pellegrin v. WINN DIXIE MONTGOMERY, LLC, D/B/A WINN DIXIE MONTGOMERY, INC

Filing 45

ORDER AND REASONS denying 21 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 10/5/2011. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BELINDA PELLEGRIN

CIVIL ACTION

Versus

NO. 10-4521

WINN DIXIE MONTGOMERY, LLC

SECTION: “F”

ORDER AND REASONS
Before the Court is defendant’s motion for summary judgment.
For the reasons that follow, the defendant’s motion is DENIED.
Background
Plaintiff Bellinda Pellegrin was shopping at a Winn-Dixie
store in Marrero, Louisiana in late January 2010.

As she walked

up one of the aisles, she slipped on a puddle of clear liquid on
the floor of the supermarket.

Plaintiff fell and allegedly

sustained severe injuries to her back.

Plaintiff cannot

determine exactly what the clear liquid was, but thinks it was
either water coming from a plastic flower bucket, or vodka,
spilled from a nearby broken bottle.

She seeks $2,500,000 in

damages.
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
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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
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.
Catrett, 477 U.S. 317, 322-23 (1986).

See Celotex Corp. v.

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.

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II.
Having considered the record, the Court finds that there are
genuine issues of material fact in this case, which make summary
relief inappropriate.
To prevail on her negligence claim against Winn-Dixie,
plaintiff must show that Winn-Dixie had actual or constructive
knowledge of the puddle of clear liquid on the floor of the
supermarket.

LSA-R.S. Section 9:2800.6.

Constructive knowledge

can be established where “the [puddle] existed for such a period
of time that it would have been discovered if the merchant had
exercised reasonable care.”

Id.

Plaintiff says that a genuine issue of material fact exists
as to whether the puddle was present for a significant amount of
time, and whether Winn-Dixie employees should have noticed it had
they used reasonable care.

See White v. Wal-Mart Stores, Inc.,

699 So.2d 1081, 1084 (La. 1997) (the length of time determination
and whether the merchant, exercising reasonable care, should have
noticed the hazard is a question of fact).
Plaintiff points to testimony from Lee Geske, the store
manager, who claims to have seen dirty footprint marks around the
puddle.

Plaintiff also relies on the testimony of another

witness, Linda Guillot, who says that she saw dirty shopping cart
wheel marks going through the puddle, and branching out in
different directions.

And there is Lee Geske’s statement that

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the department that plaintiff slipped in did not have anyone on
duty for the two and a half hours preceding the accident.
Accordingly, IT IS ORDERED: That the defendant’s motion for
summary judgment is DENIED.

New Orleans, Louisiana, October 5, 2011

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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