Ferrant v. Lowe's Home Centers, Inc.
Filing
39
ORDER AND REASONS denying 30 Motion for New Trial. Signed by Judge Martin L.C. Feldman on 12/19/2011. (tsf, )
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 the plaintiff’s motion for new trial. For
the reasons that follow, the motion is DENIED.
Background
The facts of this case are more completely summarized in this
Court’s October 11, 2011 Order and Reasons, in which the Court
granted the defendant’s motion for summary judgment.
This case arises 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.
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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 sought
summary relief on the ground that Ms. Ferrant cannot prove all of
the essential elements of her claim under the Louisiana Merchant
Liability Statute, La.R.S. 9:2800.6. This Court granted the motion
on October 11, 2011; judgment was entered on October 13, 2011. The
plaintiff now requests a new trial.
I.
Rule 59(e) of the Federal Rules of Civil Procedure provides
that a motion to alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment.
Fed.R.Civ.P. 59(e).
2
Ms. Ferrant has testified that she never actually saw
the allegedly broken, protruding board. 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; he
pushed the board back into place.
3
The Lowe’s loss prevention manager on duty that day,
Andy Childress investigated within minutes of Ms. Ferrant’s fall.
Childress inspected the pallet, but did not find any problem with
it. A Lowe’s assistant store manager, Chris Naquin, also reported
to the main aisle after the incident; he also inspected the pallet
but observed no apparent defect.
2
Rule 60(b), on the other hand, applies to motions filed after the
28-day
period,
requirements.”
but
demands
more
“exacting
substantive
See Lavespere v. Niagara Machine & Tool Works, 910
F.2d 167, 173-74 (5th Cir. 1990), abrogated on other grounds,
Little v. Liquid Air Corp., 37 F.3d 1069, 1078 (5th Cir. 1994)(en
banc).
“A Rule 59(e) motion ‘calls into question the correctness of
a judgment.’”
Templet v. Hydrochem, Inc., 367 F.3d 473, 478 (5th
Cir. 2004) (quoting In re Transtexas Gas Corp., 303 F.3d 571, 581
(5th Cir. 2002)).
Because of the interest in finality, Rule 59(e)
motions may only be granted if the moving party shows there was a
mistake of law or fact or presents newly discovered evidence that
could
not
have
been
discovered
previously.
Id.
at
478-79.
Moreover, Rule 59 motions should not be used to relitigate old
matters, raise new arguments, or submit evidence that could have
been presented earlier in the proceedings.
See id. at 479;
Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th
Cir. 2010)(“a motion to alter or amend the judgment under Rule
59(e) ‘must clearly establish either a manifest error of law or
fact or must present newly discovered evidence’ and ‘cannot be used
to raise arguments which could, and should, have been made before
the judgment issued’”)(citing Rosenzweig v. Azurix Corp., 332 F.3d
854, 864 (5th Cir. 2003)(quoting Simon v. United States, 891 F.2d
1154, 1159 (5th Cir. 1990)).
The grant of such a motion is an
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“extraordinary remedy that should be used sparingly.” Indep. CocaCola Employees’ Union of Lake Charles, No. 1060 v. Coca-Cola
Bottling Co. United, Inc., 114 Fed.Appx. 137, 143 (5th Cir. Nov.
11, 2004) (citing Templet, 367 F.3d at 479).
The Court must
balance two important judicial imperatives in deciding whether to
reopen a case in response to a motion for reconsideration: “(1) the
need to bring the litigation to an end; and (2) the need to render
just decisions on the basis of all the facts.”
Templet, 367 F.3d
at 479.
Because the Court entered the challenged Judgment on October
13, 2011 and the plaintiff filed her motion for new trial 21 days
later on November 3, the motion for new trial is timely under Rule
59(e)’s 28-day deadline.
II.
The plaintiff contends that discovery had not been completed
when judgment was entered, and she speculates that additional video
footage might show other vantage points, or reveal additional
witnesses, to Ms. Ferrant’s trip and fall.
The plaintiff further
contends that, contrary to this Court’s grant of summary relief in
Lowe’s favor, she could prove each of the elements of merchant
liability: she suggests that there is at least an issue of fact
that Lowe’s created the hazardous condition and, thus, she need not
show that Lowe’s had notice of it; and, the plaintiff insists
“[c]onsidering the length of time that the pallet must have been
4
sitting in the aisle, it may readily be concluded that merchant had
failed to provide ‘reasonable care.’” The plaintiff urges the Court
to grant a new trial.
The defendant counters that a new trial is
unwarranted because the plaintiff has asserted no factual or legal
basis for a new trial; rather, the plaintiff simply rehashes
arguments that she already made, or should have made, in opposing
the motion for summary judgment.
The Court agrees.
A new trial is not warranted where, as here, the plaintiff
simply asserts the same speculative arguments that this Court
already rejected.4
The only “new” argument that plaintiff asserts
is that the location of the pallet “in a narrow passageway” was per
se unreasonable; that is, even if the plaintiff cannot prove the
length of time the board had been protruding, the location of the
pallet itself was unreasonable.
This argument could have been
presented sooner and fails to convince the Court to reconsider its
ruling. Finally, the plaintiff incorrectly suggests that the Court
erred in applying case law that concerned slip and fall scenarios
to Ms. Ferrant’s trip and fall. To the contrary, the Court applied
the merchant liability statute as interpreted by relevant case law
to the facts of Ms. Ferrant’s case, in which she alleged that she
4
The plaintiff continues to insist that discovery of
additional video surveillance would assist in discharging her
burden of proof on merchant liability.
The Court previously
declined to defer its ruling because the plaintiff failed to submit
an affidavit in support of a continuance, and failed to show how
additional discovery will create a genuine dispute as to a material
fact. The Court finds no reason to reconsider.
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tripped over a board protruding from a pallet. As previously noted
in the October 11 Order and Reasons, Louisiana’s merchant liability
statute requires the plaintiff to prove, in addition to each
element
of
her
claim,
that:
(1)
The
condition
presented
an
unreasonable risk of harm to the plaintiff and that risk of harm
was reasonably foreseeable; (2) Lowe’s either created or had actual
or constructive notice of the condition which caused the damage,
prior
to
the
occurrence;
reasonable care.
and
(3)
La.R.S. 9:2800.6.
Lowe’s
failed
to
exercise
Because the record confirmed
that Ms. Ferrant was unable to prove these essential elements,
summary relief was granted. Now, having submitted no new evidence,
and having failed to convince the Court that a manifest factual or
legal error was committed, the plaintiff has failed to persuade
this Court that a new trial is warranted.
Accordingly, the plaintiff’s motion for new trial is DENIED.
New Orleans, Louisiana, December 19, 2011
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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