Davis v. Target Corporation of Minnesota et al
Filing
34
ORDER AND REASONS granting 26 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Eric Davis
CIVIL ACTION
versus
No. 11-0802
Target Corporation of Minnesota, and
Ace American Insurance Company
Section B(5)
ORDER AND REASONS
Before
Minnesota
the
and
Court
Ace
are
Defendants’,
American
Insurance
Target
Corporation
Company
of
(hereinafter
“Target”), Motion for Summary Judgment. (Rec. Doc. No. 26 & 262).
In response, Plaintiff Eric Davis (“Davis”) submitted a
Memorandum in Opposition to the Motion for Summary Judgment.
(Rec. Doc. No. 29).
Defendant Target followed this with a Reply
Memorandum in Support of its Motion for Summary Judgment.
Doc. No. 31-2).
(Rec.
Accordingly, and for the reasons articulated
below,
IT IS ORDERED that Defendants’ Motion for Summary Judgment
is GRANTED.
PROCEDURAL AND FACTUAL HISTORY
On January 3, 2010, Plaintiff Eric Davis and his wife went
to Target to develop film.
(Rec. Doc. No. 26-2 at 2).
According
to in-store video, at 1:47:18 p.m. a child spilled a drink onto
the floor.
(Defs.’ Video at 1:47:18 p.m.).
into the spill at 1:47:43 p.m.
Plaintiff stepped
(Defs.’ Video at 1:47:43 p.m.).
Plaintiff’s fall consisted of his left heel coming down into the
puddle and sliding forward.
(Defs.’ Video).
Plaintiff did not
fall to the ground or otherwise stumble.
Id.
In this span of
time, the video does not show any Target employee noticing the
spill or in a position where an employee should have noticed the
spill, nor
does
it
evidence
any nearby
customer
attention of a Target employee in that timeframe.1
getting
the
Id.
On or near October 12, 2010, Plaintiff filed a complaint
alleging Target’s liability in violation of LA. REV. STAT. ANN. §
9:2800.6, resulting in severe and debilitating injuries sustained
during the slip and fall accident.
CONTENTIONS OF THE PETITIONER
Defendant Target contends that Plaintiff’s complaint fails
as a matter of law on the “notice requirement” under LA. REV.
STAT. ANN. § 9:2800.6.
Target argues that no genuine issue of
disputed, material fact exists for this prima facie element, as
the incident occurred twenty-five seconds after the spill, and no
other
disputed,
material
fact
exists
as
to
any
notice,
constructive or actual, received by Target employees.
CONTENTIONS OF THE RESPONDENT
Davis contends that Target had actual notice due to the
presence of at least three Target employees in the immediate
vicinity.
1
Plaintiff does assert that a certain employee, appearing on the video, might
have witnessed the spill. (Rec. Doc. No. 29 at 2). However, this amounts to
little more than a bare assertion, as will be addressed later in the analysis.
2
In the alternative, Davis contends that due to the proximity
of the employees, a genuine issue of material fact exists as to
Target’s alleged constructive notice.
LAW
I. Standard of Review
Summary judgment is proper if the pleadings, depositions,
interrogatory
affidavits,
answers,
show
and
that
admissions,
there
is
no
together
genuine
issue
with
as
to
any
any
material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 327 (1986). A genuine issue exists if
the evidence would allow a reasonable jury to return a verdict
for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, (1986). The moving party has the burden of showing there is
no genuine issue of material fact, but may discharge this burden
by
showing
the
absence
of
evidence
necessary
to
support
an
essential element of the nonmoving party’s case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Although
reasonable
the
Court
inferences
in
must
consider
the
light
the
most
evidence
favorable
with
all
to
the
nonmoving party, the nonmovant must produce specific facts to
demonstrate
that
a
genuine
issue
exists
for
trial.
Webb
v.
Cardiothoracic Surgery Assocs. of N. Texas, 139 F.3d 532, 536
(5th Cir. 1998).
To oppose a motion for summary judgment, “the
3
non-movant cannot rest on mere allegations or denials but must
set forth specific facts showing that there is a general issue of
material fact,” Celotex Corp., at 321-22. In other words, the
nonmovant
must
depositions,
go
beyond
the
interrogatory
pleadings
responses,
and
use
affidavits,
admissions,
or
other
evidence to establish a genuine issue. Webb, 139 F.3d at 536.
Accordingly,
conclusory
rebuttals
of
the
pleadings
are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc. 7 F.3d 1203, 1207 (5th Cir. 1993).
II. Notice Under LA. REV. STAT. ANN. § 9:2800.6
This
claim
arises
under
Louisiana’s
Merchant
Statute, which provides, in pertinent part:
B. In a negligence claim brought against a
merchant . . . , the claimant shall have the
burden of proving, in addition to all other
elements of his cause of action, all of the
following:
(2) The merchant either created or had
actual
or
constructive
notice
of
the
condition which caused the damage, prior to
the occurrence.
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.
LA. REV. STAT. ANN. § 9:2800.6.
4
Liability
Failure to prove any enumerated element of this statue will
prove fatal to a plaintiff’s action.
Rowell v. Hollywood Casino
Shreveport, 996 So. 2d 476, 478 (La. App. 2d Cir. 2008)(citations
omitted).
As mentioned above, the current contentions revolve around
the
element
of
notice.
Plaintiff
merchant created this condition.
does
not
allege
(Rec. Doc. No. 29).
that
the
As such,
Plaintiff must show that the merchant, via the store’s employees,
had either actual notice or constructive notice of the spill.
LA. REV. STAT. ANN. § 9:2800.6.
ANALYSIS
The Plaintiff cannot make a showing of a genuine, disputed
material fact as to the existence of either actual notice or
constructive
notice.
As such,
summary
judgment in
favor of
Defendants is appropriate.
I. Actual Notice
Actual notice, as is apparent by its name, requires some
actual witnessing of the condition/event, or at least an actual
knowledge of a routine and expected dangerous condition at a
certain location.
See Ward v. ITT Specialty Risk Services, Inc.,
739 So. 2d 251, 254 (La. App. 2d Cir. 1999); Barton v. Wal-Mart
Stores, Inc., 704 So. 2d 361 (La. App. 3d Cir. 1997).
No
testimony
employee’s
or
witnessing
other
of
admission
the
spill
5
exists
prior
to
relating
the
to
an
accident.
Plaintiff instead asserts two different grounds to show actual
notice.
(Rec. Doc. No. 29 at 2).
First, Plaintiff notes at 1:42:27 p.m. in the video “there
appears to be a Target employee between aisles 22 and 24 walk to
the end of the aisle, look in the direction of the spill, then
proceed to grab a shopping cart and walk back in the opposite
direction.”
Id.
At one point after
the spill, but before
Plaintiff’s slip, an employee rounds the corner of one checkout
lane and maneuvers a shopping cart laden with merchandise out of
the camera’s view.
(Defs.’ Video).
While this does put the
employee in the same general corridor that contains the spill for
1-2 seconds, there is no evidence that the employee saw the spill
or otherwise should have seen it.
32); (Defs.’ Video).
See (Rec. Doc. No. 29-2 at
A claim to the contrary amounts to little
more than a bare assertion.
See Bergeron v. Am. Nat. Prop. &
Cas. Co., No. 07-9484, 2009 WL 1969247, at *3 (E.D. La. July 08,
2009) (citations omitted).
Second, in addition to the employee with the shopping cart,
Plaintiff asserts that the presence of two other employees also
between twenty
turned
to
the
to
thirty
spill
and
feet
away,
registers
likely
with
obstructing
their
backs
their
view,
satisfies actual notice. (Rec. Doc. No. 29 at 1, 2, 5-6); (Rec.
Doc. No. 29-2 at 23, 48).
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In support of this contention that employees in the area
creates
actual
notice,
Plaintiff
cites
the
case
Blackman
v.
Brookshire Grocery Co., 966 So. 2d 1185, 1191 (La. App. 3d Cir.
2007).
However in that case, actual notice occurred due to a
customer informing a manager of the spill prior to the accident.
Id.
The court commented on the presence of five or six employees
in the area only in relation to the store’s ability to respond to
the spill within the timeframe presented by the facts of that
case.
Id.2
This does not support Plaintiff’s contention of
actual notice.
As Plaintiff can show no genuine issue of disputed, material
fact regarding actual notice, he must show an issue of fact as to
constructive notice to survive summary judgment.
II. Constructive Notice
“’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.”
LA. REV. STAT. ANN. § 9:2800.6.
No specific time period
marks the minimum amount required to satisfy this element, and
thus remains a question of fact.
White v. Wal-Mart Stores, Inc.,
699 So. 2d 1081, 1084 (La. 1997).
2
In addition, “the presence of
Plaintiff also references the case of Brown v. Brookshire's Grocery Co., 868
So. 2d 297, 303 (La. App. 2d Cir. 2004), to support his claim of actual notice.
He references this case though for the proposition that a heightened standard of
care results from an employee witnessing a spill and standing guard over it.
That is not the case at bar.
7
an employee in the vicinity in which the condition exists does
not, alone, constitute constructive notice.”
§ 9:2800.6.
LA. REV. STAT. ANN.
Moreover, “mere speculation or suggestion” does not
give the court cause to infer constructive notice and thus deny
summary
judgment
likely
than
“where
any
plaintiff’s
allegations
potential
scenario.’”
other
are
‘no
more
Bagley
v.
Albertsons, Inc., 492 F.3d 328, 330 (5th Cir. 2007) (quotations
omitted).
The
slip
occurred
twenty-five
seconds
(Defs.’ Video); (Rec. Doc. No. 26-2 at 1).
after
the
spill.
Again, Defendants’
evidence shows that three employees stood within 20-30 feet of
the spill, one of whom was engaged in another task, and the other
two turned away from or with obstructed views of the spill.
(Defs.’ Video); (Rec. Doc. No. 29-2 at 23, 48).
The video does
not evidence any employee with an advantageous position to notice
the
spill,
nor
does
it
show
anyone
attempting
to
get
an
employee’s attention within the twenty-five second time period
between the spill and Plaintiff’s slip.
Doc. No. 26-2 at 3).
(Defs.’ Video); (Rec.
Given these facts, Plaintiff’s claim that
the store should have noticed the spill during that twenty-five
second
period
constitutes
mere
speculation
not
sufficient
to
overcome summary judgment.
In
support
of
his
assertion,
Plaintiff
references
four
cases, none of which aid his position due to distinguishable fact
8
patterns.
(Rec. Doc. No. 29 at 4-5).
Most notably, Plaintiff
presents a case dealing with a comparable time period as the time
period here between spill and accident.
Carter v. Zurich Am.
Ins. Co., No. CIV.A. 11-125-JJB, 2012 WL 702270 (M.D. La. Mar. 1,
2012) (denying summary judgment).
However, distinguishing facts
in that case overcome applicability to our present scenario.
Carter,
the
court
established
based
noted
on
a
that
some
twenty
to
temporal element
twenty-five
In
had been
second
window.
However, a critical factual distinction for that court arose from
the
position
of
two
employees
standing
and facing
the
spill
location, without obstructions being noted, as well as being
close to the spill location with the plaintiff’s slip and fall
occurring right in front of them.
Id. at 1.
The court noted the
importance of the immediate proximity of the employees to the
fall when it held that this case differed from other cases where
the employees “were further away and/or engaged in some task.”
Id. at 1, n. 1.
Our facts fall into the latter category, where
the employees both stood at a distance from the spill location
and were engaged in other tasks or had obstructed views.
Here,
upon
video
incidents.
evidence
clearly
Undisputed
shows
material
the
facts
entirety
establish
of suedthat
Target, via its employees, had no actual nor constructive notice,
as evidenced by a clear record of the spill and slip events.
9
CONCLUSION
Based on the video evidence and lack of material testimonial
evidence
to
the
contrary,
Plaintiff
can
show
no
material,
disputed fact.
Accordingly, and for the reasons articulated above, IT IS
ORDERED that Defendants’ Motion for Summary Judgment is GRANTED.
New Orleans, Louisiana, this 3rd day of August, 2012.
________________________________
UNITED STATES DISTRICT JUDGE
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