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Davis v. M & E Food Mart10/30/2002
REVERSED AND REMANDED.
The plaintiffs, Gordon Neal Davis, Jean Davis LeGros, and Dorothy Diann Davis, appeal the trial court's grant of a summary judgment dismissing their survival and wrongful death action against the defendant, M & E Food Mart, Inc., No. 2, d/b/a Market Basket Stores (M & E). For the following reasons, we reverse the trial court's judgment and remand this matter to the trial court for further proceedings.
DISCUSSION OF THE RECORD
This litigation arose from an accident which occurred on July 16, 1999, at the defendant's Lake Arthur, Louisiana store. At approximately 6:45 p.m. on that day, Lena Mable Davis, a seventy-six-year-old lady and the mother of the plaintiffs, slipped and fell in the produce area. She sustained a broken right hip in the fall which required hip replacement surgery. Mrs. Davis died on October 27, 1999, from complications associated with the replacement surgery.
The plaintiffs' suit was met with, among other pleadings, a motion for summary judgment which the trial court ultimately granted, dismissing their suit. They then instituted this appeal, asserting two assignments of error: (1) the trial court erred in concluding that the defendant had exercised reasonable care in keeping its aisles and floors free of hazardous conditions and, (2) the trial court erred in failing to accept circumstantial evidence as proof of the temporal element required of La.R.S. 9:2800.6, in direct contravention of this circuit's decision in Davenport v. Albertson's, Inc., 00-0685 (La.App. 3 Cir. 12/6/00), 774 So. 2d 340, writ denied, 01-0073 (La. 3/23/01), 788 So.2d 427.
In support of its motion for summary judgment, M & E submitted excerpts from the deposition testimony of Gloria Jean Davis LeGross, Garrett Guidry, Brandon Roy, Jennifer Benoit, and David Hanks. In opposition to the motion, the plaintiffs submitted the store's Customer Incident Report prepared by Jennifer Benoit; the entire deposition testimony of Jennifer Benoit, Garrett Guidry, David Hanks, and Brandon Roy; excerpts from the store's Safety Policy Manual; a copy of the store Daily Floor Maintenance Log for the week of the accident; a copy of the store's produce department Daily Floor Maintenance Log; and the affidavits of Diann Davis, Teresa Van Putten, and Linda Gleason Ritchie. The record and these exhibits establish the following facts concerning the incident:
Immediately after Mrs. Davis' fall, Ms. Benoit, who was the store assistant manager, went to her aid. Ms. Benoit instructed Cindy LeBlanc, another employee, to call 911. When Ms. Benoit competed her report documenting the accident, she listed the time of the fall as 6:45 p.m., and listed the cause of the accident as a grape on the floor. She described the grape as being "smashed" on the floor and "still very wet" when she observed the scene. Ms. Benoit documented this finding through photographs of the scene.
Brandon Roy worked as a bagger for the store and was one of the first employees to respond. He also stated that the grape was the only object on the floor he observed upon which Mrs. Davis could have slipped. He also testified that he has noticed grapes on the floor in the store in the past and that he has been instructed to pick up any grapes that he ever saw on the floor.
Garrett Guidry, also a bagger employed by the store, responded immediately to the emergency and noticed the smashed grape on the floor. He and Ms. Benoit cleaned the area after Mrs. Davis was removed and Ms. Benoit had taken photographs.
All of the employees testified about the regular sweeps and hazard inspections that the employees are required to perform daily pu
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