Mays v. Dolgencorp, LLC

Filing 22

ORDER and REASONS granting 14 Motion for Summary Judgment, as stated within document. Signed by Judge Kurt D. Engelhardt on 11/4/2014. (NEF: MAG-4) (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PATRICIA MAYS

CIVIL ACTION

VERSUS

NO. 14cv157

DOLGENCORP, LLC d/b/a
DOLLAR GENERAL CORPORATION

SECTION "N"

ORDER AND REASONS
Presently before the Court is Defendant's "Motion for Summary Judgment" (Rec.
Doc. 14). On the showing made,
IT IS ORDERED that Defendant's motion is GRANTED.

I. Background
Plaintiff, Patricia Mays, brought a personal injury suit arising from an alleged slip-and-fall
incident that occurred in the parking lot area outside of the Dollar General store in Marrero, LA.
(Rec. Doc. 1, Exhibit A). Mays contends that she fell after slipping on a liquid substance that had
accumulated in the parking lot. (Id.). The substance is alleged to be melted ice cream that the
manager of the Dollar General discarded in a dumpster following a power outage caused by
Hurricane Isaac. (Rec. Doc. 14-1 at p. 2). Mays suffered back and knee injuries as a result of the
fall. (Rec. Doc. 1 at p. 5). The plaintiff's children, Jacinta Brisco and Jerrlyn Mays, substituted as
parties in this matter because Patricia Mays is now deceased. (Rec. Doc. 15). Defendant,
Dolgencorp, LLC d/b/a Dollar General Corporation ("Dolgencorp") now moves for summary
judgment declaring that the plaintiff has not presented any evidence that it is liable under La. Civ.
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Code art 2317.1 and that plaintiff has shown no evidence of negligence. (Rec. Doc. 14-1).
II. Summary Judgment Standard
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment shall be
granted "if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The materiality of facts is
determined by the substantive law's identification of which facts are critical and which facts are
irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed.2d
202 (1986). A fact is material if it "might affect the outcome of the suit under the governing law."
Id.
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 summary judgment burden by merely pointing out that the
evidence in the record contains insufficient proof concerning an essential element of the nonmoving
party's claim. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct.
2548, 2554, 91 L. Ed. 2d 265 (1986); see also Lavespere v. Liberty Mut. Ins. Co., 910 F.2d 167, 178
(5th Cir. 1990). Once the moving party carries its burden pursuant to Rule 56(a), the nonmoving
party must "go beyond the pleadings and by [his] own affidavits, or by the 'depositions, answers to
interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue
for trial.'" Celotex, 477 U.S. at 324, 106 S. Ct. 2553; see also Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed.2d 538 (1986); Auguster
v. Vermillion Parish School Bd., 249 F.3d 400, 402 (5th Cir. 2001).
When considering a motion for summary judgment, the Court views the evidence in the light
most favorable to the nonmoving party, Gillis v. Louisiana, 294 F.3d 755, 758 (5th Cir. 2002), and
draws all reasonable inferences in favor of that party. Hunt v. Rapides Healthcare System, L.L.C.,
277 F.3d 757, 764 (2001). Factual controversies are to be resolved in favor of the nonmoving party,
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"but only when there is an actual controversy, that is, when both parties have submitted evidence
of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (citations
omitted). The Court will not, "in the absence of any proof, assume that the nonmoving party could
or would prove the necessary facts." See id. (emphasis in original) (citing Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 3188, 111 L. Ed.2d 695 (1990)).
Although the Court is to consider the full record in ruling on a motion for summary
judgment, Rule 56 does not obligate it to search for evidence to support a party's opposition to
summary judgment. See Fed. R. Civ. P. 56(c)(3) ("court need consider only the cited materials");
Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) ("When evidence exists in the summary
judgment record but the nonmovant fails even to refer to it in the response to the motion for
summary judgment, that evidence is not properly before the district court."). Thus, the nonmoving
party should "identify specific evidence in the record, and articulate" precisely how that evidence
supports his claims. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871, 115
S. Ct. 195 (1994).
III. Application of the Legal Standard
A. Liability Under La. Civ. Code art. 2317.1
Mays claims that Dolgencorp is liable under La. Civ. Code art. 2317.1 and that Dolgencorp
was negligent. Under art. 2317.1, "The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of
reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the
damage could have been prevented by the exercise of reasonable care, and that he failed to exercise
such reasonable care." La. Civ. Code Ann. art. 2317.1. Accordingly, a plaintiff must show that (1)
the object was in the defendant's custody, (2) a vice or defect existed, (3) the vice or defect created
an unreasonable risk of harm which caused the plaintiff's injury, (4) the owner or custodian knew
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or should have known of the defect. Player v. Baker, 42,451 (La. App. 2 Cir. 9/19/07), 965 So. 2d
984, 987. In addition to the elements listed above, a plaintiff must show that "the damage could
have been prevented by the exercise of reasonable care and that the defendant failed to exercise
reasonable care." Keller v. Monteleone Hotel, 2009-1327 (La. App. 4 Cir. 6/23/10), 43 So. 3d 1041,
1043 (La. Ct. App. 2010).
Dolgencorp argues that Mays fails to assert any evidence that Dolgencorp was the owner or
custodian of the dumpster. (Rec. Doc. 14-1 at p. 5). Mays responds asserting that the store
manager, Melynda Gilliard, admits control of the dumpster in her affidavit when she exclaims that
she discarded the ice cream in the dumpster outside of the store on September 2, 2012. (Rec. Doc.
17 at p. 2). Louisiana courts have generally held that ownership of a thing establishes a rebuttable
presumption of custody, and, in the case of non-ownership, a defendant may be found to have
custody over property when that person exercises direction and control of the thing and derives some
benefit from it. Coulter v. Texaco, Inc., 117 F.3d 909, 913-14 (5th Cir. 1997). Based on the
evidence presented, the Court finds that Mays has not shown that Dolgencorp was the owner or
custodian of the dumpster and, therefore, fails to make out an essential element of the claim under
art. 2317.1.
Notably, Mays's characterization of Gilliard's affidavit overreaches. Gilliard merely admits
that she discarded the ice cream in the dumpster on the day of the accident. (Rec. Doc. 14-4).
Gilliard goes on to declare in her affidavit that the Dollar General store neither owns nor maintains
the dumpster and that the dumpster was maintained by a company called "Progressive." (Id.). The
Court does not read Gilliard's affidavit as an admission of ownership or control, and, in fact, views
the evidence as showing the contrary. A showing of mere use of an object does not establish the
requisite exercise of direction and control of the thing. Coulter, 117 F.3d at 913-14. Mays has
failed to present any other evidence demonstrating that Dolgencorp had control over the dumpster.
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Furthermore, even if Mays could show Dolgencorp was the owner or custodian of the
dumpster, she has failed to present any evidence that the defendant knew or should have known of
the defect. As a result, Mays has failed to make out another essential element of the claim under art.
2317.1. Significantly, Mays admitted in her deposition that she had no reason to believe that any
of the Dollar General employees knew the substance was on the ground as a result of the alleged
"defect" in the dumpster. (Rec. Doc. 14-3 p. 3, Patricia Mays Deposition at p. 124). In addition,
Gilliard declares that she did not know nor had she any reason to believe that the dumpster was
defective prior to the accident. (Rec. Doc. 14-4). Mays has not presented any evidence that
indicates that a store employee knew or should have know of the defective dumpster. Therefore,
Dolgencorp is entitled to summary judgment on Mays's negligence claim under art. 2317.1.
B. Negligence
Mays next asserts that Dolgencorp was generally negligent under Louisiana law, arguing that
Dolgencorp owed a duty to its patrons and the duty was breached when an employee rid the store
of the ice, which melted and leaked from the dumpster into the parking lot causing Mays to slip and
fall. (Rec. Doc. 17). Mays suggests, "to avoid liability in this matter, defendant must assert that
dumpsters are hermetically sealed, subject that all liquids could never leak out...." (Rec. Doc. 17
at p. 3). However, Mays has the burden of proof, and under general negligence1, proprietors owe
patrons a duty to exercise reasonable care to protect them from harm at the hands of an employee
or third party. Oren v. Capstar Hotels of Slidell, Inc., No. CIV.A. 01-3193, 2003 WL 181012, at *2
(E.D. La. Jan. 23, 2003) (citing Turley v. Straughan, 694 So.2d 532, 533 (La. Ct. App.1997)). To

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The Court notes that neither party raised La. Rev. Stat. Ann. 9:2800.6 covering a merchant's liability to patrons
on the merchant's premises. As a result, the Court did not address the claims under the statute, but the Court is
nonetheless convinced that plaintiffs' claims fail under this statute as well.

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show negligence, a plaintiff must prove (1) the conduct was the cause-in-fact of the harm, (2) the
defendant owed a duty to the plaintiff, (3) the duty owed was breached, (4) the risk of harm caused
was within the scope of the breached duty. Fontenoy v. Fontenoy, 635 So. 3d 219 (La. 1994). Mays
has put forth no evidence indicating facts that Dolgencorp or any of its employees acted
unreasonably in disposing of ice cream in the dumpster or in any other manner that resulted in her
injuries. In other words, Mays has not shown a triable issue with regard to Dolgencorp's breach of
any duty owed to her. Accordingly, Dolgencorp is entitled to summary judgment on Mays's general
negligence claim.
IV. Conclusion
For the reasons stated herein,
IT IS ORDERED that Dolgencorp's motion for summary judgment (Rec. Doc. 14) is hereby
GRANTED.
New Orleans, Louisiana, this 4th day of November 2014.

________________________________
KURT D. ENGELHARDT
United States District Judge

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