Taylor v. Wal-Mart Stores, Inc. et al
Filing
46
ORDER & REASONS granting 15 Motion for Summary Judgment; denying as moot 20 Motion for Partial Summary Judgment; denying 22 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 8/8/11. (mm, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LISA TAYLOR
CIVIL ACTION
VERSUS
NO. 10-1503
WAL-MART STORES, INC., ET AL
SECTION “F”
ORDER & REASONS
Before the Court are cross-motions for summary judgment and
Wal-Mart’s motion for partial summary judgment on lost future
wages.
For the following reasons, Wal-Mart’s cross-motion is
GRANTED.
The plaintiff’s cross-motion and Wal-Mart’s motion for
partial summary judgment are both DENIED.1
Background
This case follows a slip and fall at a Wal-Mart in New
Orleans, Louisiana.
Lisa Taylor claims that as she put her
purchases in her shopping cart, she slipped on a wet substance on
the store’s floor and injured her knees, arms, neck, back, and
legs.
She seeks damages for her injuries, as well as lost wages
and lost earning capacity.
Wal-Mart disputes its liability.
The following facts are not contested:2
1
Wal-Mart’s motion for partial summary judgment is
moot.
2
Because the plaintiff did not file a statement of
contested facts with her opposition to Wal-Mart’s motion for
summary judgment, all facts that Wal-Mart identified as uncontested
are deemed not in dispute.
See LR 56.2 (“Any opposition to a
motion for summary judgment must include a separate and concise
statement of the material facts which the opponent contends present
1
•
On April 19, 2009, plaintiff claims she fell due to a wet
substance on the floor.
•
Plaintiff further claims that due to the direct and
proximate result of the negligence of Wal-Mart, she
sustained serious injuries to her knees, arms, head,
neck, back, and legs.
•
Plaintiff testified in her deposition that she slipped
and fell while walking behind the baggage carousel in the
checkout area of the store.
•
Plaintiff did not see a clear liquid on the floor, and no
one suggested there was something on the floor that might
cause her to slip.
•
Plaintiff noticed no track marks or buggy marks through
the area in which she slipped.
•
Plaintiff possesses no information as to how long the
substance was allegedly present on the floor prior to her
fall.
•
Plaintiff possesses no information to suggest that a WalMart employee caused the liquid to be on the floor or
that a Wal-Mart employee knew the liquid was present on
the floor.
•
Plaintiff possesses a surveillance video showing
approximately one hour and one minute of footage prior to
her fall depicting the area where she fell.
The plaintiff relies on a surveillance video which captures an
hour of footage leading up to her eventual tumble.3
What the
viewer sees is a steady stream of shoppers flowing through WalMart’s check-out stations over the course of an hour.
Cashiers
a genuine issue.
All material facts in the moving party’s
statement will be deemed admitted, for purposes of the motion,
unless controverted in the opponent’s statement.”).
3
The plaintiff does not show that this video is
admissible; Wal-Mart, however, has not moved to strike it from her
motion.
2
take money and bag purchases; shoppers place the bags into their
carts and depart.
A number of carts glide without incident over
the area at which the plaintiff eventually falls.
It does not
appear that anyone, either Wal-Mart employee or shopper, looks to
the area where the wet substance was alleged to be present, and no
other people appear to slip when walking briskly over the area. No
wet substance is visible at any time.
(The view from the camera of
the substance’s supposed location apparently is obscured by the
column of a check-out station.)
The plaintiff emphasizes that at
no time, no one comes to inspect the area for possible spills,
including employees standing only feet away.
The plaintiff and Wal-Mart each move for summary judgment.
Wal-Mart also moves for partial summary judgment on plaintiff’s
claim for lost future wages and loss of earning capacity.
Law & Analysis
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine issue of fact exists if
the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.
See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A genuine issue
of fact exists only "if the evidence is such that a reasonable jury
3
could return a verdict for the non-moving party."
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that mere argued existence of a factual
dispute does not defeat an otherwise properly supported motion.
See id.
Therefore, "[i]f the evidence is merely colorable, or is
not significantly probative," summary judgment is appropriate. Id.
at 249-50 (citations omitted).
Summary judgment is also proper if
the party opposing the motion fails to establish an essential
element of his case.
322-23 (1986).
See Celotex Corp. v. Catrett, 477 U.S. 317,
In this regard, the non-moving party must do more
than simply deny the allegations raised by the moving party.
See
Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649
(5th Cir. 1992).
He instead must come forward with competent
evidence, such as affidavits or depositions, to buttress his
claims. Id. Hearsay evidence and unsworn documents do not qualify
as competent opposing evidence.
Martin v. John W. Stone Oil
Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).
Finally, in
evaluating the summary judgment motion, the Court must read the
facts
in
the
light
most
favorable
to
the
non-moving
party.
Anderson, 477 U.S. at 255.
II.
Article 9:2800.6 of the Louisiana Revised Statutes establishes
the plaintiff’s burden of proof in slip-and-fall claims against
merchants like Wal-Mart:
4
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)
(2)
(3)
C.
The
condition
presented
an
unreasonable risk of harm to the
claimant and that risk of harm was
reasonably foreseeable.
The merchant either created or had
actual or constructive notice of the
condition which caused the damage,
prior to the occurrence.
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
exercise
of
reasonable care.
Definitions
(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.
...
5
(Emphasis added).
Here the parties dispute the element of notice. In that vein,
the Louisiana Supreme Court has interpreted this very direct
statute to require the plaintiff to prove the existence of the
condition or hazard for some period of time before the fall.
See
White v. Wal-Mart Stores, Inc., 699 So.2d 1081 (La. 1997); see also
Courville v. Target Corp. of Minn., 232 F. App’x 389, 391-92 (5th
Cir. 2007).
If the plaintiff fails to prove that the condition
existed for some time before the fall, “[t]he statute does not
allow for the inference of constructive notice.”
So.2d at 1084.
See White, 699
“Though the time period need not be specific in
minutes or hours,” the Louisiana Supreme Court has instructed, the
requirement that “the claimant prove the condition existed for some
time period prior to the fall” imposes a clear and unequivocal
temporal element. Id. at 1084-85. This temporal component—whether
the time period is lengthy enough that a merchant, exercising
reasonable care, would have or should have discovered the hazard
alleged, the wet substance—is a question of fact, which the
plaintiff must prove.
See id. at 1084.
To meet her burden, the plaintiff must make a “positive
showing of the existence of the condition” for some time period
“prior to the fall.”
Leger v. Wal-Mart La. LLC, 343 F. App’x 953,
954 (5th Cir. 2009); see Babin v. Winn-Dixie La., Inc., 764 So.2d
37, 40 (La. 2000).
“‘Mere speculation or suggestion’ is not
6
sufficient
to
meet
this
burden,
and
courts
will
not
infer
constructive notice for the purposes of summary judgment where the
plaintiff’s
allegations
are
‘no
more
likely
than
any
other
potential scenario.’” Bagley v. Albertson’s, Inc., 492 F.3d 328,
330 (5th Cir. 2007) (quoting Allen v. Wal-Mart Stores, Inc., 850
So.2d 895, 898-99 (La. App. 2d Cir. 2003)).
III.
In question is whether the wet substance persisted on the
store
floor
constructive
for
some
notice.4
period
of
Invoking
time
the
sufficient
statutory
to
support
definition
of
constructive notice, Wal-Mart insists that the plaintiff cannot
prove that the condition existed for such a period of time that it
would have been discovered had Wal-Mart exercised reasonable care.
See LA. REV. STAT. ANN. art. 9:2800.6C(1).
In making this assertion,
Wal-Mart relies on the plaintiff’s deposition testimony that she
did not know how long the substance was on the floor before she
slipped on it and asserts that no other evidence shows otherwise.
The plaintiff responds that the video recording, taken over
the
hour
before
she
slipped
on
the
wet
substance
and
fell,
conclusively shows that a wet substance existed on the floor for an
hour without any Wal-Mart employee making efforts to clean it up.
4
The parties only cursorily address the question of
actual notice.
There is an absence of facts in the summary
judgment record to suggest, let alone establish, that Wal-Mart had
actual notice of the wet substance on the floor.
7
She attempts to draw the inference that because no spill is clearly
created during this time, it must have been in place before the
start of the video recording, more than an hour before her fall.
But in making this argument, she improperly attempts to shift the
burden to Wal-Mart.
But “the statute provides for no such shift.”
White, 699 So.2d at 1085.
The video merely shows the passage of time and lacks any
visual evidence of a wet substance on the floor.
The video does
not show someone or something creating the wet substance; it does
not show others slipping or avoiding the area; it shows no one
making a failed attempt to clean or secure the area.
To conclude
what the plaintiff asks would require this Court to draw a series
of impermissible inferences unsupported by this summary judgment
record.5
“Such speculation falls short of the factual support
required to establish that plaintiff will be able to satisfy h[er]
evidentiary burden of proof at trial.”
5
Babin, 764 So.2d at 40.
Even though “[t]he Court may consider circumstantial
evidence when determining whether the temporal element of the
statute is satisfied,” here the circumstantial evidence the
plaintiff presents does not “rationally point[] to the possibility
that the hazard existed for some time before the plaintiff
encountered it.” Zachary v. Macy’s Retail Holdings, Inc., No. 09868, 2010 WL 2267522, at *3 (M.D. La. Jun. 2, 2010) (Feldman, J.).
Compare Mouy v. Sam’s Wholesale, Inc., No. 2010 CA 2295, 2011 WL
2981117, at *2 (La. App. 1 Cir. Jun. 10, 2011) (finding that where
a surveillance video was inconclusive as to whether a spill
occurred in its time frame, grant of store’s summary judgment was
not improper) with Nelson v. Southeast Food, Inc., 892 So.2d 790,
797-98 (La. App. Cir. 2005) (finding that where a surveillance
video conclusively showed liquid was on the floor for more than
twenty-four minutes, it supported constructive notice).
8
Plaintiff’s assertions, quite simply, fail to rise to the requisite
“positive showing of the existence of the [wet substance]” to
support her claims.
See Leger, 343 F. App’x at 954.
Because the plaintiff is not able to establish an essential
element of her claim as required by Louisiana, Wal-Mart is entitled
to judgment as a matter of law.6
See Celotex, 477 U.S. at 322-23
(showing that the defendant’s entitlement to relief on summary
judgment can be accomplished by showing a complete absence of
record evidence to support a mandatory, element of the plaintiff’s
claim).
The local law of merchant-liability demands more for
plaintiff to be able to withstand a claim for summary relief.
Accordingly, the defendant’s motion for summary judgment is
hereby GRANTED, and the plaintiff’s is DENIED.
IT IS FURTHER ORDERED: Wal-Mart’s motion for partial summary
judgment on future wage issues is DENIED as moot.
6
The plaintiff also seeks to avoid dismissal,
notwithstanding the absence of a positive showing that the store
had constructive notice of the wet substance on the floor, by
insisting that summary judgment is premature because limited
depositions have yet to be taken. However, Rule 56(f) continuances
are not granted unless the nonmoving party shows how the additional
discovery will defeat the summary judgment motion. Moreover, the
proper way of requesting additional time for discovery pursuant to
Rule 56(f) is showing by affidavit why facts cannot be presented to
defeat the summary judgment motion.
See FED. R. CIV. P. 56(f).
Furthermore, the plaintiff has failed to show, beyond vague
assertions, how the additional discovery will create a genuine
dispute as to a material fact. The plaintiff claimed at one time
that scheduled depositions could counsel against summary judgment,
but, since those depositions took place on July 20, 2011, she has
not briefed this Court on whether those depositions did indeed
raise any factual issues that would save her claims from dismissal.
9
New Orleans, Louisiana, August 8, 2011.
____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?