Brown v. United States of America

Filing 29

ORDER AND REASONS granting 13 Motion for Summary Judgment. Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo on 7/31/2017. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

UNA BROWN

CIVIL ACTION

VERSUS

NO: 16-8954

UNITED STATES OF AMERICA

SECTION: “H”(4)

ORDER AND REASONS
Before the Court is Defendant’s Motion for Summary Judgment (Doc.
13). For the following reasons, this Motion is GRANTED.
BACKGROUND
This is a claim against the United States of America for damages caused
by the negligence of a government agency occurring on property owned and
maintained by a government agency. In her Complaint, Plaintiff alleges that
she was shopping in the commissary of the Naval Air Station in Belle Chasse
when she tripped and fell over an unmarked electrical cord extended across an
aisle.1 She brings a claim for damages pursuant to the Federal Tort Claims
Act.

The Court notes that Plaintiff now appears to contend that she tripped on the edge
of a floor mat.
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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.”2 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”3
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.4 “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.”5 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.”6 “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.”7 “We do not . . . in the absence

Fed. R. Civ. P. 56(c) (2012).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
4 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).
5 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
6 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
7 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
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of any proof, assume that the nonmoving party could or would prove the
necessary facts.”8

Additionally, “[t]he mere argued existence of a factual

dispute will not defeat an otherwise properly supported motion.”9
LAW AND ANALYSIS
Plaintiff brings this suit under the Federal Tort Claims Act, which
permits private plaintiffs to bring suits against the United States “for harm
caused by the negligent or wrongful conduct of Government employees, to the
extent that a private person would be liable under the law of the place where
the conduct occurred.”10 Because the fall that is the subject of this suit took
place in Louisiana, Louisiana law applies. Under Louisiana law, a merchant’s
liability for a trip and fall is governed by Louisiana Revised Statute § 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:
(1) The condition presented an unreasonable risk of harm to the
claimant and that risk of harm was reasonably foreseeable.

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)).
9 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
10 Boyle v. United Technologies Corporation, 487 U.S. 500 (1988).
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(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.11
“The failure to prove any of the requirements enumerated in La. R.S.
9:2800.6 is fatal to plaintiff’s cause of action.”12

Defendant argues that

Plaintiff’s claim must be dismissed because she cannot carry her burden of
proof as to each of the above-outlined elements. Specifically, Defendant argues
(1) that Plaintiff has no evidence suggesting an unreasonable risk of harm
existed on the commissary’s premises, (2) that Plaintiff has no evidence of the
commissary’s creation or notice of the alleged condition, and (3) that the
commissary exercised reasonable care over its premises. Because the Court
finds the second issue dispositive, it need not address Defendant’s remaining
arguments.
Plaintiff alleges that she slipped and fell on either a wire or a floor mat
in the commissary. In support of this contention, she provided the affidavit of
her niece, Amber Blakes, who was with Plaintiff when she fell. Blakes states
that, after Plaintiff fell, she went to examine the area to determine what
Plaintiff tripped on and found that there was a “flap or makeshift covering that
was extending across the entire aisle” and that “an edge of the covering was

The Court notes that in her briefing Plaintiff cites to Louisiana Civil Code article
2317.1, which addresses damage occasioned by ruin, vice, or defect in a thing. “Because
Plaintiff claims to have fallen on a merchant's premises, Section 9:2800.6 exclusively controls
the matter. The Court is not permitted to consider a cause of action under Article 2317.1,
not even as an alternative argument.” Guidry v. Murphy Oil USA, Inc., No. 14-00223, 2015
WL 5177569, at *4 (M.D. La. Sept. 3, 2015).
12 Bertaut v. Corral Gulfsouth, Inc., 209 So. 3d 352, 356 (La. Ct. App. 2016).
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sticking up above the floor level.”13 Absent from this testimony, and from the
record as a whole, is any evidence indicating that the allegedly dangerous
condition existed for any period of time prior to the fall or that Defendant had
actual notice of the same. To prevail on a claim of constructive notice, a
Plaintiff must prove “that the condition existed for such a period of time that
it would have been discovered if the merchant had exercised reasonable care.”14
“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 the fall.”15 “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.”16
Plaintiff points the Court to no evidence indicating that the defect in the mat
existed for any period of time prior to the fall. Indeed, to the contrary, Plaintiff
herself testified that she had navigated this area of the store on numerous prior
occasions without issue. Defendant has also submitted evidence indicating
that no other tripping incidents have occurred in this area of the commissary.
Accordingly, because the record is devoid of evidence from which a reasonable
fact finder could concluded that the alleged defect existed for any time prior to
the accident, Plaintiff’s claim must be dismissed.

Doc. 16-1.
La. Rev. Stat. § 9:2800.6
15 White v. Wal-Mart Stores, Inc., 699 So. 2d 1081, 1084 (La. 1997)
16 Id.
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CONCLUSION
For the forgoing reasons, Defendant’s Motion for Summary Judgment
is GRANTED. Plaintiff’s claims are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 31st day of July, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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