Robinson v. DG Louisiana, LLC
Filing
21
ORDER AND REASONS granting 10 Motion for Summary Judgment. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAWN ROBINSON
CIVIL ACTION
VERSUS
NO: 15-5080
DG LOUISIANA
SECTION “H”
ORDER AND REASONS
Before the Court is Defendant DG Louisiana’s Motion for Summary
Judgment (Doc. 10). For the following reasons, this Motion is GRANTED.
BACKGROUND
This case was removed from the 24th Judicial District Court for the
Parish of Jefferson on the basis of diversity. Plaintiff alleges that on July 15,
2016, she slipped and fell in water and/or another foreign substance on the
floor at the Dollar General on Behrman Highway in Jefferson Parish. She
brings this suit to recover damages for her injuries.
In this Motion, Defendant argues summary judgment is warranted
because Plaintiff has failed to put forth evidence concerning Defendant’s
knowledge of the complained of condition. Plaintiff responds in opposition to
this Motion.
1
LEGAL STANDARD
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
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
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).
6 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
1
2
2
necessary facts.”7
Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.”8
LAW AND ANALYSIS
Defendant argues summary judgment is warranted in this slip and fall
case because Plaintiff cannot meet her burden of proof.
La. Rev. Stat. §
9:2800.6, which governs the burden of proof, provides, in pertinent part, as
follows:
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) 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
occurrence.
(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.
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
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).
7
3
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.
(2) “Merchant” means one whose business is to sell goods, foods,
wares, or merchandise at a fixed place of business. For purposes of
this Section, a merchant includes an innkeeper with respect to
those areas or aspects of the premises which are similar to those
of a merchant, including but not limited to shops, restaurants, and
lobby areas of or within the hotel, motel, or inn.
Plaintiff concedes that there is no evidence that Defendant had actual
knowledge of or created the complained of condition. Rather, Plaintiff relies
on a “constructive notice” theory.
In White v. Wal-Mart Stores, Inc., the
Louisiana Supreme Court provided guidance concerning the burden of proof in
such cases.9 The Court indicated that “[t]o prove constructive notice, the
claimant must show that the substance remained on the floor for such a period
of time that the defendant merchant would have discovered its existence
through the exercise of reasonable care.”10 “The statute does not allow for the
inference of constructive notice absent some showing of [the] temporal element.
The claimant must make a positive showing of the existence of the condition
prior to the fall.”11 “A claimant who simply shows that the condition existed
without an additional showing that the condition existed for some time before
the fall has not carried the burden of proving constructive notice as mandated
by the statute.”12
Plaintiff’s evidence concerning the actual presence of water on the floor
is scant at best. The record reveals that Plaintiff testified that she slipped in
small puddle of water and that it had rained earlier on the day in question.
Additionally, she admitted that she did not see the puddle prior to her fall, nor
699 So. 2d 1081 (La. 1997).
Id.
11 Id.
12 Id. at 1084.
9
10
4
did she have any knowledge regarding the length of time the puddle had been
on the floor. Indeed, the surveillance tapes from the store on the day of her fall
show no indication of any water on the floor as Plaintiff entered the store.
Plaintiff asks this Court to infer constructive notice based solely on the fact
that it had rained earlier on that day.
In support, Plaintiff relies on the 1993 case of Oalmann v. K-Mart Corp,
where the Louisiana second circuit affirmed judgment in favor of a slip and fall
plaintiff. 13 In Oalmann, the court found that the judgment was supported by
the fact that the defendant merchant had knowledge of the weather conditions
on the day in question.14 The court went on to state that, despite the fact that
“evidence does not clearly establish precisely how long the floor was wet prior
to [the] fall,” given “the volume of business conducted at [such] a large” retailer,
it was “foreseeable that the floor near the entrance would become wet, and thus
slippery, in a relatively short period of time.”15
This reliance on Oalmann is misplaced. At the outset, Plaintiff has failed
to put forth any evidence that the puddle existed for any period of time prior
to her fall. It appears to this Court that plaintiff would have the Defendant
prove the absence of the puddle.
This very issue was addressed by the
Louisiana Supreme Court in Kennedy v. Wal-Mart Stores, which held that the
legislature set forth a clear and unambiguous definition of the term
“constructive notice:”
There is a temporal element included: “such a period of time …”
The statute does not allow for the inference of constructive notice
absent some showing of this temporal element. The claimant must
make a positive showing of the existence of the condition prior to
the fall. A defendant merchant does not have to make a positive
showing of the absence of the existence of the condition prior to
630 So. 2d 911, 913 (La. App. 4th Cir. 1993).
Id.
15 Id.
13
14
5
the fall. Notwithstanding that such would require proving a
negative, the statue simply does not provide for a shifting of the
burden.16
Though the question of whether or not the period of time is sufficient to
put the merchant on notice of the condition is a question of fact, the plaintiff
must make the prerequisite showing that the condition existed for “some time
period” prior to the fall.17 This the plaintiff has failed to do.
Accordingly, Plaintiff’s failure to meet this prerequisite showing is fatal
to her claim and summary judgment in favor of Defendant is warranted.
CONCLUSION
For the forgoing reasons, Defendant’s Motion for Summary Judgment is
GRANTED.
New Orleans, Louisiana this 12th day of August, 2016.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
16
17
733 So. 2d 1188, 1191 (La. 1999).
Id.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?