Evidence Tagged Articles

In Hawkins v. Hi Nabor Supermarket, LLC, the First Circuit recently affirmed summary judgment in favor of Hi Nabor finding that Hi Nabor could not be liable to the plaintiff for injuries she allegedly sustained when she tripped and fell over a stocking cart while she was shopping in its store.^

The plaintiff claimed the stocking cart created an unreasonably dangerous condition that was foreseeable to the defendant. Hi Nabor filed a motion for summary judgment in response and attached affidavits of its employees, the store’s surveillance video of the incident, and excerpts of the plaintiff’s deposition.

The plaintiff failed to timely oppose Hi Nabor’s motion and then filed a motion for leave to file a late opposition. However, she did not attach or file any documents or exhibits in support of her opposition. The trial court granted Hi Nabor’s motion, and the plaintiff appealed the decision. On appeal, the plaintiff argued (1) summary judgment was granted “solely because an opposition was filed late” and (2) there was in sufficient proof that movers were entitled to judgment.

In response to the plaintiff’s first argument, the Court addressed the plaintiff’s failure to file an opposition to the defendants’ motion. See our prior blog for analysis of the impact of a party’s failure to timely oppose a motion for summary judgment here. The Court noted that a failure to timely oppose a motion for summary judgment does not automatically require that the motion be granted. However, if the mover meets its burden in its motion, and the plaintiff fails to file an opposition, the motion should be granted.

The court examined whether the defendant met its burden to support its motion in response to the plaintiff’s second argument. The Court found the defendant produced evidence to show that the stocking cart did not present an unreasonably dangerous condition such that liability could not attach.

The Court found that “stocking carts are necessary and useful in grocery stores to restock shelves, and that their common use and obviousness to a shopper make any risk slight.”* Further, surveillance video showed the size of the stocking cart (its’ tall sides were approximately the height of the plaintiff), the placement of caution cones around the stocking cart and the Plaintiff’s interactions with the cart prior to the accident.

In light of the evidence filed in support of its motion, the Court found Hi Nabor met its burden of proof to show that plaintiff could not establish the stocking cart presented an unreasonable risk of harm that was reasonably foreseeable. When the plaintiff failed to produce evidence to meet her burden of showing genuine issues of material fact regarding whether the cart presented an unreasonable risk of harm, summary judgment was properly granted. The Court’s decision highlights the importance of procedural requirements and reaffirms the principle that mere allegations of danger are insufficient and cannot defeat summary judgment without substantive proof.

References:

^Hawkins v. Hi Nabor Supermarket, LLC, 2023-0978 (La. App. 1 Cir. 2/23/24), 2024 WL 743080.

*Citing Russell v. Morgan’s Bestway of Louisiana, LLC, 47,914 (La. App. 2 Cir. 4/10/13), 113 So. 3d 448, 453.

Sometimes in law, the facts of a case may threaten to eclipse the legal issue. However, Louisiana law instructs the fact finder to see through the facts, and their sometimes tragic nature, and apply the law as written. As Aristotle once wisely said, “The Law is reason free from passion.”

In Kazan, et. al. v. Red Lion Hotels Corporation, et. al., 2021-CC-01820 (La. 6/29/22), the Louisiana Supreme Court recently ruled on a case with tragic facts, and its ruling provides an example of Aristotle’s description of law in action. In Kazan, a female patron was in the parking lot of a motel when a male patron approached her and used Kazan’s vehicle to abduct her from the premises. The car was later found submerged in a lake, and Kazan’s body was recovered from the water. The family filed a tort suit against several parties, including the motel’s owner and its insurer, the Great Lakes Insurance Company SE.

Great Lakes filed a motion for summary judgment and asked to be dismissed on grounds that coverage for the event was excluded from its policy. Specifically, the insurer argued that bodily injury caused by an “assault,” “battery,” or “physical altercation” was excluded under the policy’s terms. Great Lakes further argued that the kidnapping and ultimate death of the patron was excluded under the policy as bodily injury caused by an assault, battery, or physical altercation. The Louisiana Supreme Court agreed and reversed the decision of the trial and appellate courts.

Under Louisiana law, “[a]n insurance policy is a contract between the parties and should be construed using the general rules for the interpretation of contracts.” Id. at p. 3. “When the words of an insurance policy are clear and explicit and do not lead to absurd consequences, courts must enforce the language as written.” Id. at p. 3. “Courts lack authority to alter the terms of an insurance policy under the guise of interpretation and should not create an ambiguity where none exists.” Id. at p. 3.

With these basic rules in mind, the Court carefully reviewed the wording of the exclusion in the Great Lakes policy which stated as follows: “This insurance does not apply to ‘bodily injury,’ ‘property damage,’ or ‘personal advertising injury’ arising out of an ‘assault,’ ‘battery,’ or ‘physical altercation.’” “Physical altercation” was defined in the policy as “a dispute between individual [sic] in which one or more persons sustain bodily injury arising out of the dispute.” Citing Merriam-Webster’s dictionary, the Court defined the term “dispute” as “verbal controversy” or “quarrel.”

Based upon the evidence in the case, the Court found the female patron was involved in a “dispute” with her male attacker, and ultimately sustained bodily injury as a result of the dispute. Therefore, the patron was injured in a physical altercation, as defined under the specific terms of the Policy, and coverage for the event was excluded under the policy’s terms.

The Court noted as follows: “The facts of this case are undoubtedly tragic. Nonetheless, absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability by imposing reasonable conditions upon the policy obligations they contractually assume. That is what Great Lakes did in the insurance policy at issue here.” Despite the tragic facts presented in the case, in so holding, it appears the court agreed with Aristotle’s belief that the Law is Reason Free from Passion.