Ferrant v. Lowe's Home Centers, Inc.
Filing
27
ORDER AND REASON granting 17 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 10/11/2011. (tsf, ) Modified on 10/12/2011 (caa, ).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LYNN G. FERRANT
CIVIL ACTION
v.
NO. 10-4370
LOWE’S HOME CENTERS, INC.
SECTION "F"
ORDER AND REASONS
Before the Court is Lowe’s Home Centers, Inc.’s Motion for
Summary Judgment.
For the reasons that follow, the motion is
GRANTED.
Background
This is a personal injury case arising out of a trip and fall
accident that occurred on November 28, 2009 at Lowe’s Home Centers,
Inc. in Hammond, Louisiana.
While shopping for light bulbs at the hardware store with her
friend George Crader who was following behind her, Lynn Ferrant
tripped and fell next to a pallet stacked with light bulbs, which
was across from the light bulb display shelves.1
Ms. Ferrant
alleges that she tripped over a board protruding from a merchandise
pallet, and that she injured her right shoulder, knee, arm, and
1
Ms. Ferrant contends that she was walking on the light
bulb aisle in a “narrow area” between a pallet holding light bulbs
and the light bulb aisle shelves, which space was also occupied by
a couple examining light bulbs on the shelves, causing her to walk
in close proximity to a light bulb pallet.
1
cervical spine.2
After Ms. Ferrant fell, Lowe’s personnel helped
her and inspected the area, including taking photographs of the
light bulb pallet; they also completed an incident report.3
On October 18, 2010 Lynn Ferrant sued Lowe’s in state court,
asserting that Lowe’s negligence caused her injuries, which require
surgery.
On November 19, 2010 Lowe’s removed the suit to this
Court, invoking this Court’s diversity jurisdiction. Lowe’s now
seeks summary judgment, on the ground that Ms. Ferrant cannot prove
all of the essential elements of her claim under the Louisiana
2
Ms. Ferrant has testified that she never actually saw
the allegedly broken protruding board either before or after the
accident. Mr. Crader has testified that he was walking behind Ms.
Ferrant at the time and did not see her trip and fall; rather,
after noticing that she was laying on the ground, Mr. Crader
testified that he looked at the nearby display pallet and saw a
piece of board protruding from it so he assumed that had made her
fall because “It was the only thing that could have made her fall.”
Upon noticing the protruding board, Mr. Crader testified that he
pushed the board back into place; he also testified that he does
not believe that he told the Lowe’s employees that the pallet was
broken.
3
The Lowe’s loss prevention manager on duty that day,
Andy Childress was notified of the accident, and investigated
within minutes.
He testified that he spoke directly with Ms.
Ferrant, who told him that she tripped over the corner of the light
bulb pallet, as recorded in the incident report.
Childress
inspected the pallet, but did not find any problem with it.
A Lowe’s assistant store manager, Chris Naquin, reported
to the main aisle after the incident and has stated that Ms.
Ferrant told him that she was looking at the light bulbs when she
turned with her back to the pallet and tripped over it.
(Mr.
Crader corroborated Ms. Ferrant’s description of events, which was
that as she was looking at light bulbs, she turned her back to the
pallet, and was stepping backwards when she tripped over the
pallet).
Naquin inspected the pallet but did not see anything
wrong with it.
2
Merchant Liability Statute, La.R.S. 9:2800.6.
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 dispute 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 dispute 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
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
3
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.
Plaintiff’s Burden on Merchant Liability
La.R.S. 9:2800.6 establishes the plaintiff’s burden of proof
in 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)
(3)
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
4
safety procedure is insufficient,
alone,
to
prove
exercise
of
reasonable care.
C.
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 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 Corporation of Minnesota, 232 Fed.Appx. 389,
2007 WL 1170859, at *2 (5th Cir. April 17, 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.”
See White, 699 So.2d at 1084. “Though the
time
be
period
need
not
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
5
lengthy enough that a merchant, exercising reasonable care, would
have or should have discovered the hazard (here, the protruding
board) -- is a question of fact, proof of which is a burden the
plaintiff must bear.
Id. at 1084.
The plaintiff must make a
“positive showing” of the existence of the condition for some
period of time prior to the fall.
See Babin v. Winn-Dixie
Louisiana, Inc., 764 So.2d 37, 40 (La. 2000).
III.
The dispute here is whether Ms. Ferrant has raised a fact
issue regarding whether the board had been protruding from the
pallet for a period of time sufficient to implicate constructive
notice.
Invoking the statutory definition of constructive notice,
Lowe’s contends that there is no factual support for this essential
element of the plaintiff’s case, insisting that the plaintiff
cannot prove that the condition existed for such a period of time
that
it
would
reasonable care.
have
been
discovered
La.R.S. 9:2800.6C(1).
if
Lowe’s
had
exercised
The Court agrees.
As interpreted by the Louisiana Supreme Court, Section 2800.6
puts the burden on the plaintiff to provide “positive evidence
showing that the damage-causing condition existed for some period
of time, and that such time was sufficient to place the merchant
defendant on notice of its existence.”
White, 699 So.2d at 1082.
While this is necessarily a fact question, the fact question only
exists if the plaintiff makes “the prerequisite showing of some
6
time period.”
Id. at 1084.
Ms. Ferrant has not done so.
The
plaintiff has not satisfied the constructive notice requirement of
the statute by showing that the board had been protruding from the
pallet for some period of time prior to the alleged fall; this is
fatal to her claim.
See Babin v. Winn-Dixie Louisiana, Inc., 764
So.2d 37, 40 (La. 2000).
The
plaintiff
requests
that
the
Court
impose
adverse
presumptions against Lowe’s because it lost the photographs taken
immediately after the accident and because Lowe’s provided only a
short amount of surveillance video prior to and including the
plaintiff’s fall.
The plaintiff fails to show that either the
photographs or additional video footage would provide the evidence
she needs to prove her claim. The photographs were taken after Ms.
Ferrant had fallen.
These might have established -- at most --
that the board was damaged or protruding. (Although Mr. Crader has
said that he pushed the board back into place and that it was no
longer protruding.)
accident,
they
constructive
Because the photographs were taken after the
could
notice;4
not
provide
rather,
they
4
positive
would
proof
only
of
show
Lowe’s
that
a
In Kennedy v. Wal-Mart Stores, Inc., the Louisiana
Supreme Court reversed the trial court’s determination that the
plaintiff had shown that the defendant had constructive knowledge
of a spill, even where the plaintiff produced evidence showing that
the general area where he fell was within view of a customer
service podium and that it was raining on the evening of the
accident. 733 So.2d 1188, 1191 (La. 1999). The court reasoned
“plaintiff presented absolutely no evidence as to the length of
time the puddle was on the floor before his accident” and therefore
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potentially hazardous condition existed.
“A claimant who simply
shows that the condition existed without an additional showing that
the condition existed for some time before the fall has not carried
the burden of proving constructive notice as mandated by the
statute.”
assumed
White, 699 So.2d at 1084.
for
the
purpose
of
this
In any event, Lowe’s has
motion
that
the
board
was
protruding from the pallet so that the photographs would add
nothing to the analysis.
Constructive notice, however, is the
missing element, not the potentially hazardous condition.
The plaintiff also complains that Lowe’s did not provide a
sufficient amount of surveillance video footage and suggests that,
had more footage been provided, the video might have shown when the
board was broken or protruding and, perhaps, how long.
nothing more than speculation.
That is
“Such speculation”, the state high
court instructs, “falls short of the factual support required to
establish that plaintiff will be able to satisfy his evidentiary
burden of proof at trial.”
See Babin, 764 So.2d at 40.
The Court
fails to see how the video, which shows very little detail given
the vantage point of the camera,5 could demonstrate how long the
potentially dangerous condition had existed.
show the potentially hazardous pallet.)
failed to carry his burden.
(It does not even
Indeed, as Lowe’s points
Id.
5
Indeed, the Court can barely make out that a woman had
fallen because it appears a man helps her up; it does not show how
she fell or what, if anything, caused her to fall.
8
out, the video shows that at least two other customers walked down
the
same
aisle
without
incident
immediately
prior
to
the
plaintiff’s fall.
Finally, the plaintiff seeks the shield of a disputed fact
issue by urging that Lowe’s caused the dangerous condition itself;
specifically, the plaintiff concludes that Lowe’s must have created
the dangerous condition because Lowe’s owns and has control over
the pallet, which was placed by forklift by the night crew the
evening prior to the accident.
speculation.
Again the plaintiff resorts to raw
In fact, in advancing her arguments, the plaintiff
effectively asks the Court to shift the burden to Lowe’s to prove
that it acted reasonably.
This Court stresses, as the Louisiana
Supreme Court has pointed out in White, however, “the statute
provides for no such shift.”
White, 699 So.2d at 1085.
The
Louisiana Supreme Court takes a very frank merchant-protective
view:
The claimant must make a positive showing of
the existence of the condition prior to the
fall. A defendant merchant does not have to
make a positive showing of the absence of the
existence of the condition prior to the fall.
Notwithstanding that such would require
proving in the negative, the statute simply
does not provide for a shifting of the burden.
Id. at 1084.
Although Lowe’s has the burden to establish that summary
judgment
is
appropriate,
its
entitlement
to
relief
can
be
accomplished by showing a complete absence of record evidence to
9
support
an
essential,
plaintiff’s claim.
322-23 (1986).
indeed
a
mandatory,
element
of
the
See Celotex Corp. v. Catrett, 477 U.S. 317,
The plaintiff claims that she fell after tripping
over a board protruding from a pallet.
board was protruding from the pallet.
The Court assumes that a
It is undisputed, however,
that there is no evidence that tends to show how long the board
might have been protruding from the pallet.
Thus, there is no
evidence that supports the constructive notice element of her
claim, as required by La.R.S. 9:2800.6B(2); no circumstantial
evidence has been presented which would enable the Court to even
infer that the pallet had been protruding for some time before the
plaintiff fell.6
Because the plaintiff is not able to establish
an essential element of her claim as required by Louisiana law,
Lowe’s is entitled to judgment as a matter of law.7
The local law
6
Although White was decided after a trial on the merits,
like in White, the plaintiff here has “presented no evidence that
the liquid was on the floor for any length of time. This complete
lack of evidence falls short of carrying the burden of proving that
the liquid had been on the floor for such a period of time that the
defendant should have discovered its existence.” White, 699 So.2d
at 1086.
The plaintiff fails to raise any disputed issues of
material fact as to the actual or constructive notice element of
her claim.
This Court is bound by what it interprets as the
patently protective character of Louisiana’s current merchant
liability statute and decisions of the state’s high court.
7
Finally, the plaintiff seeks to avoid dismissal,
notwithstanding the absence of a positive showing that the store
had constructive notice of the protruding board, by insisting that
summary judgment is premature because discovery is not complete.
However, to justify a continuance under these circumstances, Rule
56(d) requires that a nonmovant present specified reasons by
affidavit as to why she cannot present facts to support her claim;
10
of merchant-liability demands more for plaintiff to be able to
withstand a claim for summary relief.
Accordingly, Lowe’s motion for summary judgment is GRANTED.
The plaintiff’s case is hereby dismissed.
New Orleans, Louisiana, October 11, 2011
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
here, the plaintiff has not shown how additional discovery will
defeat the summary judgment motion. See Fed.R.Civ.P. 56(d). The
plaintiff has submitted no affidavit in support of a continuance,
and has failed to show how additional discovery will create a
genuine dispute as to a material fact. The Court finds no reason
to defer its ruling.
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