶ (iii) the cost of preventing the harm; and (iv) the nature of the plaintiff's activity in terms of its social utility or whether it is dangerous by nature. Hawkins, 2023-0978 at pp. 6-7, 3 87 So.3d at 609. 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. Hawkins, 2023-0978 at p. 7, 387 So.3d at 609.

DISCUSSION

The plaintiffs argue on appeal that the trial court erred by disregarding the undisputed opinion of their expert, Sullivan, who provided various reasons as to why the placement of the case of bottled water constituted an unreasonably dangerous condition that violated industry standards, such as the low height of the shopped-down display, the lack of color contrast between the low display of cased bottled water and the floor tiles, and the protrusion of the case of bottled water into the customer walkway.

In concluding that the defendants are entitled to summary judgment, the trial court found that the plaintiffs cannot establish that Tunnel Express breached a duty owed to Ms. Williams, “as this was clearly an open and obvious condition that did not present an unreasonable risk of harm.” In reaching this conclusion, the trial court expressly disregarded Sullivan's expert opinion, explaining that since there is a surveillance video of Williams's trip and fall, “there's no need for an expert to say where certain things should be or shouldn't be.”

In considering expert testimony for purposes of a motion for summary judgment, if an expert's affidavit contains opinions that lack an adequate factual basis, are not sufficiently reliable, or are otherwise inadmissible under La. C.E. art. 702 and La. C.C.P. art. 967(A), the opposing party must object to the affidavit. Sketchier v. Hernandez, 2020-0292, p. 8 (La.App. 1 Cir. 5/19/21), 326 So.3d 912, 918; see also La. C.C.P. art. 1425(F).⁷ In the absence of an objection, the trial court is statutorily obligated to consider the expert's opinions. Sketchier, 2020-0292 at p. 8, 326 So.3d at 918, citing La. C.C.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. The trial court must assume all affiants are credible. Sketchier, 2020-0292 at p. 8, 326 So.3d at 918. Moreover, the exclusion of an expert at the summary judgment stage is frowned upon because it improperly usurps the function of the factfinder at trial, which is to weigh the evidence and expert opinions in order to determine whether the plaintiffs have met their burden of proving the elements of their claims. Carpenter v. Thomas, 2022-0872, p. 13 (La.App. 1 Cir. 3/13/23), 362 So.3d 977, 985; see also Scott, 2025-0513 at p. 10, -So.3d at --.

In this case, no objection was made under La. C.C.P. art. 1425(F) to Sullivan's expert opinion. Furthermore, although the defendants raised an objection to Sullivan's affidavit on the grounds that the plaintiffs had failed to supplement their discovery responses to identify Sullivan as an expert witness, the trial court overruled the objection since the matter was not yet set for trial and the trial court had not yet set any deadlines. Accordingly, the trial court was statutorily obligated under La. C.C.P. art. 966(D)(2) to consider Sullivan's expert opinion on summary judgment. See Sketchier, 2020-0292 at p. 8, 326 So.3d at 918; see also Scott, 2025-0513 at p. 10, -- So.3d at -- (finding that the trial court erred in failing to consider the opinion of the plaintiff's expert regarding the existence of an unreasonably dangerous condition on summary judgment where no objection was made to the expert opinion).

Sullivan opined that the shopped-down and protruding corner of the floor display in a customer aisle was dangerous because it posed a tripping hazard in a foreseeable pedestrian path that violated nationally recognized standards for safe walkways in a retail facility. He further opined that it was foreseeable to Tunnel Express that reasonably attentive customers would follow Williams's path of travel between checkout stations and not notice the hazardous floor display at their feet and that Tunnel Express should have known that reasonably attentive customers walking between checkout stations near the protruding corner of the low floor display would be focused on merchandise and not looking down at the floor. Finally, Sullivan concluded that Tunnel Express's failure to maintain a safe customer aisle at their checkout counter violated the standard of care for safe retail facilities and created the dangerous condition that caused Williams to trip and fall. Sullivan's expert opinion creates a genuine issue of material fact as to the existence of an unreasonably dangerous condition. As previously noted, the trial court disregarded this expert opinion and granted summary judgment based on its finding that no unreasonably dangerous condition existed. By failing to consider Sullivan's expert opinion on summary judgment, the trial court improperly usurped the function of the factfinder at trial, which is to weigh the evidence and expert opinions in order to determine whether the plaintiffs have met their burden of proving the elements of their claims. This was error, and the summary judgment dismissing the plaintiffs’ claims must be reversed.

DECREE

For the reasons set forth herein, the May 12, 2025 judgment of the trial court granting summary judgment in favor of the defendants, Nautilus Insurance Company and Amen Plus, Inc. d/b/a Tunnel Express, and dismissing with prejudice the claims of plaintiffs, Patricia Williams, Elroy Williams, Donna Hanzy, and Dwight Smith, is reversed, and this matter is remanded for further proceedings. Costs of this appeal are assessed to defendants-appellees, Nautilus Insurance Company and Amen Plus, Inc. d/b/a Tunnel Express.

REVERSED AND REMANDED.

FOOTNOTES

2.   The original plaintiff in this matter, Dianna Williams, passed away on December 31, 2023, from causes unrelated to the events alleged in this suit. On November 12, 2024, Williams's children, Patricia Williams, Elroy Williams, Donna Hanzy, and Dwight Smith (collectively, “the plaintiffs”), filed an ex parte motion seeking to be substituted as plaintiffs in this matter following her death. The trial court granted the plaintiffs’ ex parte motion on November 15, 2024.

3.   The defendants also objected to Sullivan's affidavit based on the mistaken belief that it was unsigned and unnotarized; however, after discovering that the affidavit was in fact in proper form and the issue was due to the signatures not being visible on an electronic copy, the defendants withdrew this objection to the affidavit.

4.   The court shall consider only those documents filed or referenced in support of or in opposition to the motion for summary judgment but shall not consider any document that is excluded pursuant to a timely filed objection, which must be raised in a timely filed opposition or reply memorandum. La. C.C.P. art. 966(D)(2).

5.   Louisiana Code of Evidence article 702 provides, in relevant part:A. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;(2) The testimony is based on sufficient facts or data;(3) The testimony is the product of reliable principles and methods; and(4) The expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

6.   Although the fact that a condition on a merchant's premises was open and obvious previously barred recovery, the Louisiana Supreme Court has clarified the “open and obvious doctrine,” holding that the fact that a condition is open and obvious is simply a factor to be considered in the second prong of the risk-utility balancing test (the likelihood and magnitude of harm, including the obviousness and apparentness of the condition), but is not necessarily a bar to recovery. Hawkins, 2023-0978 at p. 6, n.2, 387 So.3d at 609, n.2, citing Farrell v. Circle K Stores, Inc., 2022-00849, pp. 12-13 (La. 3/17/23), 359 So.3d 467, 478.

7.   Louisiana Code of Civil Procedure article 1425(F) provides, in pertinent part:(1) A party seeking to challenge whether a witness qualifies as an expert or whether the methodologies employed by the witness are reliable under Code of Evidence Articles 702 through 705 shall file a motion for a pretrial hearing. The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court.(2) The court shall hold a contradictory hearing and shall rule on the motion not later than thirty days prior to the trial. At the hearing, the court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of Code of Evidence Articles 104(A) and 702 through 705. For good cause shown, the court may allow live testimony at the contradictory hearing.(3) If the ruling of the court is made at the conclusion of the hearing, the court shall recite orally its findings of fact, conclusions of law, and reasons for judgment. If the matter is taken under advisement, the court shall render its ruling and provide written findings of fact, conclusions of law, and reasons for judgment not later than five days after the hearing.(4) The findings of facts, conclusions of law, and reasons for judgment shall be made part of the record of the proceedings. The findings of facts, conclusions of law, and reasons for judgment shall specifically include and address:(a) The elements required to be satisfied for a person to testify under Articles 702 through 705 of the Louisiana Code of Evidence.(b)The evidence presented at the hearing to satisfy the requirements of Articles 702 through 705 of the Louisiana Code of Evidence at trial.(c) A decision by the judge as to whether or not a person shall be allowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence at trial.(d) The reasons of the judge detailing in law and fact why a person shall be allowed or disallowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence.(5) A ruling of the court pursuant to a hearing held in accordance with the provisions of this Paragraph shall be subject to appellate review as provided by law.

THERIOT, J.