Osorio v. Target Corporation of Minnesota et al
Filing
35
ORDER & REASONS granting 22 Motion for Summary Judgment; FURTHER ORDERED that Plaintiff's claims against Defendant Target Corporation of Minnesota are DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 8/14/12. (sek, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
OSORIO
CIVIL ACTION
VERSUS
NO: 11-1761
TARGET CORPORATION OF
MINNESOTA, ET AL.
SECTION: "J” (5)
ORDER AND REASONS
Before
the
Court
are
Defendant
Target
Corporation
of
Minnesota (“Target”)’s Motion for Summary Judgment (Rec. Doc.
22), Plaintiff Stephanie Osorio (“Mrs. Osorio”)’s opposition to
same (Rec. Docs. 27, 28), and Defendant’s reply thereto (Rec.
Doc. 32). Defendant’s motion, set for hearing on August 15, 2012,
is before the Court on the briefs without oral argument. Having
considered the motion and memoranda of counsel, the record, and
the
applicable
law,
the
Court
finds
that
Defendant’s
motion
should be GRANTED, for the reasons set out more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This action arises out of a slip and fall that allegedly
occurred
on
October
11,
2010,
at
1
a
Target
store
in
Harvey,
Louisiana. Mrs. Osorio was reportedly shopping with her husband
and two-year-old son when she slipped in a puddle of a clear
liquid substance, believed to be water, while walking down an
aisle toward the checkout area. Upon her fall, Mrs. Osorio’s
husband allegedly went to find help, returning to the scene with
Ms. Rodrigue, a Target employee who is reported to have been
standing approximately twenty feet away at the time of the fall.
Upon arriving at the scene, Ms. Rodrigue is reported to have
radioed the Target manager on duty for assistance. Following the
incident, Mrs. Osorio filed the instant suit in state court on
June
8,
2011,
naming
as
Defendants
Target
and
ACE
American
Insurance Company, and seeking damages for injuries caused as a
result of the fall. The Defendants removed the case to this Court
on July 20, 2011. Target filed the instant motion seeking summary
judgment on July 17, 2012.
PARTIES’ ARGUMENTS
Defendant argues that it is entitled to judgment as a matter
of
law
because
Mrs.
Osorio
has
failed
to
meet
the
notice
requirement under Louisiana law. Specifically, Defendant argues
that under Louisiana Revised Statute 9:2800.6, the Plaintiff has
the burden of proving that Target had actual or constructive
notice of the condition which led to her fall, i.e. the liquid on
2
the floor, prior to her fall. Defendant notes that in proving
constructive notice, the Plaintiff must demonstrate not only that
the liquid was on the floor, but also that it was on the floor
for “such a period of time” so as to alert Target that it posed a
hazard. Defendant argues that the Plaintiff cannot meet this
burden, because both she and her husband testified in their
depositions that they did not know where the liquid came from or
for how long it had been there. In addition, they also testified
that neither of them saw the liquid before Plaintiff slipped, and
that it was only after her fall that they noticed the liquid.
Furthermore, Defendant argues that Plaintiff’s testimony that she
saw employees in the area, and that Ms. Rodrigue was close enough
to see the liquid are too vague to raise a genuine issue of
material fact as to the question of constructive notice. In
particular, Defendant points to the testimony of Ms. Rodrigue in
which she states that she could not see the Plaintiff or the
floor where the Plaintiff fell from her vantage point.
Plaintiff responds by arguing that the information presented
in the deposition testimony is sufficient to raise a genuine
issue of material fact. Plaintiff asserts that Ms. Rodrigue was
in the area of the accident at the time of her fall. Furthermore,
Plaintiff contends that per Ms. Rodrigue’s deposition testimony,
3
approximately three check-out cashiers and a standby cashier were
also in the area at the time of her fall.1 Plaintiff argues that
Ms.
Rodrigue’s
testimony
that
the
cashiers’
jobs
were
to
“straighten up and pick up abandons and things of that nature” in
their “zones” indicates that the cashiers on duty could have
seen, or should have seen, the water on the floor since they were
located approximately twenty feet away from the site of the fall,
and it was their job to clean up the area. Plaintiff argues that
this indicates that they had constructive notice. In addition to
Ms. Rodrigue’s testimony, Plaintiff also offers a picture of
where the accident occurred as proof that the employees’ views of
the area where Plaintiff fell were unobstructed.
DISCUSSION
A. Legal Standard
1
The Court notes that Plaintiff’s argument on this point is
slightly unclear. On page two of Plaintiff’s brief, she argues
that there were “three cashiers and a standby cashier on duty in
the area.” (Rec. Doc. 27, p. 2) However, on page three she
asserts that constructive notice is met because there was one
standby cashier, “another cashier as only two checkouts were
open,” Ms. Rodrigue, and “two working cashiers” for a total of
five employees within twenty feet of the site of the fall. (Rec.
Doc. 27, p. 3) The Court will assume that under either
description the implication is that five employees were on duty,
although it is unclear per Plaintiff’s description who was
working and who was not working. Furthermore, the Court notes
that Ms. Rodrigue states in her deposition that she was not sure
how many cashiers were on duty that particular date. Deposition
of Anitra Rodrigue, Rec. Doc. 28-3, p. 18, ¶¶ 8 - 12.
4
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.
R. CIV. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).
When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing the evidence.”
Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).
All
reasonable inferences are drawn in favor of the nonmoving party,
but
a
party
cannot
defeat
summary
judgment
allegations or unsubstantiated assertions.
with
conclusory
Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable
jury could not return a verdict for the nonmoving party.” Delta,
530 F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
5
Cir.
1991)
(citation
omitted).
The
nonmoving
party
can
then
defeat the motion by either countering with sufficient evidence
of its own, or “showing that the moving party’s evidence is so
sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party’s claim. See Celotex, 477 U.S. at 325.
The burden then shifts to the nonmoving party, who must, by
submitting
showing
or
that
referring
a
genuine
to
evidence,
issue
set
exists.
See
out
specific
id.
at
facts
324.
The
nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial. See,
e.g., id. at 325; Little, 37 F.3d at 1075.
B. Applicable Law
Louisiana’s Merchant Liability Statute provides that when an
individual brings a claim for negligence against a merchant as a
result
of
“a
fall
due
to
a
condition
existing
in
or
on
a
merchant’s premises,” the individual bringing the action bears
the burden of proof. La. Rev. Stat. § 9:2800.6. In addition to
6
the
general
provides
either
elements
that
the
created
or
of
negligence,
plaintiff
had
must
actual
or
the
prove
statute
that
constructive
specifically
“[t]he
notice
merchant
of
the
condition which caused the damage, prior to the occurrence.” Id.
§ 9:2800.6 (B)(2). The statute defines constructive notice as
meaning that “the condition existed for such a period of time
that it would have been discovered if the merchant had exercised
reasonable care.” Id. § 9:2800.6 (C)(1) (emphasis added). The
Louisiana
Supreme
Court
has
stated
that
the
definition
of
constructive notice indicates that the plaintiff “must make a
positive showing of the existence of the condition prior to the
fall.” White v. Wal-Mart Stores, Inc., No. 97-0393 (La. 9/9/97),
699 So.2d 1081, 1084 (La. 1997). Furthermore, the court has
stated that even where a plaintiff can demonstrate that the
condition in question existed, such a showing is not sufficient
to meet the plaintiff’s burden of proof where the plaintiff has
not also made “an additional showing that the condition existed
for some time before the fall.” Id. Constructive notice cannot be
inferred
absent
such
a
showing.
Id.
The
questions
of
the
reasonableness of the merchant’s response and the sufficiency of
the time period shown to put the store on notice are questions of
fact. Id.
7
The Court finds that the Plaintiff’s claim fails as a matter
of
law.
In
making
this
determination,
the
Court
finds
the
Defendant’s argument that the Plaintiff has not made a sufficient
showing that the liquid was on the floor for “such a period of
time”
persuasive.
In
supporting
its
argument,
the
Defendant
relies on White v. Wal-Mart Stores, Inc. In White, a customer
sued a store owner seeking to recover damages for injuries caused
as a result of a slip and fall. 699 So.2d at 1082. The Court held
that the plaintiff failed to meet her burden of proof on the
element
of
constructive
notice
because
she
did
not
present
positive evidence showing that the condition which led to the
fall, i.e. liquid on the floor, had existed for some time. Id. In
particular, the court found it important that both the plaintiff
and her grandson had testified that they had not noticed the
liquid before the plaintiff slipped in it. Id. Moreover, the
court noted that the plaintiff could produce no positive evidence
that a store employee who was located approximately fifteen feet
away, and who had seen the plaintiff fall, could actually see the
floor itself and/or the liquid on the floor before the fall.2 As
such, the court found that plaintiff could not establish the time
2
Id. at 1083. Although the plaintiff in White did not
directly contradict the employee, she did testify that the
employee’s view of the area where she fell was unobstructed. Id.
8
period required for constructive notice and, therefore, her claim
failed. Id. at 1085-86.
The Court finds that White is comparable to the instant
action. Here, like the plaintiff and her grandson in White, both
the Plaintiff and her husband have testified that they did not
notice the spill prior to the Plaintiff’s fall. Likewise, just as
in
White,
the
Plaintiff
in
this
case
has
introduced
no
affirmative evidence that anyone noticed the spill before her
fall. In addition, similar to the employee in White, Ms. Rodrigue
has testified that she could not see the area where the Plaintiff
fell, and thus could not see any liquid on the floor. While the
Plaintiff
argues
that
the
photo
she
submitted
as
evidence
contradicts Ms. Rodrigue’s statement and creates a question of
fact, the Court notes that the photo only depicts where the
Plaintiff fell, and the direction of the area where Ms. Rodrigue
was located. The picture does not demonstrate to the Court that
Ms. Rodrigue could see the area, or even what Ms. Rodrigue could
see in the store, thus it neither contradicts nor supports her
testimony. Because the burden is on the Plaintiff to present
evidence of specific facts to show that a genuine issue exists,
the Court finds that this is not sufficient to overcome summary
judgment.
9
In
addition
to
the
similarities
between
White
and
the
instant action, the Court also finds the Defendant’s argument
that
this
case
is
comparable
to
Walthall
v.
E-Z
Server
Convenience Stores, Inc., 988 F. Supp. 996 (E.D. La. 1997), aff’d
146 F.3d 868, 868 (5th Cir. 1998), persuasive. In Walthall, the
court considered a motion for summary judgment based on the
plaintiff’s alleged failure to show constructive notice of water
on the ground in a slip and fall case. 988 F. Supp at 997. In
that case, the plaintiff testified that she did not recall seeing
the water on the floor prior to her fall, although she did notice
it after her fall. Id. at 999-1000. The plaintiff also did not
proffer any witnesses who could affirmatively testify to seeing
water on the floor prior to the plaintiff’s fall. Id. at 1000.
Based on this evidence, the court found that the plaintiff had
failed to establish the temporal element of constructive notice.
Id. Because she could not prove that the water was on the floor
for any length of time prior to her fall, the court granted
defendant’s motion for summary judgment. Id. Likewise, in the
instant action, Plaintiff has testified that she did not recall
seeing
water
on
the
floor
prior
to
her
fall.
Additionally,
Plaintiff has not proffered any witnesses who can testify to
seeing liquid on the floor prior to Plaintiff’s fall. As such,
10
this Court finds that the instant case is similar to Walthall,
and that the Plaintiff has failed to establish the temporal
element of constructive notice required under Louisiana law.
Accordingly, IT IS ORDERED that Defendant’s motion is hereby
GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s claims against
Defendant Target Corporation of Minnesota are DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana this 14th day of August, 2012.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
11
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