Ichikawa v. DSW Shoe Warehouse, Inc.
ORDER AND REASONS granting 39 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
DSW SHOE WAREHOUSE, INC., ET AL
ORDER AND REASONS
Before the Court is Defendants’ Motion for Summary Judgment (Doc.
39). For the following reasons, this Motion is GRANTED.
On December 5, 2015 Plaintiff Kathryn Ichikawa was shopping for a pair
of ankle boots at the DSW on Clearview Parkway. While browsing, she took a
step back and fell over a bench placed in the aisle between rows of shoes that
was not affixed to the floor, resulting in serious injuries. Defendants have
moved for summary judgment, arguing that the bench constituted an open and
obvious condition. Plaintiff opposes this Motion.
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).
Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.”8
LAW AND ANALYSIS
Under Louisiana law, liability predicated on negligence is governed by
the duty-risk analysis articulated by the Louisiana Supreme Court. This
analysis incorporates these five basic elements—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,
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
(3) The merchant failed to exercise reasonable care. In determining
reasonable care, the absence of a written or verbal uniform cleanup
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).
9 Pitre v. Louisiana Tech University, 673 So.2d 585, 589–90 (La. 1996).
or safety procedure is insufficient, alone, to prove failure to
exercise reasonable care.
“[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
that 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
Defendant argues that the bench over which Plaintiff tripped was open
and obvious and that Plaintiff could have avoided her fall through the exercise
of ordinary care.
Plaintiff responds in opposition, arguing that summary
judgment is precluded by genuine issues of material fact regarding “whether a
person encountering the bench would expect that (1) the bench would be
unreasonably top-heavy and unsecured and (2) the bench would be improperly
positioned in relation to the shelving.” The Court will address each in turn.
I. Whether the bench was unreasonably top-heavy
Plaintiff argues that summary judgment should be denied because the
bench was unreasonably top-heavy and should have been anchored to the
ground. She fails, however, to cite to any authority imposing such a burden on
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).
merchants placing benches in their stores. Though Plaintiff’s expert opines
that, in his opinion, the bench was unreasonably top-heavy, he does not appear
to base this opinion on any industry standard or scientific method. More
problematic, however, is plaintiff’s failure to connect any alleged design
deficiency to the accident in question. As Defendant notes, the design of the
bench might be relevant if Plaintiff had attempted to sit on the bench and
inadvertently knocked it over, or if the bench had slide out from under her as
she tried to sit down. The issue before this Court is whether or not the
placement of the bench constituted an open and obvious condition. Plaintiff
seems to argue that the top-heavy nature of the benches created an
unreasonable risk of harm. The question before the Court, however, is whether
Plaintiff, in the exercise of reasonable care, should have noted the presence of
the bench and endeavored to avoid it. Put simply, the complained-of condition
is the placement, not the composition, of the bench in question. Whether or
not the bench was top-heavy is not relevant to that specific inquiry.
II. Whether the bench was improperly positioned in relation to the
Plaintiff argues that whether or not the placement of benches in relation
to the shelving constituted an open and obvious condition is a disputed issue
of fact. In support, she relies primarily on Tramuta v. Lakeside Plaza, LLC.13
There, the court reversed a grant of summary judgment, finding that whether
the placement of a parking bumper relative to a step in a parking lot
constituted an open and obvious condition was a dispute of material fact. The
Court finds this comparison unavailing. In Tramuta, the Court found that it
168 So.3d 775 (La. App. 5 Cir. 2015).
was unclear from the record whether the added step over which the plaintiff
tripped was readily visible. In this case, however, it is undisputed that the
bench at issue was open and obvious for all to see. Indeed, Plaintiff herself
testified that she was aware of the benches in the store and would have seen it
had she turned around.
The Court finds that the instant case is
distinguishable from Tramuta.
At oral argument, Plaintiff also directed the Court to the recent
Louisiana Second Circuit Court of Appeal case of Gauthier v. Dollar Tree
Stores, Inc.14 There, a plaintiff was injured when she tripped on a box of
merchandise that was placed in the aisle of the defendant’s store, contrary to
the store’s own policy. The court reversed a grant of summary judgment in
favor of defendant, finding that there was a genuine issue of material fact as
to “whether defendant’s practice of intentionally placing boxes of merchandise
on the floor in the path of shoppers is a reasonable manner of satisfying its
statutory duty to keep the aisles and floors in a safe condition.”15 The Court
finds, however, that this matter differs in several important respects from the
situation presented in Gauthier.
Specifically, in that case, the Court
emphasized that the hazard presented violated the store’s own policy. Here,
the benches were intentionally placed to benefit the shoppers and were
certainly not in violation of any policy. Moreover, Plaintiff testified that she
was aware of the presence of such benches in the store. Accordingly, the Court
finds that the placement of the benches constituted an open and obvious
Gauthier v. Dollar Tree Stores, Inc., 50,936 (La. App. 2 Cir. 10/21/16), writ denied,
2016-2047 (La. 1/9/17).
15 Id. at *3.
For the foregoing reasons, Defendants’ Motion for Summary Judgment
is GRANTED. Plaintiff’s claims are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 13th day of February, 2017.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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