VALARIE CYPRIAN v. STATE FARM FIRE AND CASUALTY COMPANY AND MAIN MARKET LLC

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Court of Appeal of Louisiana, First Circuit.

VALARIE CYPRIAN v. STATE FARM FIRE AND CASUALTY COMPANY AND MAIN'S MARKET LLC

NO. 2016 CA 0717

Decided: February 17, 2017

BEFORE: PETTIGREW AND McDONALD, JJ., AND CALLOWAY,1 J. Pro Tem. JON M. YEAGER, ANTHONY V. LANASA, JR., MARK G. TAUZIER, METAIRIE, LA, ATTORNEYS FOR PLAINTIFF-APPELLANT VALARIE CYPRIAN JOHN E. MCAULIFFE, JR., METAIRIE, LA, ATTORNEY FOR DEFENDANTS-APPELLEES STATE FARM FIRE AND CASUALTY COMPANY AND MAIN'S MARKET LLC

In this slip and fall case, the plaintiff, Valarie Cyprian, appeals a January 22, 2016 judgment that granted summary judgment in favor of the defendants, Main's Market, LLC (Main's Market), and its insurer, State Farm Fire and Casualty Company (State Farm), dismissing her claims with prejudice. The issue presented is whether the district court erred in concluding that plaintiff had failed in her burden of establishing genuine issues of material fact concerning an essential element of her cause of action; to wit, whether Main's Market created, or had knowledge or constructive knowledge of, an unreasonably dangerous condition -- the presence of a clear liquid on the floor -- that caused Ms. Cyprian to slip and fall. After a thorough review of the record, the evidence presented and the arguments of the parties, we affirm.

FACTS

On October 27, 2013, Ms. Cyprian was a patron at Main's Market in Folsom, Louisiana, a store with which she was familiar and frequented “almost every Sunday.” Ms. Cyprian walked past the produce section and was traversing the aisle in front of the deli when she slipped and fell to the ground. It is undisputed that there was a small amount of liquid, appearing to be water, on the floor where Ms. Cyprian fell. According to Ms. Cyprian, after the fall, the back of her dress was wet. A customer who witnessed Ms. Cyprian on the floor notified the store manager, Terry Sharp, who immediately went to Ms. Cyprian's aid, and to investigate what had occurred. According to Mr. Sharp, he was unaware that there was anything on the floor prior to the incident, and he had not received any reports of a liquid or any substance on the floor from either employees or other customers. According to Mr. Sharp, he had been in the area where Ms. Cyprian fell approximately fifteen minutes prior to the incident, and there was no liquid (or any other substance) on the floor at that time. However, upon arriving at the area where Ms. Cyprian slipped and fell, he noted it “appeared that [Ms. Cyprian] had slipped in some clear substance which appeared to be water.” Mr. Sharp observed spots of liquid the size of quarters or half dollars on the floor, which he presumed was water.

PROCEDURAL BACKGROUND

On October 20, 2014, Ms. Cyprian filed a petition for damages, alleging that a slippery substance on the floor at Main's Market presented an unreasonable risk of harm, and that it had been on the floor for a length of time such that Main's Market knew or should have known of the hazardous condition and is, thus, liable to her for the serious injuries she alleged were caused when she slipped on the substance and fell. She alleged that State Farm, which was also named as a defendant, issued a policy which provided coverage for those damages.

The defendants answered the petition and requested a jury trial. On June 9, 2015, defendants filed a motion for summary judgment. In addition to a memorandum in support thereof, defendants also rely on attached excerpts of the deposition of Ms. Cyprian and an affidavit by Mr. Sharp. The hearing on the motion was continued, by agreement of the parties, following which the deposition of Mr. Sharp was taken. Defendants then filed a supplemental memorandum and attached excerpts from that deposition of Mr. Sharp.

Ms. Cyprian opposed the motion and filed a memorandum together with still photographs, depicting images taken from Main's Market surveillance video, her interrogatories and request for production of documents, together with the responses thereto provided by Main's Market, and excerpts of Mr. Sharp's deposition.2

A hearing on the motion for summary judgment was held, following which, on January 20, 2016, the district court rendered judgment in favor of the defendants, dismissing Ms. Cyprian's claims with prejudice. This appeal followed.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Dickerson v. Piccadilly Restaurants, Inc., 1999-2633 (La. App. 1 Cir. 12/22/00), 785 So.2d 842, 844. The mover has the burden of affirmatively showing the absence of a genuine issue of material fact and any doubt on this score should be resolved against granting the motion. Id. A motion for summary judgment should be granted if the pleadings, deposition, answers to interrogatories, admissions on file and affidavits show that 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(B).3

However, when a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Id. In effect, after the mover files sufficient documentation to support the motion for summary judgment, the burden shifts to the opponent to prove material facts are at issue. Id. Because it is the applicable substantive law that determines materiality, 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. Id. Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court's determination of the issues. Vanner v. Lakewood Quarters Retirement Community, 2012-1828 (La. App. 1 Cir. 6/7/13), 120 So.3d 752, 755.

MERCHANT LIABILITY LAW

The substantive law applicable herein, including the burden of proof in merchant liability cases, is La. R.S. 9:2800.6, which provides as follows, in pertinent 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.

C. Definitions:

(1) “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. The 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.

Although the owner of a commercial establishment has an affirmative duty to keep the premises in a safe condition, he is not the insurer of the safety of his patrons and is not liable every time an accident occurs. Jackson-Silvan v. State Farm Cas. Ins. Co., 2014-0939, p. 4 (La. App. 1 Cir. 1/7/15) (unpublished), writ denied, 2015-0637 (La. 5/22/15), 171 So.3d 252. The statute is clear and unambiguous, and contains no provision for shifting the burden to a defendant to prove its lack of culpability. Rather, it is the plaintiff's burden to prove each element of a cause of action under La. R.S. 9:2800.6(B), and the failure to prove any of these elements is fatal to the plaintiff's cause of action. White v. Wal-Mart Stores, Inc., 1997-0393 (La. 9/9/97), 699 So.2d 1081, 1082, 1086.

Because constructive notice is plainly defined to include a mandatory temporal element, where a claimant is relying upon constructive notice under La. R.S. 9:2800.6(B)(2), the claimant must come forward with positive evidence showing that the damage-causing condition existed for some period of time, and that such time was sufficient to place the merchant on notice of its existence. White, 699 So.2d at 1084. The statute does not allow for the inference of constructive notice absent some showing of this temporal element. Thus, the claimant must make a positive showing of the existence of the condition prior to the fall. Id. at 1084.

ASSIGNMENT OF ERROR

In her sole assignment of error, Ms. Cyprian contends the district court erred in granting the summary judgment in this matter, claiming that there are genuine issues of material fact, and asserting that she will be able to present positive evidence that the condition -- the water on the floor -- existed for some time prior to her fall, thus establishing constructive notice. In the alternative, she asserts that she will be able to present evidence that shows Main's Market created the unreasonable dangerous condition.

DISCUSSION

Ms. Cyprian acknowledges that she has the burden of proving that Main's Market either created the condition or had actual or constructive notice of the condition, which caused her to fall. She maintains that in opposition to the motion, she presented sufficient evidence to establish a genuine issue concerning these facts, and that she will be able to bear her burden of proof at a trial on the merits. For the following reasons, and based on the evidence presented, we disagree.

Evidence Presented

Ms. Cyprian testified that she was alone at the store, and that she had been shopping approximately ten minutes prior to her fall. She testified that at the time of her fall, she was holding her keys and she was talking to her mother on her cellphone, which she also held in her hands. She testified that the incident happened really quickly and that her foot slid on an unknown substance, causing her to slip, hit her knee, and fall onto her lower back and buttocks. She did not see what caused her to slip, but stated that after she fell, the entire back of her dress was wet. After her fall, she noticed a clear liquid on the floor, but she testified she did not know how long the liquid had been on the floor. She further testified that she did not know how the liquid came to be on the floor.

Mr. Sharp stated in his affidavit that another customer reported the incident to him. He stated he immediately went to the location of plaintiff's fall and found her on the floor. According to Mr. Sharp, it appeared that Ms. Cyprian had slipped on a clear substance on the floor, which appeared to be water. Mr. Sharp also attested that to his knowledge, prior to the incident no one had seen the liquid on the floor, and he had received no reports of any foreign substance on the floor. In his deposition, Mr. Sharp testified that he had walked through the area of Ms. Cyprian's fall approximately fifteen minutes before the incident and did not see any liquid on the floor. (He reported that this testimony was corroborated by viewing the surveillance video.) He testified that he jotted down some notes while speaking with Ms. Cyprian about her fall, and that later he composed a narrative report to be included in the store's file. Although Mr. Sharp had his notes from that day, he testified that he had been unable to locate the narrative report, which apparently had been lost.

Mr. Sharp stated that when he found Ms. Cyprian on the floor, he observed what appeared to be water droplets “about the size of a quarter to a half dollar” on the floor. Mr. Sharp speculated (but was unable to verify) that the water that was on the floor may have come from some wet produce that had been picked out by another customer and placed in that customer's buggy, but not placed in one of the plastic bags that Main's Market makes available for customers to place produce in.4 According to Mr. Sharp, the video surveillance depicted this other customer's actions in placing unbagged produce in his buggy and continuing to shop, going past the area where Ms. Cyprian fell.

According to Mr. Sharp, Main's Market did not have an instruction manual for its employees. Mr. Sharp also testified that the store did have “wet floor” signs to use whenever they had knowledge that the floor was wet. He further testified Main's Market had no formal procedures or specific employee training in place for inspecting and/or cleaning the store, because the store was so small and the employees were “constantly walking the areas, working.” The employees were expected to follow what he described as the “philosophy” of the store: “pick it up, don't pass it up.”

APPLICATION OF LAW

The wording of La. R.S. 9:2800.6(B)(2) that requires the plaintiff to prove that the merchant created the condition which caused damage means there must be proof that the merchant, and not a patron, is directly responsible for the spill or the hazardous condition. Ross v. Schwegmann Giant Super Markets, Inc., 1998-1036 (La. App. 1 Cir. 5/14/99), 734 So.2d 910, 913, writ denied. 1999-1741 (La. 10/1/99), 748 So.2d 444. In Schwegmann, a case very similar to the one presently before us, the plaintiff slipped and fell after stepping on crab salad that had been dropped on the store floor. Id. at 911. On the day of the fall, a self-serving sampling station of crab salad was placed on the counter of the seafood department, and plaintiff fell approximately ten to twelve feet away from that sampling station. Id. It could not be determined by the evidence who dropped the crab salad on the floor, but it was established that customers had been sampling the crab salad throughout the day. Id. at 912-13. Plaintiff testified in deposition that she did not see what she slipped on; she did not know how the crab salad came to be on the floor, or how long it was on the floor prior to her fall. Id. at 912. According to the deposition testimony of the supervisor of the seafood department at the time, he had walked past the area of the incident approximately thirty to forty minutes prior to plaintiff's fall and he did not see anything on the floor. He too, testified that he did not know how the crab salad got on the floor or how long it had been there. Id. An affidavit of a safety consultant was also submitted by the plaintiff asserting that Schwegmann failed to have reasonable inspection procedures and that, by creating the sampling station, it was foreseeable that spillage was likely to occur, and Schwegmann failed to exercise reasonable care in creating the spillage hazard. Id.

In affirming the grant of a motion for summary judgment in favor of Schwegmann, this court found the plaintiff failed to establish a genuine issue regarding actual or constructive notice. This court noted that there was no evidence that the crab salad was on the floor due to an act by a Schwegmann employee and stated that the overwhelming implication was that the salad had been dropped by a sampling customer. Id. at 913. This court concluded that there was nothing in the record that could establish that Schwegmann had any notice of the crab salad on the floor; thus, there was no issue of fact that Schwegmann had either created or had actual or constructive notice of the salad on the floor. Id.5

The White case, supra, also involved a slip and fall on clear liquid on the floor of a Wal-Mart store. Similarly to the case before us, as well as the above cited Schwegmann case, the plaintiff in White elicited testimony concerning the store's safety procedures and clean-up sweeps of the store's floors. However, also similar to this case and the Schwegmann case, the White plaintiff was unable to produce any evidence that Wal-Mart employees themselves had created or had actual knowledge of the spill, nor was she able to produce any positive evidence regarding how the liquid came to be on the floor or how long before the fall the liquid had been on the floor. The supreme court noted that La. R.S. 9:2800.6(B) was clear and unambiguous, and requires the plaintiff to prove each of its three subsections with no shifting of the burden. White, 699 So.2d at 1084. Moreover, the statute requires the plaintiff, in order to prove constructive notice, to show with positive evidence that the condition existed for some period of time prior to the fall and the merchant failed to take reasonable measures to remove the risk of harm. 699 So.2d at 1085. The supreme court concluded that the absence of such evidence cannot support the plaintiff's cause of action and is, rather, fatal to the plaintiff's cause of action. 699 So.2d at 1086. With regard to the plaintiff's burden to prove that the merchant failed to exercise reasonable care pursuant to La. R.S. 9:2800.6(B)(3), the court noted it did not reach that issue since it had already determined that plaintiff failed to prove actual or constructive notice as mandated by subsection (B)(2). Id. Based on plaintiff's failure to prove the requirements under subsection (B)(2) alone, the supreme court reversed the court of appeal and affirmed the district court's grant of summary judgment in favor of Wal-Mart. Id. See also, Kennedy v. Wal-Mart Stores, Inc., 1998-1939 (La. 4/13/99), 733 So.2d 1188, 1191, where the plaintiff's failure to prove how long a liquid had been on the floor was a sufficient basis to support summary judgment in favor of the merchant.

CONCLUSION

Ms. Cyprian did not present any evidence that an employee of Main's Market was directly responsible for the liquid being on the floor at the time of her accident. Ms. Cyprian also presented no evidence whatsoever regarding how long the liquid was on the floor prior to her fall. This lack of evidence is fatal to her cause of action under La. R.S. 9:2800.6, and summary judgment in favor of Main's Market was proper. Accordingly, the judgment of the district court is hereby affirmed. All costs of this appeal are assessed to the plaintiff, Valarie Cyprian.

AFFIRMED.

FOOTNOTES

2.   We note that the surveillance video, although referred to by both parties in memoranda, in brief, and at the hearing before the district court, was not introduced into evidence. At the hearing, counsel for Ms. Cyprian remarked that they would have liked to have the video at the hearing, but ran into problems with getting it from the computer to the hearing. While we may consider testimony regarding said video, we do not have access to what is shown therein for our de novo review. The plaintiff did attach to her memorandum three copies of a still photograph that appears to have been taken from said video. The image on the photograph is blurred but appears to depict the clear aisle in Main's Market at the end of which Ms. Cyprian's fall occurred.

3.   Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act. As this motion for summary judgment was filed on November 19, 2015, we refer to the former version of the article in this case. See Acts 2015, No. 422, §§ 2 and 3.

4.   Mr. Sharp testified that Main's Market provides plastic bags for customers to put produce in, but the store has no instruction or warning signs advising customers to use the bags, especially when choosing produce that has been on ice and is wet. He stated that customers should certainly use the bags, but that is not something that the store employees could tell customers they have to do. Moreover, he confirmed that the employees were not instructed to direct the customers to use the bags to avoid tracking water onto the floors of the store, nor were they instructed on what to do if they saw a customer place wet produce, unbagged, into their cart and continue shopping. Mr. Sharp testified that if he personally witnessed a customer with fresh produce dripping water onto the floor, he would advise the customer to place the produce in one of the plastic bags provided.

5.   This court also rejected plaintiff's evidence regarding Schwegmann's lack of reasonable inspection procedures, and plaintiff's assertion that the lack of reasonable inspection procedures was proof that Schwegmann created an unreasonable risk of harm. This court held that such an interpretation regarding the burden of proof would nullify the separate requirement of La. R.S. 9:2800.6(B)(3), and does not apply to the burden in subsection (B)(2) of proving the merchant had actual or constructive notice of the unreasonably dangerous condition. 734 So.2d at 913. A similar finding was reached in the Jackson-Silvan,supra, case, where this court held that the plaintiff's evidence of the store's practices (i.e., store's practice of selling fresh chicken in bags and boxes that can leak, creating an unreasonably dangerous condition), was misplaced, as such evidence does not prove any of the required elements of notice pursuant to La. R.S 9:2800.6(B). 2014-0939, at p. 4.

PETTIGREW, J.

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