Donna Cates v. Dillard Dept Stores, Inc., et al

Filing

PUBLISHED OPINION FILED. [09-31193 Vacated and Remanded] Judge: EGJ , Judge: HRD , Judge: JLD. Mandate pull date is 11/12/2010 [09-31193]

Donna Cates v. Dillard Dept Stores, Inc., et al

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Case: 09-31193 Document: 00511270855 Page: 1 Date Filed: 10/21/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 21, 2010 N o . 09-31193 Lyle W. Cayce Clerk

D O N N A L. CATES P la in t iff - Appellant v. D I L L A R D DEPARTMENT STORES, INC.; ABC INSURANCE COMPANY D e fe n d a n t s - Appellees

A p p e a l from the United States District Court fo r the Middle District of Louisiana

B e fo r e JOLLY, DeMOSS, and DENNIS, Circuit Judges. E. GRADY JOLLY, Circuit Judge: D o n n a Cates ("Cates") sued Dillard Department Stores, Inc. ("Dillard") in L o u is ia n a state court after she slipped and fell in a Dillard store, alleging that h e r fall was caused by a plastic "wet floor" sign that an employee had negligently le ft in a high-traffic area of the store. After removal, the district court granted s u m m a r y judgment to Dillard, which Cates appeals. Because there is a genuine is s u e of material fact as to whether Dillard created an unreasonable risk of harm a n d whether it failed to exercise reasonable care, we vacate the district court's ju d g m e n t and remand for proceedings not inconsistent with this opinion.

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Case: 09-31193 Document: 00511270855 Page: 2 Date Filed: 10/21/2010 No. 09-31193 I. On December 22, 2006, Donna Cates and her mother were walking t h r o u g h the cosmetics area of a Dillard department store when Cates fell, a lle g e d ly because she stepped on a "wet floor" sign that had fallen over and was l y i n g flat in the aisle. The store's maintenance employee, Robert Williams, t e s t ifie d that he could not recall when the sign had been left in the area. W illia m s testified that his normal procedure, three or four days a week, w a s to mop the floor before the store opened, placing wet floor signs near the a r e a s he had mopped, and that he always tried to gather the signs (after c h e c k in g that the floor had dried) before the store opened for the day. He also t e s t ifie d that he probably would not have had time to wet-mop on the morning in question because the store opened early for Christmas shopping (two hours b e fo r e the accident); as such, it was possible the sign had been left from the day b e fo r e . He testified that it is also possible the sign was left up from a spot-mop (i.e ., mopping up a spill), which could have occurred at any time. Witnesses t e s t ifie d that the store was especially crowded on the day of the accident because o f the holiday season, that the cosmetics section was the busiest part of the s t o r e , and that there were extra display cases in the cosmetics section that p a r tia lly blocked the main aisles. Cates sued in Louisiana state court. After removal, the district court g r a n t e d summary judgment to Dillard, which Cates timely appealed. II. W e are asked to decide whether the district court properly granted s u m m a r y judgment to Dillard on Cates's premises liability claim. A grant of s u m m a r y judgment is reviewed de novo. Bagley v. Albertsons, Inc., 492 F.3d 328, 3 3 0 (5th Cir. 2007). Summary judgment is proper "if the pleadings, the

d is c o v e r y and disclosure materials on file, and any affidavits show that there is n o genuine issue as to any material fact and that the movant is entitled to 2

Case: 09-31193 Document: 00511270855 Page: 3 Date Filed: 10/21/2010 No. 09-31193 ju d g m e n t as a matter of law." FED. R. CIV. P. 56(c)(2). We resolve doubts and d r a w reasonable inferences in favor of the nonmovant, Cates. Langhoff Props. L L C v. BP Prods. N.A., Inc., 519 F.3d 256, 260 (5th Cir. 2008). Under this s t a n d a r d , we conclude that a genuine issue of material fact exists as to whether t h e wet floor sign in question presented an unreasonable risk of harm and w h e t h e r Dillard exercised reasonable care. T h is dispute is governed by Louisiana's premises liability statute, which p r o v id e s that a claimant must prove (1) the condition that caused the injury c r e a t e d an unreasonable risk of harm, (2) the merchant created or had c o n s t r u c t iv e notice of the condition, and (3) the merchant failed to exercise r e a s o n a b le care. LA. REV. STAT. ANN. § 9:2800.6 (2009).*

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The statute provides in relevant part that: A. 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. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage. B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, 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 insufficient, alone, to prove failure to exercise reasonable care. C. Definitions:

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Case: 09-31193 Document: 00511270855 Page: 4 Date Filed: 10/21/2010 No. 09-31193 B e g in n in g with the second element, Cates clearly has not produced s u ffic ie n t evidence to show that Dillard had actual or constructive notice of a c o l l a p s e d wet floor sign. Under Louisiana law, constructive notice requires a s h o w in g that the dangerous condition existed for "some time period" prior to the fa ll. White v. Wal-Mart Stores, Inc., 97-0393 (La. 9/9/97); 699 So. 2d 1081, 1084. Cates submitted no evidence as to the length of time that the sign had been c o lla p se d . However, Cates further argues that the upright wet floor sign

p r e s e n t e d an unreasonable risk of harm. Because a Dillard employee placed the s ig n on the floor and thus created the condition at issue, Cates met her burden o n the element of notice. See Ruby v. Jaeger, 1999-1235, p. 4 (La. App. 4 Cir. 3 /2 2 /0 0 ); 759 So. 2d 905, 907, writ denied, 2000-1396 (La. 6/30/01); 766 So. 2d 542. W e next address whether an upright wet floor sign may present an u n r e a s o n a b le risk of harm. Under Louisiana law, the relevant hazardous

c o n d itio n can be something other than the actual item that directly caused the p la i n t i f f to fall. See, e.g., Cole v. Brookshire Grocery Co., 2008-1093, p. 5 (La. A p p . 3 Cir. 3/4/09); 5 So. 3d 1010, 1014, writ denied, 2009-0728 (La. 5/15/09); 8 S o . 3d 589; Franovich v. K-Mart Corp., 94-1039, p. 6­8 (La. App. 5 Cir. 3/28/95); 6 5 3 So. 2d 695, 698. Other courts have held that a genuine issue of fact exists a s to whether a standing wet floor sign is a hazard when placed in heavily t r a ffic k e d areas of a merchant's premises, particularly during times when it is k n o w n that the area will be crowded. See Am. Multi-Cinema, Inc. v. Brown, 679
(1) "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. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition. LA . REV. STAT. ANN. § 9:2800.6 (2009).

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Case: 09-31193 Document: 00511270855 Page: 5 Date Filed: 10/21/2010 No. 09-31193 S .E .2 d 25, 29­30 (Ga. 2009); Luthy v. Denny's, Inc., 782 S.W.2d 661, 663 (Mo. Ct. A p p . 1989). Cates presented deposition testimony that Dillard employees knew t h e cosmetics section of the store would be especially crowded on the day of her in ju r y . Mr. Williams testified that the area "swamps" during the holiday season. There was also testimony that multiple display cases made the walkways n a r r o w ; that a person approaching the location of the fallen sign from at least o n e direction would not be able to see the sign even when it was upright; that w e t floor signs can become tripping hazards when improperly placed; and that it was foreseeable based on the sign's location that it would be contacted and c o lla p s e . In view of this testimony, we conclude that Cates presented a genuine is s u e of fact as to whether the upright wet floor sign presented an unreasonable r is k of harm and whether the risk of harm was reasonably foreseeable. F o r similar reasons, we are persuaded that there exists a genuine issue of fa c t as to whether Dillard exercised reasonable care. If, as Cates alleges, the s t o r e lacked a uniform cleanup or safety procedure, that alone is insufficient to p r o v e Dillard's failure to exercise reasonable care. LA. REV. STAT. ANN.

§ 9:2800.6(B)(3) (2009). However, Cates presented further evidence concerning t h e congestion in the cosmetics area on the day of the accident, the extra display c a s e s placed along the aisles, and the amount of time that the sign likely had b e e n standing in the cosmetics area. This evidence was sufficient to raise triable is s u e s of fact. III. W e emphatically do not hold that a merchant breaches its duty of care by p la c in g notice of slippery floor conditions on a floor that is slippery. But in this c a s e the evidence was sufficient for a reasonable jury to infer that a "wet floor" s ig n had been left standing long after the floor had dried in an area known to be h e a v ily congested, that this condition presented an unreasonable risk of harm, a n d that Dillard failed to exercise reasonable care. The judgment of the district 5

Case: 09-31193 Document: 00511270855 Page: 6 Date Filed: 10/21/2010 No. 09-31193 c o u r t is VACATED, and the case is REMANDED for proceedings not in c o n s is t e n t with this opinion. V A C A T E D and REMANDED.

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