Tardo v. AutoZone Stores, Inc.
Filing
51
ORDER AND REASONS denying 37 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 9/15/2011. (caa, )
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 DENIED.
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 a few 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.
AutoZone employee Matt Fahm was assigned the installation task; he
picked up his tools and, according to Ms. Tardo, when she asked
1
whether they were going to walk on the sidewalk on Airline Highway,
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 injuries she sustained were caused by AutoZone’s
negligence as a result of its failure to maintain the premises,
2
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 previously sought summary
relief on her negligence claims, asserting that she could not meet
her burden of proving premises liability or merchant liability.
The plaintiff has conceded that AutoZone was not liable for
premises or merchant liability, and instead insisted that she was
pursuing
only
Accordingly,
a
the
general
Court
negligence
construed
theory
AutoZone’s
of
prior
recovery.
motion
for
summary judgment as one for partial summary judgment, and granted
the motion.
AutoZone now seeks summary relief on the ground that
Ms. Tardo cannot meet her burden of proving general negligence.
I. Standard for Summary Judgment
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute 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
3
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
motion.
See
id.
Therefore,
"[i]f
the
evidence
is
merely
colorable, or is not significantly probative," summary judgment is
Id. at 249-50 (citations omitted).
appropriate.
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
Anderson, 477 U.S. at 255.
4
to
the
non-moving
party.
II.
AutoZone contends that summary relief is appropriate because
the plaintiff cannot prove that Matt Fahm was negligent pursuant to
Louisiana
Civil
Code
article
2315.1
In
particular,
AutoZone
contends that the plaintiff cannot prove that Fahm created an
unreasonable risk of harm by instructing her to follow him through
the shortcut, or that he had a duty to warn Ms. Tardo of the
physical requirements of using the shortcut.
A.
La. C.C. art. 2315 provides: “Every act whatever of man that
causes damage to another obliges him by whose fault it happened to
repair
it.”
In
other
words,
in
negligence
cases,
where
circumstances create a duty to do so, the defendant must use
reasonable care so as to avoid injuring another person.
Louisiana
courts have adopted a duty-risk analysis in determining whether to
impose liability under the general negligence principles of La.
1
The Court is not inclined to consider AutoZone’s
argument that the plaintiff’s general negligence or vicarious
liability theories of recovery should be dismissed because such
claims were not mentioned in the state court petition and,
therefore, AutoZone was not given fair notice. The Court need not
consider what the plaintiff should have pled in her state court
petition when the defendant failed to challenge the sufficiency of
the petition; these proceedings have developed past the motion to
dismiss stage.
Nor is the Court inclined to consider the
plaintiff’s argument that the defendant’s second motion for summary
judgment is untimely; the Court already granted leave to the
defendant to file the present motion in light of counsel for
defendant’s good faith (if mistaken) belief that the plaintiff was
pursuing a merchant liability or premises liability theory of
recovery.
5
C.C. art. 2315.
To recover, Ms. Tardo must prove that (1) Fahm
had a duty to conform his conduct to a specific standard (the duty
element); (2) Fahm’s conduct failed to conform to the appropriate
standard (the breach element); (3) Fahm’s substandard conduct was
a cause-in-fact of her injuries (the cause-in-fact element); (4)
Fahm’s substandard conduct was a legal cause of her injuries (the
scope of protection element); and (5) she suffered damages (the
damages element).
See Bridgefield Cas. Ins. Co. v. J.E.S., Inc.,
29 So.3d 570, 573 (La.App. 1 Cir. 10/23/09)(citations omitted).
“[A]ll four inquiries must be affirmatively answered for plaintiff
to recover.”
Jiminez v. Omni Royal Orleans Hotel, 66 So.3d 528,
532 (La.App. 4 Cir. 5/18/11)(citation omitted). “Whether a duty is
owed is a question of law; whether defendant has breached a duty is
a question of fact.” Brewer v. J.B. Hunt Transport, Inc., 35 So.3d
230, 240 (La. 2010).
Another fact-drive inquiry typically left to
the fact-finder is whether an action is the cause-in-fact of harm.
Bridgefield Cas. Ins. Co., 29 So.3d at 574-75.
Of course the key
to any negligence inquiry “is whether a person, thing, or condition
creates or constitutes an unreasonable risk of harm.”
So.3d at 532 (citation omitted).
Jiminez, 66
This is a fact-intensive inquiry
that is “primarily entrusted to the fact-finder.”
Id. (citations
omitted).
B.
The plaintiff contends that Fahm created an unreasonably
6
dangerous situation when he instructed her to follow him through a
shortcut to return to her car to replace its battery.
This is so,
the plaintiff insists, because Fahm was aware that the plaintiff is
a 5'2" female, who is morbidly obese, and that Fahm failed even to
warn her that to follow him down through the sloped lawn required
her to jump off the retainer wall into the parking lot.
In support
of her claim of negligence, Ms. Tardo says that the defendant’s own
expert concluded that the shortcut was not intended to be used as
an exit from AutoZone’s property.
Moreover, the plaintiff invokes
the opinion of her own expert to support her theory of recovery:
the plaintiff’s expert has stated that the 12-inch step down from
the retainer wall “created an extremely dangerous trip/stumble and
fall hazard/unreasonable risk of harm to a pedestrian.”
The
accident would not have occurred, Ms. Tardo suggests, if Fahm had
instead used the sidewalk.
analysis
is
so
Because this particular negligence
fact-driven,
along
with
considering
issues
associated with comparative fault, the plaintiff urges the Court
that summary judgment is inappropriate.
The Court finds that AutoZone has not carried its summary
judgment burden to show that there are no disputed issues of
material fact regarding the plaintiff’s negligence claim.2
2
While
AutoZone emphasizes the openness and obviousness of the
retainer wall. Indeed, the thrust of the defendant’s arguments
seem to focus more attention on the issue of Ms. Tardo’s fault;
however, even assuming Ms. Tardo’s negligence contributed to her
injury, it does not follow that AutoZone was lacking in fault.
7
the plaintiff will bear the burden of proof at trial, she has
raised
a
factual
dispute
as
to
whether
Fahm
(and
therefore
AutoZone) was negligent when he led her through a “shortcut” (which
was
not
intended
for
use
as
an
exit)
that
culminated
in
requirement that she step down from a 12-foot retainer wall.
a
Of
course, “a potentially dangerous condition that should be obvious
to all comers is not, in all instances, unreasonably dangerous.”
Socorro v. City of New Orleans, 579 So.2d 931, 941 (La. 1991).
But
inquiries into fault (in particular, here, whether a thing creates
an unreasonable risk of harm) and causation are so fact-driven
that, on this record, it must be reserved to the fact-finder.
AutoZone has not demonstrated that it is entitled to judgment as a
matter of law.
Accordingly, the defendant’s motion for summary judgment is
DENIED.
New Orleans, Louisiana, September 15, 2011
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
(The openness and obviousness of a potentially dangerous thing are
simply factors to be considered in the duty-risk analysis.)
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