Tardo v. AutoZone Stores, Inc.
Filing
31
ORDER AND REASONS that the defendant's 18 Motion for Summary Judgment is construed as a partial motion for summary judgment andis GRANTED consistent with this Order and Reasons.Signed by Judge Martin L.C. Feldman on 8/23/11. (tsf, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SYLVIA TARDO
CIVIL ACTION
v.
NO. 10-3642
AUTOZONE STORES, INC.
a/k/a AUTO ZONE
SECTION "F"
ORDER AND REASONS
Before
Judgment.
the
Court
is
the
defendant’s
Motion
for
Summary
For the reasons that follow, the motion is construed as
a motion for partial summary judgment and is GRANTED.
Background
This is a personal injury case in which the plaintiff alleges
that she sustained serious injuries to her left leg when she fell
while following an AutoZone employee to her car so he could install
a battery for her.
On the afternoon of April 17, 2010 Sylvia Tardo stopped at a
Chevron station on the corner of Cleary Avenue and Airline Highway
in Jefferson Parish, Louisiana. After buying a soft drink, her car
would not start. Having visited AutoZone about three times before,
Ms. Tardo walked to AutoZone at 3949 Airline Highway; to get there
she walked on the sidewalk by the highway, passing Enterprise and
another business establishment on her way. She purchased a new car
battery, and asked whether an employee could install it for her.
Matt Fahm was assigned the installation task; he picked up his
tools and, according to Ms. Tardo, when she asked whether they were
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going to walk on the sidewalk on Airline, he said “No, I know a
shortcut.
Just follow me.”
And she did.
Mr. Fahm walked ahead of Ms. Tardo; he led her to the side of
the AutoZone store.
When they reached a section of grass, Fahm
told her that they would be walking on the grass.
Where the grassy
area meets the concrete Enterprise business parking lot, there is
a concrete retaining wall, which is approximately one foot above
the parking lot. (The retaining “wall” serves as a barrier between
the AutoZone parking lot and the Enterprise parking lot.)
Ms.
Tardo has stated that she stopped when she arrived at the retaining
wall
before
she
stepped
Enterprise parking lot.
down
onto
the
flat
surface
I misjudged.
the
She further stated: “I stepped down and I
must have misjudged my distance and I stumbled.
stumbled and fell.”
of
I lost my – I
However, she later testified: “I don’t think
I think when I stepped down, I lost my balance when
I stepped down.”
She also admitted that she did not know what
caused her to fall; she said that there was not anything in the
grassy area that caused her to lose her balance, and that there was
not anything about the cement retaining wall or the flat surface of
the Enterprise parking lot that caused her to fall.
As a result of
the fall, she injured her left leg.
On September 1, 2010 Ms. Tardo sued AutoZone in state court,
asserting that the “serious and permanent injuries” she sustained
were caused by AutoZone’s negligence as a result of its failure to
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maintain the premises, failure to warn their guest of known
dangerous conditions, failure to adequately inspect the property or
premises, placing their guests in a perilous situation by lack of
warning,
repair,
or
maintenance,
creating
a
known
hazardous
condition, creating a condition or situation that presented an
unreasonable risk of harm that AutoZone should have foreseen, and
other unspecified acts of negligence.
AutoZone was served on
September 16 and, on October 15, 2010, timely removed the suit to
this Court, invoking the Court’s diversity jurisdiction.
AutoZone
now seeks summary relief on the ground that Ms. Tardo cannot meet
her burden of proving merchant liability or premises liability.
I. Standard for Summary Judgment
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., 475 U.S. 574, 586 (1986).
A genuine issue of
fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
3
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.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
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).
Rather, he 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.
AutoZone contends that summary relief is appropriate because
the plaintiff can submit no evidence to support her claim that the
allegedly defective retaining wall created an unreasonable risk of
harm.
Based on the theories of recovery alleged in Ms. Tardo’s
state court petition, AutoZone draws attention to the negligence
standards provided by La.R.S. 9:2800.6 (the merchant liability
statute) and Louisiana Civil Code 2317.1 (premises liability). Ms.
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Tardo opposes AutoZone’s motion for summary judgment; she concedes
that AutoZone is not liable under either the merchant liability
statute or the premises liability provision.
However, Ms. Tardo
contends that AutoZone is liable for its general negligence.
See
La. Civil Code article 2315. Her theory is based on AutoZone’s
employee’s allegedly improper use of a shortcut to exit AutoZone’s
property.
She says she objects to any attempt by AutoZone to have
her general negligence claim dismissed.
Article 9:2800.6 of the Louisiana Revised Statutes establishes
the plaintiff’s burden of proof for slip-and-fall claims against
merchants:
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)
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.
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(3)
C.
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.
...
(Emphasis added).
The provision for premises liability, La.Civ.Code art. 2317.1,
provides:
The owner or custodian of a thing is answerable for
damage occasioned by its ruin, vice, or defect, only upon
a showing that he knew or, in the exercise of reasonable
care, should have known, of the ruin, vice, or defect
which caused the damage, that the damage could have been
prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care. Nothing in this
Article shall preclude the court from the application of
the doctrine of res ipsa loquitur in an appropriate case.
In her opposition papers, the plaintiff concedes that (1) “there
was no La. C.C. art. 2317 ruin, vice, or defect in the defendant’s
property/thing”; (2) “her claim is not based on the typical R.S.
9:2800.6 ‘condition’ such as a slip and fall due to water, produce
spilled drinks, etc.”; and (3) “her fall was not due to ‘...a
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condition existing in or on merchant’s premises’ as intended by
R.S. 9:2800.6.”
Based on the plaintiff’s concessions and the
record,
relief
summary
on
these
theories
of
liability
is
appropriate.
Nevertheless, the plaintiff maintains that the legal standard
for her claim of general negligence under La.C.C. art. 2315 is
based on an improper use (or failure to warn) of a shortcut; that
is not addressed by the defendant in its moving papers.
However,
as the defendant points out in its reply papers, the general
negligence theory was not addressed because it appeared from the
plaintiff’s state court petition that Ms. Tardo was pursuing
merchant liability or premises liability theories of recovery.1
Whether plaintiff’s claim has any basis in fact or law must await
another day, as must the issue of comparative fault.
IT
IS
ORDERED:
that
the
defendant’s
motion
for
summary
judgment is construed as a partial motion for summary judgment and
is GRANTED consistent with this Order and Reasons.
New Orleans, Louisiana, August 23, 2011
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
1
The defendant notes that the plaintiff did not in her
state court petition allege that her claim against AutoZone arose
out of vicarious liability for the La. Civ. Code art. 2315
negligence of Fahm.
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