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Davis v. M & E Food Mart10/30/2002
97), 699 So.2d 1081. In White, the court emphasized the temporal element, stating that the claimant bears the burden of proving that "the condition existed for some period of time." Id. at 1085. However, it "need not be specific in minutes or hours." Id. at 1084. The court further stated, "Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question." Id.
In Davenport v. Albertson's, Inc., 00-0685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, we reviewed, under the guidance of White, a trial court's grant of a merchant-defendant's motion for summary judgment. Central to Davenport were the elements of constructive notice and reasonable care. We rejected a rigid requirement for eyewitness testimony and accepted circumstantial evidence for proof of the temporal element. Id. Also, in keeping with White, we permitted the introduction and consideration of circumstantial evidence in the form of affidavits and photographs of conditions of the same store, in the same area of the store, on the same day of the week as the accident, and around the same time as the accident. Id. Regarding the element of reasonable care, we also permitted the introduction and consideration of the same circumstantial evidence. Id.
In the case sub judice, the plaintiffs' case regarding constructive notice is circumstantial, much like the plaintiff in Davenport. No one witnessed Mrs. Davis' accident, and Mrs. Davis is now deceased. Thus, no eyewitness testimony is available. However, the incident report completed by Ms. Benoit indicates the time at which she completed the report. All of the employees deposed testified about the regular sweeps and hazard inspections that the employees are required to perform daily pursuant to the store safety manual. The affidavits submitted by the plaintiff describe the general condition of M & E and the failure of employees to conduct scheduled sweeps or clean aisles on certain specific days at various times, including times during which regular sweeps should have been conducted.
The evidence presented in support of, and in opposition to, the motion for summary judgment could lead a reasonable factfinder to find that the grape had been on the floor in the produce area of the store for some period of time to satisfy the temporal requirement. Constructive notice is a requirement of La.R.S. 9:2800.6, the governing statute of the plaintiffs' case. Therefore, we find that the evidence attached to the plaintiffs' opposition memorandum is sufficient to find that summary judgment in favor of the defendant was improper because of the existence of a genuine issue of material fact as to whether the defendant had constructive notice of the presence of the grape on the floor.
DISPOSITION
For the foregoing reasons, we reverse the trial court's grant of summary judgment in favor of the defendant, M & E Food Mart, Inc. No. 2, d/b/a Market Basket, and remand this matter for further proceedings. We assess all costs of this appeal to the defendant, M & E Food Mart, Inc. No. 2, d/b/a Market Basket.
REVERSED AND REMANDED.
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