Weber v. Ray Brandt Nissan, Inc.

Citations: 880 So. 2d 999; 2004 La.App. 4 Cir. 0004; 2004 La. App. LEXIS 2031; 2004 WL 1945306Docket: No. 2004-CA-0004

Court: Louisiana Court of Appeal; August 18, 2004; Louisiana; State Appellate Court

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An appeal has been filed by Rosalyn M. Weber and her husband, Jay Weber, against Ray Brandt Nissan, Inc., its insurer New Hampshire Insurance Company, and Debartolo Capital Partnership following Mrs. Weber's slip and fall incident in the New Orleans Center Shopping Mall. The trial court granted summary judgment in favor of Ray Brandt and New Hampshire, dismissing them from the case, prompting the appeal.

Mrs. Weber's fall was attributed to a waxy substance on the mall floor, allegedly left from an automobile display. She fell shortly after exiting Macy’s, sustaining injuries including spinal and shoulder strains, a knee bruise, and low back pain, with potential surgery indicated by MRI results. Upon falling, she informed a mall security guard, who documented the scene as having a "slippery substance."

During discovery, it was revealed that an automobile from Ray Brandt was displayed in the area for three months prior to the incident, and the display was removed just before Mrs. Weber's fall. A Ray Brandt employee testified that the area was not cleaned during that time and was dusty when the automobile was removed, asserting that no Armor All or liquids were used on the car. Mrs. Weber acknowledged an unspecified substance on the floor during her fall but could not describe it before or after the incident.

After consulting a physician two days post-incident, Mrs. Weber's injuries were confirmed. The trial court's decision to grant summary judgment in favor of Ray Brandt and New Hampshire is now under appeal by the Webers.

The Louisiana Supreme Court's standard of review for summary judgment is de novo, as established in *Independent Fire Insurance Co. v. Sunbeam Corp.*, allowing for a fresh assessment of the trial court's decision. A summary judgment is warranted when there are no genuine issues of material fact, as detailed in La. C.C.P. art. 966(B), which mandates that the mover is entitled to judgment as a matter of law. Amendments to this article emphasize the procedure's aim for just, speedy, and inexpensive resolutions while clarifying that the burden of proof remains with the movant. If the opposing party fails to provide sufficient factual support for their claims, it indicates no genuine issue of material fact exists.

In the case at hand, the Webers have raised three errors: contesting the trial court's summary judgment due to insufficient evidence; arguing Ray Brandt's unreasonable actions caused Mrs. Weber's accident; and asserting that a factual dispute regarding custody and control of the accident area necessitates a trial.

For a 'slip and fall' claim under La. R.S. 9:2800.6(B), the plaintiff must prove: 1) the condition posed an unreasonable risk of harm; 2) the merchant had actual or constructive notice of the condition; and 3) the merchant failed to exercise reasonable care. Importantly, the absence of written safety procedures alone does not establish a lack of reasonable care. Constructive notice requires proof that the hazardous condition existed long enough for the merchant to have discovered it with reasonable care. Mere proximity of an employee does not imply constructive notice unless the employee was aware or should have been aware of the hazard.

The Webers argue that an incident report indicated a slippery substance in the area of Mrs. Weber's fall and that a maintenance worker suggested Armor All was present on the floor. However, this claim is contested by a deposition from a Ray Brandt employee, who asserted that no aerosol cleaner had been used on the automobile displayed in the vicinity.

Testimony revealed that, upon removing the automobile from the mall, no liquid or substance was observed in the vicinity, only dust and dirt. Mrs. Weber acknowledged that while she felt something on the floor when she fell, she did not see any substance before or after her fall, nor could she describe its color or smell. An employee from the Signature store noted that patrons had been slipping in that area, but did not confirm any specific slippery substance. After the fall, security and maintenance personnel inspected the area and confirmed that the floor was slippery. Mrs. Weber later claimed that the slippery condition was due to Armor All, as indicated by a maintenance worker, although this assertion lacked corroborative evidence. The incident report mentioned a "slippery substance," but it was based solely on Mrs. Weber's account without independent verification. The Webers failed to demonstrate that Ray Brandt was responsible for creating the hazardous condition or that he had actual notice of it. Additionally, they could not establish how long the condition existed prior to the incident. Under Louisiana law, the burden of proof in a summary judgment motion lies with the movant, who must show a lack of factual support for essential elements of the opposing party's claim.

If the opposing party fails to provide sufficient factual support to meet the evidentiary burden of proof at trial, no genuine issue of material fact exists. Initially, the burden of proof lay with Ray Brandt and New Hampshire as they moved for summary judgment. They successfully demonstrated a lack of factual support for the Webers' claims, shifting the burden to the Webers to prove they could meet their evidentiary burden at trial, which they failed to do.

Mrs. Weber testified about the slippery nature of the floor, but a Ray Brandt employee testified that no substances were present in the area where the automobile was displayed and that no products had been used on the automobile. The Webers needed to prove that a foreign substance on the floor was related to the Ray Brandt display and that Ray Brandt had notice of it. The fall occurred after the display was removed, and alternative causes for the fall exist that do not implicate Ray Brandt.

The Webers argued there was a genuine issue regarding custody and control of the area where Mrs. Weber fell, claiming that Ray Brandt retained control until they fulfilled cleaning obligations. However, custody and control were not material facts since Ray Brandt had physically vacated the area before the fall. The Webers did not demonstrate they could prove at trial that any substance related to the Ray Brandt display caused the fall, leading to the conclusion that there was no genuine issue of material fact regarding Ray Brandt's liability.

As a result, the Webers failed to establish a genuine issue of material fact to prevent summary judgment in favor of Ray Brandt, and the trial court's judgment was affirmed. UNICCO Service Company and its insurer were added as defendants in a supplemental petition.