Morris v. Home Depot, U.S.A., Inc.

Filing 26

ORDER & REASONS denying 19 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 8/22/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

VICTOR MORRIS

CIVIL ACTION

v.

NO. 12-1700

HOME DEPOT, U.S.A., INC.

SECTION "F"
ORDER AND REASONS

Before the Court is Home Depot, U.S.A., Inc.'s Motion for
Summary Judgment.

For the reasons that follow, the motion is

DENIED.
Background
This is a personal injury case arising out of a trip and fall
incident that occurred at a Home Depot store in Kenner, Louisiana.
Victor Morris was helping his daughter repair her house.

He

made several trips to Home Depot, located at 2625 Veterans Memorial
Boulevard in Kenner, to purchase supplies for the renovation.

On

July 1, 2011, approximately one week after one of his trips to Home
Depot, Mr. Morris and a friend, Oliver Cox, visited the same Home
Depot in Kenner, this time to obtain supplies for the installation
of an interior bathroom door.

Mr. Morris and Mr. Cox first

searched a few aisles for a door.

Mr. Cox thought he found the

door they needed midway down Aisle 29 in an upper bay.
to Mr. Morris, who was in another aisle.
Aisle 29 from the rear of the store.
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He called

Mr. Morris approached

Mr. Morris approached Mr.

Cox, who was standing next to a pole; Mr. Morris noticed that, next
to the pole where Mr. Cox was standing, there were two boxes of
merchandise on the floor by the pole; one box was stacked on top of
the other.

Mr. Morris continued to walk toward Mr. Cox.

While

looking up towards the door being pointed out to him by Mr. Cos,
Mr. Morris passed Mr. Cox, the stacked merchandise, and the pole;
at that time, he walked backwards to aid his view of the doors that
were displayed high on the top shelf; as he walked backwards, he
tripped over a single yellow box of merchandise, which was located
on the floor on the opposite side of the pole from where the stack
of two boxes of the same merchandise had been located.

Mr. Morris

did not see the single box at the time because he was facing away
from it -- once he walked past his friend, the stack of two boxes,
and the pole, he was looking up for the door that Mr. Cox was
pointing out to him.

And he did not see the one stack of boxes he

fell over before he started walking backwards because, from his
vantage point coming from the back of the store, he says, the
single box was obscured by the two boxes that were stacked on top
of each other.
As a result of tripping backwards over the single box, Mr.
Morris fell, striking his back, shoulders, and head on the concrete
floor; he also injured his left hand and finger, on which he had
surgery to repair the finger tendon and joint.

On May 22, 2012 Mr.

Morris sued Home Depot U.S.A., Inc. in state court, asserting that

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Home Depot's negligence caused his injuries; he seeks to recover
past and future medical expenses, pain and suffering, permanent
disability, loss of wages, and lost wage-earning capacity. On June
29, 2012 Home Depot removed the lawsuit to this Court, invoking the
Court's diversity jurisdiction.

Home Depot now seeks summary

relief on the ground that Home Depot cannot be held liable because
it had no duty to warn Mr. Morris of an open and obvious condition.
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

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

3

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
his claims.

Id.

Hearsay evidence and unsworn documents that

cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).

Finally, in evaluating the summary

judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.
II.

Anderson, 477 U.S. at 255.

Plaintiff’s Burden on Merchant Liability

Under Louisiana's Merchant Liability Act, "[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," and this duty "includes a reasonable effort to keep the
premises free of any hazardous conditions which reasonably might
give rise to damage." La.R.S. 9:2800.6(A). The Merchant Liability
Act,

a

"decidedly

plaintiff’s

burden

pro-defendant
of

proof

in

1

statute",1
trip-and-fall

establishes
claims

the

against

Welch v. Winn-Dixie Louisiana, Inc., 655 So.2d 309, 314
(La. 1995).
4

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)

2

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 notice2 of
the condition which caused the
damage, prior to the occurrence.
The merchant failed to exercise
reasonable care.
In determining

Constructive notice is defined as:
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.
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reasonable care, the absence of a
written or verbal uniform cleanup or
safety procedure is insufficient,
alone,
to
prove
exercise
of
reasonable care....
La.R.S. 9:2800.6 (emphasis added).

A plaintiff must prove each of

the three elements set forth in the Act, which clearly "places a
heavy burden of proof on plaintiffs in claims against a merchant
for damages arising out of a fall on the premises."

Jones v.

Brookshire Grocery Co., 847 So.2d 43, 48 (La.App. 2 Cir. 5/14/03).
The burden of proof under the Act never shifts to the defendant.
Melancon v. Popeye's Famous Fried Chicken, 59 So.3d 513, 515
(La.App. 3 Cir. 2011)(citing White v. Wal-Mart Stores, Inc., 699
So.2d 1081 (La. 1997)).
III.
A defendant "generally ha[s] no duty to protect against an
open and obvious hazard."

Hutchinson v. Knights of Columbus,

Council No. 5747, 866 So.2d 228, 234 (La. 2004).

"[T]o be open and

obvious, the risk of harm should be apparent to all who encounter
the dangerous condition."

Broussard v. State ex rel. Office of

State Bldgs., 113 So.3d 175, 184 (La. 2013).

"[W]hile a defendant

only has a duty to protect against unreasonable risks that are not
obvious..., the fact-finder, employing a risk-utility balancing
test, determines which risks are unreasonable and whether those

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risks pose an open and obvious hazard."

Id. at 185.3

The defendant focuses on the plaintiff's inattention:

if Mr.

Morris had turned around and looked down at the floor before he
looked up at the door displayed up high, he would have seen the box
of goods that had been placed on the floor behind him.

But "[t]he

degree to which a danger may be observed by a potential victim is
[only] one factor in the determination of whether a condition is
unreasonably dangerous."

Hutchinson, 866 So. 2d at 234.

And,

notably, "the duty to keep a proper lookout is diminished when
shelved merchandise distracts a shopper."

Perez v. Wal-Mart

Stores, Inc., 608 So.2d 1006, 1008 (La. 1992).

"[I]n a self-

service store, a patron has a diminished duty to see that which
should have been seen because his attention is presumed to be
attracted to the advertised goods on the shelves."

See Lofton v.

Hayward, 806 So.2d 877, (La.App. 4 Cir. 1/9/02)(citations omitted).
The case literature about whether pallets placed in an aisle
of a self-service store are unreasonably dangerous is mixed.

3

Four factors inform the risk-utility balancing test:
(1)
the
utility
of
the
complained-of
condition;
(2) the likelihood and magnitude of harm,
including the obviousness and apparentness of
the condition;
(3) the cost of preventing the harm; and
(4) the nature of the plaintiff's activities
in terms of its social utility or whether it
is dangerous by nature.
Id. at 184.
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On

one hand, cases support the proposition that a pallet in and of
itself "does not inherently pose an unreasonable risk of harm."
See Taylor v. Wal-Mart Store, Inc., No. 05-1346, 2006 WL 1476031
(W.D. La. May 23, 2006)("A pallet filled with merchandise in the
center of an aisle is a condition any customer would reasonably
expect to encounter, and it presents no inherent hazard to the
customer exercising reasonable care"); Reed v. Home Depot, Inc.,
843 So.2d 588 (La.Ct.App. 2003)(citation omitted)("A pallet does
not inherently pose an unreasonable risk of harm."); Ferrant v.
Lowe's Home Ctrs., Inc., 494 Fed.App'x 458, 462 n.3 (5th Cir.
2012)(noting that "courts applying Louisiana law have routinely
rejected merchant liability claims based upon the placement of a
merchant pallet").

But whether pallet placement is or is not

inherently dangerous is not to deny that, under some circumstances,
the placement of merchandise may be unreasonably dangerous.

Thus,

many cases confirm that pallets may be unreasonably dangerous in
certain circumstances, and it is up to the jury to resolve the
issue. See, e.g., Stewart v. Wal-Mart Louisiana, LLC, No. 12-1537,
2013 WL 1838578 (W.D. La. May 1, 2013)(denying merchant's motion
for summary judgment in light of fact issue as to whether the fourfoot high pallet's placement in the middle of the aisle created an
unreasonably dangerous condition); Seiss v. Lowe's Home Centers,
Inc., No. 11-1778, 2013 WL 588769 (W.D. La. Feb. 13, 2013)(denying
merchant's motion for summary judgment, finding a factual dispute

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about whether boxes were open and obvious; plaintiff claimed that
she did not see four vertically-stacked boxes on the floor of the
millworks department because she was looking upward at the moulding
as they entered the aisle); Butler v. Wal-Mart Stores, Inc., No.
08-3663, 2009 WL 1507580 (E.D. La. May 26, 2009)(Vance, J.)(denying
motion for summary judgment, finding that it would be permissible
for a jury to find that a pallet located in the middle of the aisle
and

stacked

waist-high

with

merchandise

was

unreasonably

dangerous).
The dispute here is whether Mr. Morris has raised a fact issue
regarding whether the single box of merchandise "displayed" on the
floor was an open and obvious tripping hazard. Home Depot contends
that it cannot be held liable for a condition that should be
obvious to all, and that Mr. Morris failed to heed his duty to
observe whether he had a clear pathway.

Mr. Morris counters that,

as he approached from the back of the store, he did see the twohigh stack of merchandise on the floor because that stack obscured
the single box of merchandise on the other side of the pole.

The

Court finds that this case-specific fact issue patently precludes
summary judgment; the Court cannot say as a matter of law that the
placement of the single-box of merchandise on the floor did not
create

an

unreasonably

dangerous

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tripping

hazard

under

the

circumstances.4
Accordingly, Home Depot's motion for summary judgment is
DENIED.
New Orleans, Louisiana, August 22, 2013

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

4

In so finding, the Court does not suggest that the
plaintiff will prevail at trial, only that a fact issue has been
raised. Also inherent in the setting of this case is the risky
issue of comparative negligence.
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