KIVONDA SHAW v. DG LOUISIANA LLC AMAZING CARE SERVICES JOQUETTA HOLMES ABC INSURANCE COMPANY AND XYZ INSURANCE COMPANY (2026)

This is a civil action. Appellant, Kivonda Shaw (“Ms. Shaw”), appeals the district court's June 23, 2025 judgment, which granted Appellee's, DG Louisiana LLC (“Dollar General”), motion for summary judgment, dismissing Ms. Shaw's claims with prejudice. The district court found no genuine issues of material fact exist regarding Dollar General's liability to Ms. Shaw for the injuries she sustained when she was attacked by a third party, Joquetta Holmes (“Ms. Holmes”). For the reasons that follow, we affirm the district court's judgment.

FACTS AND PROCEDURAL HISTORY

On June 20, 2023, Ms. Shaw filed a Petition for Damages (the “petition”) in Orleans Parish Civil District Court, naming Dollar General as a defendant, among others.¹ In the petition, Ms. Shaw alleged that on June 21, 2022, she was shopping at Dollar General located at 6500 Downman Road, New Orleans, Louisiana. At the same time, Ms. Holmes was shopping at Dollar General. Ms. Shaw and Ms. Holmes had a prior relationship—Ms. Holmes was employed at Amazing Care Services, L.L.C. (“Amazing Care”), the home health agency caring for Ms. Shaw's elderly mother (“Mother”), and Ms. Holmes was assigned as Mother's caregiver. Ms. Shaw alleged that Ms. Holmes was upset because Ms. Shaw reported Amazing Care to the State of Louisiana for mistreatment of Mother. Ms. Shaw further alleged that Ms. Holmes, unprovoked, attacked her and cut her on the face and lip with a box cutter that was left on the checkout counter by a Dollar General employee. After the attack, the police were called, and a warrant was issued for Ms. Holmes’ arrest for aggravated battery, pursuant to La. R.S. 14:34(A)(B).²

Ms. Shaw contended that Dollar General's negligence contributed to the incident and her resulting injuries, and that Dollar General breached its duty to keep the premises of their establishment clean, safe, free from defects and failed to use due care under the circumstances. She further contended that Dollar General was strictly liable pursuant to La. C.C. art. 2317 ³ and/or La. C.C. art. 660.⁴ In response, Dollar General filed a Peremptory Exception of No Cause of Action (the “exception”). Dollar General argued that it owed no duty to protect Ms. Shaw from the criminal act of a third party and that Ms. Shaw failed to plead factual allegations that her injuries were caused by Dollar General's alleged breach of duty. A hearing on the exception was held on November 6, 2023. Following, the district court sustained Dollar General's exception and ordered Ms. Shaw to amend her petition to state a valid cause of action against Dollar General.

On November 21, 2023, Ms. Shaw filed her First Supplemental and Amended Petition for Damages (the “amended petition”). In the amended petition, Ms. Shaw removed Amazing Care and XYZ as defendants, and she clarified that Dollar General's failure to keep the premises in a reasonably safe condition and leaving a box cutter unattended at the checkout counter was a contributing cause of her injuries. On March 13, 2024, Dollar General filed an Answer to Ms. Shaw's amended petition asserting general denials.

After continued motion practice, Dollar General filed a motion for summary judgment seeking to have Ms. Shaw's claims against it dismissed. Dollar General argued that it was entitled to summary judgment as a matter of law because Ms. Shaw could not meet her burden of proof on the element of duty. Specifically, Dollar General maintained that it had no duty to protect Ms. Shaw from the criminal acts of Ms. Holmes because her acts were not reasonably foreseeable. In support of its motion, Dollar General attached Ms. Shaw's petition, amended petition and deposition. In opposition, Ms. Shaw contended that summary judgment was premature and that genuine issues of material fact remained as to whether Dollar General owed a duty of care to her. She attached to her opposition interrogatories and request for admissions propounded on Dollar General and her deposition. Additionally, Ms. Shaw conveyed to the court that she wanted the opportunity to depose representatives of Dollar General and the employees who witnessed the incident. The motion for summary judgment was scheduled for hearing on January 10, 2025, and continued until April 17, 2025.

On April 8, 2025, Ms. Shaw filed a Motion to Re-Set Hearing Date on the motion for summary judgment, notifying the court that the parties were still scheduling depositions and awaiting deposition transcripts to be completed. The motion to reset was granted, and the hearing was scheduled for June 23, 2025. Thereafter, Ms. Shaw conducted witness depositions of (1) Charles Harper (“Mr. Harper”), Dollar General's store manager; (2) Reagan Sharett (“Ms. Sharett”), Dollar General's assistant store manager; and (3) Bryant Andrew (“Mr. Andrew”), Dollar General's district manager. After witness depositions were completed, Ms. Shaw filed a supplemental Plaintiff's Opposition to Defendant's Motion for Summary Judgment, wherein she argued that in light of the deposition testimony, there were concerns of spoliation of evidence ⁵ because the security camera footage from the incident could not be recovered from Dollar General's system.⁶

A hearing was held on the motion for summary judgment on June 23, 2025. Ruling from the bench, the district court granted Dollar General's motion for summary judgment and dismissed Ms. Shaw's claims with prejudice. This timely appeal followed.

STANDARD OF REVIEW

“It is well-settled law that ‘[t]his Court reviews the granting of ‘[a] summary judgment on appeal de novo, using the same criteria that govern the [district] court's determination of whether summary judgment is appropriate.’ ” Williams v. Touro Infirmary, 23-0180, p. 6 (La. App. 4 Cir. 12/20/23), 382 So.3d 345, 351 (alterations in original) (quoting Sebble on Behalf of Est. of Brown v. St. Luke's #2, LLC, 22-0620, p. 4 (La. App. 4 Cir. 3/6/23), 358 So.3d 1030, 1034). “Generally, on a motion for summary judgment, the burden of proof remains with the mover.” Id. (citation omitted). “But, if the moving party will not bear the burden of proof on the issue at trial and identifies an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the non-moving party must produce factual support sufficient to counter that assertion and establish that he will be able to satisfy his evidentiary burden of proof at trial.” Id. at pp. 6-7, 382 So.3d at 351 (quoting Cooper v. Brisco, 22-0196, p. 4 (La. App. 4 Cir. 10/18/22), 366 So.3d 552, 555. “However, if the opponent of the motion cannot do so, there is no genuine issue of material fact and summary judgment will be granted.” Id. at p. 7, 382 So.3d at 351 (quoting Cooper, 22-0196, p. 4, 366 So.3d at 555-56).

DISCUSSION

In her appeal to this Court, Ms. Shaw assigns two errors: (1) the district court erred in granting summary judgment in favor of Dollar General, finding that Ms. Shaw presented no genuine issue of material fact as to the element of duty for her negligence claims; and (2) the district court erred when it weighed evidence and made credibility determinations. We will address each assignment of error in turn.

Whether Dollar General owed a duty and, if so, whether the duty was breached

Ms. Shaw asserts that the district court erred in granting summary judgment in favor of Dollar General and dismissing her negligence and premises liability claims. Specifically, she argues that genuine issues of material fact remain regarding whether Dollar General breached its duty to maintain its premises in a reasonably safe condition and whether the risk that resulted in her injuries was foreseeable. Because Ms. Shaw's claims sound in negligence pursuant to La. C.C. art. 2315 and premises liability pursuant to La. C.C. art. 2317.1,⁷ we begin by examining the principles governing Louisiana's duty risk analysis.

Louisiana Civil Code Article 2315 provides that, “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Moreover, the Louisiana Supreme Court has held that “[w]hether a claim arises in negligence under [La. C.C.] art. 2315 or in premises liability under [La. C.C.] art. 2317.1, the traditional duty/risk analysis is the same.” Williams, 23-0180, p. 9, 382 So.3d at 352-53 (alterations in original) (quoting Farrell v. Circle K Stores, Inc., 22-00849, p. 5 (La. 3/17/23), 359 So.3d 467, 473). In order for a plaintiff to prevail under a negligence claim the plaintiff must “prove that: (1) the defendant had a duty; (2) the defendant's conduct breached that duty; (3) the defendant's conduct was a cause-in-fact of the plaintiff's injuries; (4) the defendant's conduct was a legal cause of the plaintiff's injuries; and (5) the plaintiff was damaged.” Ripp v. Walgreen La. Co., 25-0170, pp. 3-4 (La. App. 4 Cir. 12/4/25), ___ So.3d ___, ___, 2025 WL 3490796, at *2 (citing Simmons v. State, Dep't of Child. & Fam. Servs., 15-0034, p. 5 (La. App. 4 Cir. 6/24/15), 171 So.3d 1147, 1151).

The pertinent question in any negligence suit is whether the defendant owed the plaintiff a duty. Posecai v. Wal-Mart Stores, Inc., 99-1222, p. 4 (La. 11/30/99), 752 So.2d 762, 766 (citation omitted). It is well settled that “[w]hether a duty is owed is a question of law.” Id. (first citing Peterson v. Gibraltar Sav. & Loan, 98-1601, 1609, p. 7 (La. 5/18/99), 733 So.2d 1198, 1204; then citing Mundy v. Dep't of Health & Human Resources, 620 So.2d 811, 813 (La. 1993); and then citing Faucheaux v. Terrebonne Consol. Gov't, 615 So.2d 289, 292 (La. 1993)). “A merchant owes a duty of reasonable care to maintain its premises in a condition that is safe for those lawfully on it.” Ripp, 25-0170, p. 4, ___ So.3d at ___, 2025 WL 3490796, at *2. “[A]lthough business owners are not the insurers of their patron's safety, they do have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable.” Id. (citing Posecai, 99-1222, p. 5, 752 So.2d at 766). This “duty extends to all persons whose safety is foreseeably affected by the merchant's operation ․” Id. However, “there is generally no duty to protect others from the criminal acts of third persons.” Id. (quoting Posecai, 99-1222, p. 5, 752 So.2d at 766).

“Louisiana has long treated duty as the principal limitation in third-party crime cases, asking whether the harm [that occurred] is within the scope of risks created by the defendant's conduct and whether there is an ‘ease of association’ between conduct and injury.” Id. at p. 5, ___ So.3d at ___, 2025 WL 3490796, at *3 (citations omitted). In this case, Dollar General, as a merchant, owed Ms. Shaw a duty to exercise reasonable care in maintaining its premises in a reasonably safe condition. Ms. Shaw contends that Dollar General breached that duty by leaving a box cutter accessible on the register after an altercation erupted in the store, allowing it to be used to inflict additional injuries upon her. Thus, the issue before this Court is whether genuine issues of material fact remain as to the risk that the box cutter would be used to further injure Ms. Shaw fell within the scope of Dollar General's duty to maintain its premises in a reasonably safe condition.

In support of her position, Ms. Shaw points to her deposition testimony. According to Ms. Shaw, as she was waiting in the cashier line, Ms. Holmes approached her from behind and began striking her repeatedly with closed fists and pulling her hair, causing her to fall to the floor. While she was on the floor, Ms. Holmes’ daughter got on top of her and held her down while Ms. Holmes continued to strike her, screaming, “b****, I told you I was going to catch you, you got me fired from my job. I got children to feed.” At some point Ms. Shaw was able to stand up. Shortly afterwards, Ms. Holmes grabbed a box cutter left at the checkout counter and used it to cut Ms. Shaw on her left eyeball and on her lip. According to Ms. Shaw, an employee stocking shelves left the box cutter near the checkout counter while he attempted to intervene in the altercation.

Ms. Sharett, the cashier on duty, testified that she saw the altercation—Ms. Holmes entered the store, exchanged words with Ms. Shaw and a fight ensued. Although Ms. Sharett stated that the fight was eventually broken up by bystanders, she did not see a box cutter and could not recall whether any employee was stocking shelves or breaking down boxes that day. Mr. Harper, the store manager, testified that he was in the office when he heard a commotion. Upon leaving the office, he observed the altercation and attempted to break it up. After the altercation concluded, Mr. Harper called the police. When the police arrived at the store, both Ms. Shaw and Ms. Holmes were gone. The current district manager, Mr. Andrew, testified as to Dollar General's general policies regarding incidents but did not have first-hand knowledge of the subject altercation.

Dollar General posits that the intentional acts of Ms. Holmes constituted independent criminal acts that were not reasonably foreseeable, and therefore fell outside the scope of any duty owed by Dollar General. To support its argument, Dollar General cites Hill v. Lundin & Associates, Inc., 256 So.2d 620 (La. 1972). In Hill, the plaintiff brought suit against defendants for the injuries she sustained when she tripped and fell over a ladder that had been left on the defendant's premises by a contractor. Id. 256 So.2d at 621. The Supreme Court was tasked with determining “whether the defendant breached a legal duty imposed to protect against the particular risk involved.” Hill, 256 So.2d at 622 (citations omitted). The Court rejected the argument that “simply leaving a ladder unattended is negligence” and reasoned that “although the defendant would owe a duty to protect certain persons under certain circumstances from this risk, it is not an insurer against every risk of harm which is encountered in connection with the ladder.” Id. The Court continued:

Here a third party had moved the ladder to the ground, and the plaintiff was injured as she sought to prevent the child from tripping on the ladder. The basic question, then, is whether the risk of injury from a ladder lying on the ground, produced by a combination of defendant's act and that of a third party, is within the scope of protection of a rule of law which would prohibit leaving a ladder leaning against the house.

Id.

The Court explained that “[f]orseeability is not always a reliable guide, and certainly it is not the only criterion for determining whether there is a duty-risk relationship. Just because a risk may foreseeably arise by reason of conduct, it is not necessarily within the scope of the duty owed because of that conduct.” Id. (citations omitted). To the contrary, “[t]he ease of association of the injury with the rule relied upon, however, is always a proper inquiry.” Id. (citation omitted).

Similarly, in Campbell v. Orient-Express Hotels Louisiana, Inc.—where the plaintiff brought suit against defendant for the injuries he sustained when he was robbed in the defendant's courtyard/driveway—the Supreme Court held that the scope of duty did not encompass the harm that the plaintiff suffered and that the defendant was entitled to summary judgment. 24-00840 (La. 3/21/25), 403 So.3d 573. In determining whether the duty owed by the defendant encompassed the risk of harm the plaintiff suffered, Justice Crain, in a concurring opinion, expounded:

Once a duty is established, the question is whether the duty extends to cover the subject manner of injury—the scope of duty element. The extent of protection owed to a particular plaintiff depends on the particular facts and circumstances and is determined case-by-case to avoid making a defendant the insurer of all persons against all harms. Todd v. State Through Dept. of [Soc. Servs.], [Off.] of [Cmty. Servs.], 96-3090 (La. 9/9/97), 699 So. 2d 35, 39. As we recognized for the breach element in Farrell v. Circle K Stores, Inc., [22]-00849 (La. 3/17/23), 359 So. 3d 467, 478, scope of duty can be resolved on summary judgment if reasonable persons could not disagree that the manner of injury is either within or beyond the scope of duty. Relevant considerations are foreseeability and ease of association. In this case, we must analyze whether the manner of [plaintiff's] injury was 1) foreseeable as a result of the [defendant's] actions, or inactions ․ and 2) easily associated with the [defendant's] duty to keep its premises reasonably safe from criminal activity.

Id. at p. 28, 403 So.3d at 594-95 (Crain, J., concurring).

Applying the principles outlined in Hill and Campbell to the instant case, the relevant inquiry is not whether the presence of a box cutter played some role in the sequence of events that resulted in Ms. Shaw's injuries. Rather, the question is whether Dollar General's alleged conduct in leaving a box cutter on the checkout counter exposed Ms. Shaw to the particular risk that ultimately caused her injuries.

Here, the risk encountered by Ms. Shaw was the intentional criminal conduct of Ms. Holmes, who allegedly seized the box cutter during an ongoing altercation and used it as a weapon. As Dollar General argues, it would not matter if Ms. Holmes used a box cutter, an axe or any other object found in its store because there is no ease of association between Dollar General's duty to keep its premises in a reasonably safe condition and the risk of injury to Ms. Shaw as a result of Ms. Holmes’ independent criminal act. Dollar General is not an insurer against every risk of harm that may occur on its premises. See Bell v. American General Inv. L.L.C., 911 So. 2d 408 (La. App. 2 Cir. 9/21/05) (wherein the court held that “the merchant is not the insurer of the safety of his patrons; a store owner is not liable every time an accident happens”). The summary judgment evidence produced by Ms. Shaw does not establish that Dollar General could have reasonably anticipated that Ms. Holmes would attack her or that during the course of the altercation, Ms. Holmes would obtain a box cutter and use it to inflict additional injuries upon her. Reasonable persons must agree that Dollar General's duty to its customers to keep its premises in a reasonably safe condition does not extend to the manner of Ms. Shaw's injury.

Accordingly, based on our de novo review, we conclude that there are no genuine issues of material fact that Dollar General breached its duty to Ms. Shaw. As such, summary judgment is warranted as a matter of law. This assignment of error is unpersuasive.

Credibility determinations

In her second assignment of error, Ms. Shaw contends that the district court improperly made credibility determinations. However, she fails to cite any evidence in the record demonstrating that the district court weighed witness credibility or resolved disputed facts. “Arguments of counsel are not evidence.” Woodland Borrow Pits, LLC v. Woodland Plantation, LLC, 24-0841, p. 17 (La. App. 4 Cir. 7/16/25), 418 So.3d 497, 509 (citation omitted). Absent any factual support for this contention, this assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED

FOOTNOTES

1.   Amazing Care Services, LLC, Ms. Holmes, ABC Insurance Co. (“ABC”) and XYZ Insurance Co. (“XYZ”) were also named as defendants in the petition.

2.   Louisiana Revised Statutes 14:34(A)(B) provides:A. Aggravated battery is a battery committed with a dangerous weapon.B. Whoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both. At least one year of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence if the offender knew or should have known that the victim is an active member of the United States Armed Forces or is a disabled veteran and the aggravated battery was committed because of that status.

3.   Louisiana Civil Code Article 2317 provides in pertinent part:We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.

4.   Louisiana Civil Code Article 660 provides:The owner is bound to keep his buildings in repair so that neither their fall nor that of any part of their materials may cause damage to a neighbor or to a passerby. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

5.   “The theory of ‘spoliation of evidence’ refers to an intentional destruction of evidence for the purpose of depriving opposing parties of its use.” Desselle v. Jefferson Hosp. Dist. No. 2, 04-455, p. 16 (La. App. 5 Cir. 10/12/04), 887 So.2d 524, 534 (first citing Pham v. Contico Intern. Inc., 99-945, p. 4 (La. App. 5 Cir. 3/22/00), 759 So.2d 880, 882; and then citing Quinn v. RISO Investments, Inc., 03-0903, p. 5 (La. App. 4 Cir. 3/3/04), 869 So.2d 922, 927).

6.   It should be noted that Ms. Shaw did not assign the spoliation of evidence as error in her appeal nor did she brief the issue pursuant to Rules 2-12.4(A)(5) and (B)(4). Under Rule 2-12.4(B)(4), issues not briefed are deemed abandoned.

7.   Louisiana Civil Code art. 2317.1 provides:The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Judge Paula A. Brown