Shields v. Dolgencorp, LLC
Filing
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ORDER & REASONS denying 10 Motion for Summary Judgment. Signed by Judge Eldon E. Fallon. (cml)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LATRICIA SHIELDS
CIVIL ACTION
VERSUS
NO. 16-1826
DOLGENCORP, LLC &
COCA-COLA REFRESHMENTS USA, INC.
SECTION “L”
ORDER & REASONS
Before the Court is a Motion for Summary Judgment on behalf of defendant DG,
Louisiana, LLC (“DG”). Having considered the parties’ briefs and the applicable law, the Court
now issues this Order and Reasons.
I.
BACKGROUND
This case arises out of an incident that occurred on or about February 4, 2014. On that
day, Latricia Shields (“Plaintiff”) was visiting a Dollar General Store in Slidell when a shelf fell
on her causing “injury to her person” requiring “medical attention.” (R. Doc. 1-1 at 6). Plaintiff
had previously visited that same Dollar General almost every day. On March 31, 2014, Plaintiff
filed her Original Petition for Damages naming Dolgencorp, LLC (“Dolgencorp”) as the sole
defendant. Id.
On or about April 23, 2014, Plaintiff filed her First Supplemental & Amended Petition
for Damages (“First Amended Petition”). Id. at 2. This petition substituted DG Louisiana, LLC,
(“DG”) as defendant in place of Dolgencorp and Coca-Cola Refreshments USA, Inc. (“CCR”) as
an additional defendant (together, “Defendants”) on the grounds that CCR was responsible for
maintaining and shelving drinks for DG at the store in Slidell where the alleged accident
occurred. Id. at 3.
Plaintiff sought to recover for pain and suffering, loss of enjoyment of life, loss of wages
and/or earning capacity, medical and health care expenses (past and future), legal interest,
recoverable costs, and other general and equitable relief. Defendants filed answers and
conducted some written discovery. (R. Doc. 4)
During a Discovery Conference in the state court proceeding, counsel for Plaintiff
advised defendants that the amount of Plaintiff’s claim now exceeds $75,000; specifically, in a
supplemental response to an interrogatory, Plaintiff provided that her general damages and wage
loss claim alone exceeds $80,000, plus the cost of past, present, and future medical treatment and
other damages Plaintiff seeks to recover. (R. Doc. 1 at 6-7). Accordingly, on March 3, 2016,
CCR filed a notice of removal to federal court. (R. Doc. 1).
DG filed a Motion for Summary Judgment on June 6, 2016. Plaintiff filed an opposition
to that motion on June 17, 2016, and, with leave of the Court, DG filed a reply in support of their
motion on June 21, 2016.
II.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir.1994). When assessing whether a dispute as to any material fact exists, the Court
considers “all of the evidence in the record but refrains from making credibility determinations
or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d
395, 398 (5th Cir.2008).
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Under Federal Rule of Civil Procedure 56(c), the moving party bears the initial burden of
“informing the district court of the basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex,
477 U.S. at 322. When the moving party has met its Rule 56(c) burden, “[t]he non-movant
cannot avoid summary judgment ... by merely making ‘conclusory allegations’ or
‘unsubstantiated assertions.’” Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th
Cir.2002) (quoting Little, 37 F.3d at 1075). “The mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253
(1986). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot
defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37
F.3d at 1075. A court ultimately must be satisfied that “a reasonable jury could not return a
verdict for the nonmoving party.” Delta, 530 F.3d at 399.
III.
ANALYSIS
Defendant DG seeks an entry of summary judgment against Plaintiff Shields.
Specifically, DG argues that Plaintiff cannot present evidence of two of the essential elements of
her claim that DG is responsible for the condition of the beverage cooler: the existence of a
condition that posed an unreasonable risk of harm to Plaintiff on the premises, and actual or
constructive knowledge of the risk posed. (R. Doc. 10-2 at 5).
In Louisiana, custodial liability is codified under La. C.C.P. 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
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could have been prevented by the exercise of reasonable care, and
that he failed to exercise such reasonable care.
(emphasis added). Thus, plaintiff bears the burden of proving: (1) the property that caused the
damage was in the “custody” of the defendant; (2) the property had a condition that created an
unreasonable risk of harm to persons on the premises; (3) the unreasonably dangerous condition
was a cause in fact of the resulting injury; and (4) the defendant had actual or constructive
knowledge of the risk. La. Civ. Code arts. 2317.1, 2322; Vinccinelli v. Musso, 818 So.2d 163,
165 (La. App. 1 Cir. 2/27/02), cited in Wiggins v. U.S., 2009 WL2176043, * 3 (E.D. La. 2009).
DG contests elements 2 and 4.
DG additionally relies on the expert testimony of Kevin Vanderbrook who inspected the
cooler on October 26, 2015, over a year and a half after the incident in question. (R. Doc. 10-2 at
2). Mr. Vanderbrook concluded that the cooler shelf could not have slid out of the cooler and
fallen on Plaintiff’s shoulder given the way the shelf is installed and that the width of the shelf is
greater than the width of the door. Id. at 2-3.
Plaintiff, in her Memorandum in Opposition to the Motion for Summary Judgment,
opposes DG’s motion, arguing that summary judgment is inappropriate because genuine issues
of material fact remain in this case. (R. Doc. 12-4). While the parties agree as to some general
specifications of the beverage cooler at issue, Defendant asserts various other specifications that
the Plaintiff contests, including whether the shelf was properly installed, the possibility of a shelf
sliding out of the cooler, and what would be required to remove a shelf from the cooler. Id. at 1011. Plaintiff also contests the expert analysis of Kevin Vanderbrook, including whether his
inspection can be used to prove the condition of the cooler at the time of the incident in question.
(R. Doc. 12-3 at 4). Finally, Plaintiff claims that DG mischaracterizes or misunderstands her
testimony about how the shelf fell on her shoulder. Plaintiff argues further questioning and
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clarification would clear up her testimony and demonstrate the way the shelf fell on her shoulder.
Id. at 2.
No evidence of an unreasonable risk of harm
The Plaintiff does not respond to DG’s allegation that there is no evidence that the
condition of the beverage cooler posed an unreasonable risk of harm to the Plaintiff. DG points
to the testimony of their expert witness, Kevin Vanderbrook, who opined that the shelf did not
contain a defect or pose an unreasonable risk of harm. (R. Doc. 10-2 at 6). DG notes that Plaintiff
did not submit her own expert testimony and claim her petition and deposition are insufficient to
defeat a motion for summary judgment. Despite the fact that Plaintiff did not directly address this
issue, at this time, discovery is in its early stage and witness deadlines have not yet expired.
While it is true that Plaintiff has not yet put on an expert, at this time in this litigation, it would
be imprudent to rely on the testimony of one witness who studied the cooler and declared that it
had no defect one-and-a-half years after the incident. Further information is likely required.
No evidence of actual or constructive knowledge
Plaintiff contests DG’s assertion that she provides no evidence of actual or constructive
knowledge of the risk the cooler posed to Plaintiff. Plaintiff contends that at this point in the
case, there is no way for her to know how long the cooler had been in a hazardous state, but a
factfinder can reasonably infer that it is more probable than not that the condition existed for
sufficient time that it should have been discovered and remedied. (R. Doc 12-3 at 4); Finley v.
RaceTrac Petroleum, Inc. 137 So. 3d 193 (La. App. 2 Cir. 2014). The Plaintiff argues that
whether the length of time the cooler was in this condition is sufficient for constructive notice is
a question for the factfinder. While the Court in Finley granted summary judgment for the
Defendant when the plaintiff failed to put forward evidence that the condition existed for a
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period of time sufficient to place the defendant on notice, summary judgment was granted further
along in the case after more discovery and fact-finding took place. Finding summary judgement
at this stage is premature.
Res Ipsa Loquitor
In their Reply Memorandum, DG further argues that Plaintiff incorrectly relies on Res
Ipsa Loquitur – the fact that the accident happened is sufficient to presume negligence. Res Ipsa
Loquitur is only applicable where direct evidence of negligence is unavailable. Linnear v.
CenterPoint Energy Entex/Reliant Energy, 966 So. 2d 36, 42 (La. 2007). They argue that
Plaintiff’s own testimony that the shelf did not fall until she opened the cooler, grabbed a bottle
of Vitamin Water, and then was struck on the knuckle by an unknown object, makes Res Ipsa
Loquitur inapplicable. While it is true that Plaintiff cannot rely on Res Ipsa Loquitor if other
evidence is available, the argument that Plaintiff’s actions in this case demonstrate negligence on
her part is unconvincing. Based on Plaintiff’s deposition testimony, she reached in the cooler and
something inside that cooler injured her hand. When she pulled her hand out, the shelf fell.
Nothing about this scenario is, on its face, negligent. Finally, this argument, like the two
preceding, may well be sufficient for summary judgment had more fact-finding and discovery
taken place in this case. At this stage, it is premature.
IV.
CONCLUSION
Summary judgment can only be granted if there is not genuine issue as to any material
fact. See Fed. R. Civ. Pro. 56(c). Therefore, the Court finds that summary judgment is not
appropriate at this time as the facts of the case have yet to be fully discovered. However, the
movant may re-file this motion after discovery has been completed.
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Considering the foregoing, IT IS ORDERED that the Motion for Summary Judgment
(R. Doc. 10) is DENIED.
New Orleans, Louisiana, this 24th day of June, 2016.
UNITED STATES DISTRICT JUDGE
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