Court: Louisiana Court of Appeal; November 18, 2014; Louisiana; State Appellate Court
Martha O. Grantham appeals a district court's summary judgment favoring Eldorado Resort Casino Shreveport and Full Service Systems Corporation (FSS), as well as the denial of her motion for an adverse presumption of liability due to spoliation of evidence. Grantham's lawsuit arises from a slip and fall incident at Eldorado's buffet on May 21, 2012, where she claims to have fallen in a puddle resembling salad dressing or banana pudding. She alleges that the defendants failed to address or warn about the hazardous condition, violating LSA-R.S. 9:2800.6.
In her amended petition, Grantham added FSS as a defendant, claiming it was responsible for cleaning the area. Both defendants moved for summary judgment, asserting that Grantham could not establish that they had actual or constructive notice of the hazardous condition. Grantham opposed this motion and sought an adverse presumption of liability due to Eldorado's failure to preserve video surveillance footage, which she claimed would have shown the duration of the substance on the floor. Eldorado acknowledged its usual policy of preserving 15-30 minutes of footage but explained that on the day of the incident, the designated employee was absent, resulting in only seven seconds of footage being saved.
The district court denied Grantham’s motion for an adverse presumption based on spoliation and granted summary judgment in favor of the defendants, dismissing her claims without providing written reasons. Grantham argues that the lack of footage adversely impacts her ability to prove her case, as spoliation typically creates a presumption that the missing evidence would have been detrimental to the party responsible for its absence.
Failure to produce evidence does not lead to an adverse presumption if adequately explained. The trial judge has discretion in determining sanctions on a case-by-case basis. The appellate review standard for imposing an adverse presumption due to evidence spoliation is whether the trial court abused its discretion. In *Acadian Gas Pipeline Sys. v. Nunley*, the court upheld the trial court's decision not to impose an adverse presumption, emphasizing that the obligation to preserve evidence must arise from a statute, contract, special relationship, or agreement, none of which were cited by the defendants.
In the current case, deposition testimonies were presented regarding the preservation of surveillance video related to an incident. Teresa Shirley, the guest relations/risk manager, indicated a practice of preserving at least 15 minutes of video before and after incidents, but only seven seconds were retained here, showing just the fall. Walter Patton, a security investigator, described the protocol for reviewing incident reports and video, noting that unreviewed footage is automatically overwritten. He was on vacation during the incident, and Gene Wilson, who was responsible for preserving the footage, lacked experience and failed to follow procedures, not realizing he had not saved the necessary video correctly.
Plaintiff failed to provide any statute or contract mandating Eldorado to preserve surveillance footage, relying instead on employee testimony regarding the company's practice of retaining 15-25 minutes of video around incidents. No written policy was presented, and there was no evidence indicating a duty for Eldorado to retrieve or preserve the footage. Additionally, there was no indication of intentional destruction of the footage; an employee's inexperience led to only the incident recording being saved. The trial court accepted Eldorado's explanation, and the appellate review found no abuse of discretion regarding the lack of an adverse presumption for spoliation.
Regarding summary judgment, the plaintiff argued that the district court erred in concluding she did not prove the defendants had constructive notice of the spill. Louisiana law permits summary judgment when there is no genuine issue of material fact, requiring the opposing party to present specific evidence rather than mere allegations. The plaintiff must demonstrate a genuine issue on essential elements of her claim, as speculation is inadequate. If the plaintiff fails to provide sufficient factual support, summary judgment is appropriate. Louisiana law favors summary judgments, while factual ambiguities must be resolved in favor of the opposing party.
Merchant liability for a patron’s injuries is governed by LSA-R.S. 9:2800.6, which requires merchants to exercise reasonable care in maintaining safe premises. The plaintiff bears the burden of proving all elements of a negligence claim, including the existence of hazardous conditions leading to the fall.
The document outlines the requirements for a plaintiff to establish a negligence claim against a merchant under Louisiana law. Key points include:
1. The condition must present an unreasonable risk of harm that is foreseeable.
2. The merchant must have created or had actual or constructive notice of the harmful condition prior to the incident.
3. The merchant must have failed to exercise reasonable care.
"Constructive notice" is defined as the claimant demonstrating the condition existed long enough that the merchant should have discovered it through reasonable care. Merely having an employee nearby does not establish constructive notice unless it can be shown that the employee was aware of the condition or should have been aware of it.
To succeed, a plaintiff must provide evidence that the harmful condition existed for a sufficient time prior to the incident, which cannot rely on speculation. The excerpt references case law, emphasizing that while there is no strict time limit, a claimant must show the condition existed for some time before the fall to prove constructive notice.
In the specific case discussed, the plaintiff slipped without knowing the nature or duration of the substance on the floor. Moreover, a witness from the restaurant did not observe the fall or the substance before or after the incident, nor did she see any other slips or complaints in the area. The witness indicated that if she had seen a hazard, she was required by policy to alert others and ensure proper signage was placed.
Jenkins reported that a guest slipped and fell while walking past a salad area towards the exit after stepping in food that had been dropped on the floor. He described the substance as resembling a potato salad and noted its yellow and green colors. Jenkins confirmed that none of the employees he interviewed had seen anything on the floor before the incident, nor did he know how long the substance had been there, only assuming it had been dropped by another guest. Teresa Shirley testified that Eldorado employees were trained to watch for spills but were not informed of any hazard prior to the fall. Victor Vargas, an FSS employee, stated that FSS had 87 employees responsible for cleaning the buffet area primarily at night and only cleaned spills when called by Eldorado staff; he was unaware of any employee noticing a hazard before the fall, although a spill was cleaned afterward. Video footage of the incident was shown to employees, none of whom reported seeing the substance prior to the fall. Walter Patton, a security investigator, believed the guest likely landed on the substance when she fell. Despite establishing that food was on the floor at the time of the fall, the evidence did not demonstrate how long it had been there. The court noted that a claimant must show that a hazard existed for a specific period to prove constructive notice under LSA-R.S. 9:2800.6. Given that no employees reported seeing the substance and that the area was busy that evening, the evidence did not meet the burden of proving constructive notice. Therefore, the court affirmed the summary judgment favoring Eldorado and FSS, with costs of the appeal assessed to the plaintiff, Martha O. Grantham.
