Cali v. Cracker Barrel Old Country Store, Inc.

Filing 20

ORDER AND REASONS DENYING 11 Motion for Summary Judgment. Signed by Judge Eldon E. Fallon on 11/28/2016. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROSE CALI
VERSUS
CRACKER BARREL OLD COUNTRY STORE, INC.

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CIVIL ACTION
NO. 16-167
SECTION "L" (3)

ORDER & REASONS
Before the Court is Defendant’s Motion for Summary Judgment, R. Doc. 11. Plaintiff
opposes the Motion, R. Doc. 12. Defendant timely replies, R. Doc. 19. Having reviewed the
Parties’ arguments and the applicable law, the Court now issues this Order and Reasons.
I.

BACKGROUND
Plaintiff Rose Cali brings this personal injury action alleging injuries stemming from a

slip-and-fall in a Cracker Barrel. According to Cali, she tripped and fell in Hammond, Louisiana,
on the property of Cracker Barrel Old Country Store No. 352 on March 28, 2015. R. Doc. 1-1 at
2. Specifically, Cali alleges that she was walking up to the porch of the Cracker Barrel when she
tripped and fell over the bottom section of a rocking chair that was in her path. R. Doc. 1-1 at 2.
Cali asserts that the rocking chair constituted an unreasonably dangerous condition, because it
was “sticking out” into the walking path. R. Doc. 1-1 at 2–3. Cali’s injuries include a broken hip,
physical and mental pain and suffering, a total hip replacement surgery, and treatment with
physical therapists. R. Doc. 1-1 at 3. Cracker Barrel filed an Answer, denying its negligence and
asserting Cali’s comparative negligence. R. Doc. 4 at 1–2.
II.

PRESENT MOTIONS
a.

Defendant’s Motion for Summary Judgment (R. Doc. 11-3)

Defendant argues that its Motion should be granted because Plaintiff cannot establish the
essential elements of her case and there are no issues of material fact. R. Doc. 11-3 at 1.
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According to Defendant, to prevail on her claim under La. R.S. 9:2800.6, Plaintiff must
demonstrate (1) that the chair “presented an unreasonable and reasonably foreseeable rick of
harm,” (2) that Defendant “created or had actual or constructive notice of the condition,” and (3)
that Defendant “failed to exercise reasonable care.” R. Doc. 11-3 at 3 (citing White v. Wal-Mart
Stores, Inc., 97-0393 (La. 9/9/97); 699 So. 2d 1081, 1084). Defendant argues that because the
chair was open and obvious, it did not present an unreasonable risk of harm. R. Doc. 11-3 at 3.
(citing Watts v. Scottsdale Ins., (La. App. 2 Cir. 6/30/10) 43 So. 3d 266). Further, Defendant
contends that the Court—not the jury—must determine which risks are unreasonable. R. Doc.
11-3 at 4. Finally, Defendant argues that while it had a duty to use reasonable care, its duty did
not extend to ensuring the safety of every restaurant patron, and thus Plaintiff cannot recover
under a theory of negligence. R. Doc. 11-3 at 5.
According to Defendant, Plaintiff frequently visited this restaurant, and had sat in these
rocking chairs on numerous occasions. R. Doc. 11-3 at 5. Further, Defendant avers that
surveillance video demonstrates other patrons walked past the chair without incident, and the
chairs were in plain sight, visible to anyone who entered the restaurant. R. Doc. 11-3 at 6.
Defendant contends that this evidence disproves Plaintiff’s “completely unsupported and
speculative allegations” that the rocking chair was placed in a hazardous location. R. Doc. 11-3
at 7. Thus, Defendant argues, Plaintiff has not provided any evidence that the rocking chair was a
“hazardous condition” that “create[d] an unreasonable risk of harm to customers” as required to
recover under La. R. S. 9:2800.6. R. Doc. 11-3 at 11.
If the Court does find that the chair’s location created a foreseeable risk of harm,
Defendant argues in the alternative that any potential risk was not unreasonable. R. Doc. 11-3 at
13. Defendant avers that the rocking chairs provide social value and utility to the restaurant, both

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as a place for patrons to sit and as a way to display goods for sale. R. Doc. 11-3 at 13. Thus,
according to Defendants, the benefit of the chairs outweighs the small risk of harm, such that it
did not create an unreasonable risk of harm. R. Doc. 11-3 at 14.
Further, Defendant contends that Plaintiff cannot prove that Cracker Barrel had actual or
constructive notice of the allegedly hazardous condition, or failed to exercise reasonable care. R.
Doc. 11-3 at 14. According to Defendant, it is not foreseeable that someone would trip over a
chair that was visible to anyone who walked by it. R. Doc. 11-3 at 15. Defendant contends that
its employees were trained to “look for hazards” and frequently inspected the porch areas. R.
Doc. 11-3 at 16. Thus, Defendant avers, it exercised reasonable care when placing and
monitoring the rocking chairs.
Finally, Defendant argues that Plaintiff cannot prevail on a negligence action under La.
Civ. Code art. 2315. Defendant avers that while they had a duty to exercise reasonable care, that
duty did not extend to ensure the Plaintiff did not trip over an open and obvious chair leg. R.
Doc. 11-3 at 18.
b.

Plaintiff’s Response (R. Doc. 12)

Plaintiff argues that Defendant’s Motion must be denied because there are genuine
issues of material fact regarding whether the rocking chair created an unreasonable risk of harm,
whether the chair was an open and obvious condition, and whether Defendant acted reasonably
to prevent possible harm. R. Doc. 12 at 2. Plaintiff contends that she did not see the chair
because it was hidden behind a column, which demonstrates the condition was not open and
obvious. R. Doc. 12 at 2. Additionally, according to Plaintiff’s expert, the location of the chair
violated “several applicable codes and standards,” making the chair unreasonably dangerous. R.
Doc. 12 at 2. Plaintiff avers that by placing the rocking chair “around a turn and immediately

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behind a column with no warning signs,” Defendant created an unreasonable risk of harm. R.
Doc. 12 at 8. According to Plaintiff, this question is “is a disputed issue of mixed fact and law or
policy that is peculiarly a question for the jury or trier of the facts.” R. Doc. 12 at 8 (citing Reed
v. Wal-Mart Stores, Inc., 708 So.2d 362, 364 (La. 1998)). Thus, Plaintiff argues it is not an issue
that can be decided on summary judgment. R. Doc. 12 at 8-9. Further, Plaintiff cites numerous
cases where Louisiana courts have determined that obstacles which cause people to trip “often
pose an unreasonable risk of harm in premises liability cases.” R. Doc. 12 at 9. 1
Next, Plaintiff argues that these rocking chairs did not have any utility, because there
was already a row of chairs located against the building, and therefore the risk of harm they
created was unreasonable. R. Doc. 12 at 10. According to Plaintiff, the utility of displaying one
additional rocking chair—placed precariously behind a column, with its legs sticking out into the
walkway—is vastly outweighed by the very high likelihood that someone walking by will trip on
that chair. R. Doc. 12 at 10.
Additionally, Plaintiff argues that Cracker Barrel created or had notice of the condition
that caused the harm, and there are questions of material fact whether Defendant failed to
exercise reasonable care. R. Doc. 12 at 13-15. Plaintiff avers that because Defendant placed the
chair behind the column, it had notice of the hazardous condition. R. Doc. 12 at 14. Further,
Plaintiff argues that Defendant failed to exercise reasonable care because it did not have
requirements for placing the chairs, or requirements for checking to ensure no chair had been
moved to a dangerous location. R. Doc. 12 at 15.

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Plaintiff cites to Broussard v. State ex rel. Office of State Bldgs., 12-1238, pp. 22-23 (La. 5/4/13), 113 So.
3d 175, 191-92 (holding a shopping basket near a checkout counter created an unreasonable risk of harm); Cole v.
Brookshire Grocery Co., 08-1093, pp. 4-5 (La. App. 3d Cir. 03/04/09), 5 So. 3d 1010, 1013-14 (holding a carton of
water on the floor of a grocery store was a tripping hazard); Nelson v. Louisiana Stadium and Exposition Dist. 011764 (La. App. 4 Cir. 11/13/02), 832 So. 2d 1043 (holding metal box created unreasonable risk of harm because it
was placed in an area people were expected to walk).

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Finally, Plaintiff contends there are genuine issues of material fact as to whether
Defendant had a duty to protect its patrons from the risks presented by the rocking chair. R. Doc.
12 at 16. Plaintiff argues that whether the chair was open and obvious is a factual inquiry, and
Plaintiff’s testimony alone creates a disputed material fact. R. Doc. 12 at 16. Because there are
disputed material facts, Plaintiff contends that Defendant’s Motion for Summary Judgment must
be denied. R. Doc. 12 at 17.
c.

Defendant’s Reply (R. Doc. 18)

Defendants timely replies, and argues that Plaintiff relies on outdated case law. In
particular, Defendant explains “the Louisiana Supreme Court has clarified that summary
judgment can be granted . . . on the issue of whether a condition presents an unreasonable risk of
harm.” R. Doc. 18 at 1-2 (citing Bufkin v. Felipe's Louisiana, LLC, 14-0288 (La. 10/15/14), 171
So. 3d 851, 856 (“We note that our opinion in Broussard v. State ex rel. Office of State
Buildings, supra, should not be construed as precluding summary judgment when no legal duty
is owed because the condition encountered is obvious and apparent to all and not unreasonably
dangerous.”)).
Next, Defendant reiterates its argument that Plaintiff cannot demonstrate the chair was
unreasonably dangerous, and any speculative testimony to that point is insufficient to defeat
summary judgment. Defendant contends that according to Plaintiff’s own photographic evidence,
the rocking chairs were clearly visible. R. Doc. 18 at 3. Defendant argues that because Plaintiff
frequently visited this store, and had even sat in these chairs, she knew the chairs were on the
porch. R. Doc. 18 at 3-4. Additionally, Defendant contends the chairs were not unreasonably
dangerous because their utility, namely as a place to sit while waiting and a way to showcase
merchandise, outweighs any small risk of harm they may have presented. R. Doc. 18 at 4.

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Finally, Defendant argues that the testimony of Plaintiff and her paid consultant cannot
be used to defeat summary judgment. Defendant contends that the expert testimony is too
speculative to be used as evidence in this case, as the expert has no way of knowing whether
Plaintiff actually saw the rocking chair as she approached the porch. Further, Defendant avers
that the expert’s testimony demonstrates that Cracker Barrel exceeded the relevant safety
requirements. For example, the expert based his analysis on the required width of a walkway
with people sitting in rocking chairs; yet at the time of the accident, there was no one sitting in
the chairs. Thus, the aisle was only required to be 44 inches across, but was 54 inches across at
the time of the accident. R. Doc. 18 at 6. Likewise, Defendant contends that Plaintiff’s testimony
that she did not see the rocking chair is insufficient to defeat summary judgment, because it is
not Plaintiff, but a reasonably prudent person’s perspective that should be used to determine
whether the condition was open and obvious. R. Doc. 18 at 6.
III.

LAW AND ANALYSIS
a.

Summary Judgment Standard

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which the party will bear the burden of proof at trial.” Id. A
party moving for summary judgment bears the initial burden of demonstrating the basis for
summary judgment and identifying those portions of the record, discovery, and any affidavits

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supporting the conclusion that there is no genuine issue of material fact. Id. at 323. If the moving
party meets that burden, then the nonmoving party must use evidence cognizable under Rule 56
to demonstrate the existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996).
“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are
insufficient to defeat a motion for summary judgment. See Hopper v. Frank, 16 F.3d 92, 97 (5th
Cir. 1994); see also Anderson, 477 U.S. at 249-50. In ruling on a summary judgment motion,
however, a court may not resolve credibility issues or weigh evidence. See Int'l Shortstop, Inc. v.
Rally's Inc., 939 F.2d 1257, 1263 (5th Cir. 1991). Furthermore, a court must assess the evidence,
review the facts, and draw any appropriate inferences based on the evidence in the light most
favorable to the party opposing summary judgment. See Daniels v. City of Arlington, Tex., 246
F.3d 500, 502 (5th Cir. 2001); Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th
Cir. 1986).
b.

Analysis

Under Louisiana law, “[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.” La. R.S. § 9:2800.6. “In a negligence claim brought against a merchant . . . for
damages as a result of an injury . . . sustained because of a fall,” the plaintiff must prove, in
addition to elements of negligence, 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

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insufficient, alone, to prove failure to exercise reasonable care.
La. R.S. 9:2800.6(B). The Act further states that “ ‘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.” La. R.S. 9:2800.6(C).
In this case, the Court finds that Plaintiff has made a sufficient showing that the rocking
chair presented an unreasonable and reasonably foreseeable risk of harm to survive a motion for
summary judgment. Defendant argues that the chair was open and obvious, and was therefore not
unreasonable, however, at a minimum, this issue raises a question of material fact. Plaintiff
alleges she could not see the chair as she was walking up the pathway to the restaurant, because
the chair was somewhat hidden behind a column. An obstacle that “protrudes outward near
ground level is not—at least as a matter of law—an “open and obvious” hazard. Ray v. Stage
Stores, Inc., 640 F. App'x 322, 324–25 (5th Cir. 2016). 2
Further, factual issues exist with respect to whether or not the Defendant had actual
and/or constructive knowledge of the location of the chair and whether it failed to exercise
reasonable care in preventing the hazard. Defendant’s employees admit that the staff were
responsible for placing the chairs and were supposed to inspect the porch to ensure that
customers had not moved the chairs. A reasonable inference can be drawn that Defendant either
placed the chair behind the column, or it was there long enough that a routine inspection of the
porch would have revealed the hazard. See Ceasar v. Wal-Mart Stores, Inc., 00-1181 (La. App. 3
Cir. 6/6/01), 787 So.2d 582, 585 (“If a reasonable inference can be drawn from the
circumstantial evidence presented by the plaintiff that it was more probable than not the [hazard]

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While Defendant cites Bufkin v. Felipe's Louisiana to demonstrate that “summary judgment can be granted
. . . on the issue of whether a condition presents an unreasonable risk of harm,” that authority does not mandate that
summary judgment must be granted in such cases. R. Doc. 18 at 1-2 (citing Bufkin v. Felipe's Louisiana, LLC, 140288 (La. 10/15/14), 171 So. 3d 851, 856).

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existed for some period of time prior to the accident, the court can conclude the store had
constructive notice.”).
Finally, Plaintiff has presented sufficient evidence to survive summary judgment that
Defendant failed to exercise reasonable care in placing and monitoring the chairs. While
Defendant found it necessary to follow a “Planogram” for placing the first row of chairs on the
porch, there was no such plan for placing a second row of chairs. Similarly, there was no policy
regarding how often employees had to inspect the porch to ensure the chairs were not placed in a
hazardous manner, despite the fact that employees were aware customers moved the chairs.
Thus, viewing the facts in the light most favorable to the non-moving party, Plaintiff has
raised issues of material fact as to whether the chair’s location was unreasonably dangerous, and
created a foreseeable risk of harm. The Court finds that the Defendants either had actual or
constructive notice of the location of the chair. Finally, the Court finds Plaintiff has demonstrated
a factual question exists whether Defendants failed to exercise reasonable care by not having a
plan for placing the second row of chairs, or monitoring the location of the chairs to ensure
customers did not rearrange them in a hazardous manner.
IV.

CONCLUSION
Accordingly, IT IS ORDERED that the Defendant’s Motion for Summary Judgment, R.

Doc. 11, is DENIED.
New Olrenas, Louisiana, this 28th day of November, 2016.

HONORABLE ELDON E. FALLON
DISTRICT COURT JUDGE

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