Lester v. Dillard Department Stores, Inc.
ORDER AND REASONS granting 26 Motion for Summary Judgment. Plaintiff's claims are dismissed with prejudice. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DILLARD DEPARTMENT STORES, INC.
ORDER AND REASONS
Before the Court Defendant’s Motion for Summary Judgment (Doc. 26).
For the following reasons, the Motion is GRANTED.
On June 25, 2014, Plaintiff Nancy Lester was walking through the
Dillard’s Department Store at Lakeside Mall in Metairie, Louisiana. As she
was walking past a merchandise display, she tripped over the legs of the table,
causing her to fall. Plaintiff contends that the legs of the table protruded
slightly wider than the top of the table and that the tablecloth pooled at the
bottom, obscuring the legs. She avers that she sustained serious injuries as a
result of her fall. Defendant Higbe LANCOMS, LP (“Dillard’s”) moves for
summary judgment, arguing that the table constitutes an open and obvious
condition. Plaintiff opposes.
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”1 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”2
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor.3 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.”4 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.”5 “In response to a
Fed. R. Civ. P. 56(c) (2012).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).
4 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
5 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.”6 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.”8
LAW AND ANALYSIS
Defendant contends that the open and obvious nature of the table
precludes a finding of negligence. Plaintiff responds, averring that genuine
issues of material fact regarding the risk posed by the table preclude summary
judgment. Additionally, Plaintiff argues that she is entitled to an “adverse
inference” because Dillard’s destroyed relevant camera footage. The Court will
first address whether any adverse inference should apply.
I. An Adverse Inference is Not Warranted
Defendant contends that she is entitled to an adverse inference because
“Dillard’s admitted that it destroyed any video surveillance of the time around
John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
7 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
8 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
when Ms. Lester fell.” This contention is simply not supported by the record
evidence before the Court. Dillard’s has consistently stated that no video
surveillance ever existed of the accident. Plaintiff has presented no evidence
to refute this assertion, but rather would have this Court presume that
Dillard’s destroyed the video evidence because it conducted an investigation
and found that none existed. This Court declines to make such an assumption.
Accordingly, no adverse inference is warranted.
II. The Nature of the Complained of Condition Was Open and Obvious
Under Louisiana law, liability predicated on negligence is governed by
the duty-risk analysis articulated by the Louisiana Supreme Court. There are
five basic elements of this analysis—duty, breach, cause in fact, legal cause,
and actual damages.9 In addition to these elements, a merchant’s liability for
a trip and fall is further governed by La. Rev. Stat. 9:2800.6, which provides:
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:
Pitre v. Louisiana Tech University, 673 So.2d 585, 589–90 (La. 1996).
(1) The condition presented an unreasonable risk of harm to the
claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive
notice of the condition which caused the damage, prior to the
(3) The merchant failed to exercise reasonable care. In determining
reasonable care, the absence of a written or verbal uniform cleanup
or safety procedure is insufficient, alone, to prove failure to
exercise reasonable care.
Defendant argues that Plaintiff cannot demonstrate that condition of the
display constituted an unreasonably dangerous condition. “[A] defendant
generally does not have a duty to protect against that which is obvious and
apparent. In order for an alleged hazard to be considered obvious and apparent
[the Louisiana Supreme Court] has consistently stated the hazard should be
one that is open and obvious to everyone who may potentially encounter it.” 10
Additionally, “[a] pedestrian has a duty to see that which should be seen and
is bound to observe whether the pathway is clear.11 Summary judgment is
appropriate where the Plaintiff has failed to present evidence that the
complained-of condition or thing is unreasonably dangerous.12
Defendant makes an obvious yet salient point: all tables have legs.
Accordingly, it is open and obvious to all who encounter a table covered with a
tablecloth that there will be legs beneath supporting the table. Even accepting
Bufkin v. Felipe’s Louisiana, LLC, 171 So.3d 853, 856 (La. 2014).
Hutchinson v. Knights of Columbus, Council No. 5747, 866 So. 2d 228, 235 (La.
Allen v. Lockwood, 156 So. 3d 605 (La. 2015).
as true Plaintiff’s newfound allegations that the tablecloth was pooled at the
bottom does nothing to alter this conclusion, as there must be legs beneath the
table for support regardless of whether the tablecloth is pooled or straight.
Plaintiff also contends that the legs of the table were slightly wider than the
top; however, she has come forward with no evidence to indicate that such a
condition presented an unreasonable risk of harm. Plaintiff could have safely
navigated the area by avoiding the tablecloth entirely, as the tablecloth clearly
delineated the circumference of the table and its legs.13 Although the Court is
cognizant of the severity of Plaintiff’s injuries, summary judgment is granted
due to the open and obvious nature of the complained of condition.
For the foregoing reasons, Defendant’s Motion for Summary Judgment
is GRANTED. Plaintiff’s claims are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 3rd day of June, 2016.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
This fact is clearly evidenced by the photographs taken of the display on the day of
the accident. (Doc. 26-6).
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