Ayo v. Walmart

Filing 23

ORDER AND REASONS granting 14 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 2/3/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

LARRY AYO

CIVIL ACTION

VERSUS

NO. 16-9704

WAL-MART

SECTION “F”

ORDER AND REASONS

Before the Court is Wal-Mart Louisiana, LLC’s motion for
summary

judgment.

For

the

following

reasons,

the

motion

is

GRANTED.
Background
This case follows a slip and fall at a Wal-Mart located on
Tchoupitoulas Street in New Orleans, Louisiana.
Larry Ayo claims that he was shopping at Wal-Mart on December
21, 2014 when he “slipped and fell on a large puddle of water.”
Mr. Ayo sued Wal-Mart Louisiana, LLC in state court, seeking
damages for his “severe bodily injury.”
lawsuit

to

this

Court,

invoking

1

the

Wal-Mart removed the
Court’s

diversity

jurisdiction.

Wal-Mart disputes its liability and now moves for

summary judgment in its favor.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The

mere argued existence of a factual dispute does not defeat an
otherwise properly supported motion.

See id.

Ultimately, "[i]f

the evidence is merely colorable . . . or is not significantly
probative," summary judgment is appropriate. Id. at 249 (citations
omitted); see also Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
2007)(internal

quotation

marks

and

citation

omitted)(“[T]he

nonmoving party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of
evidence.”).
2

Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of a claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
regard,

the

non-moving

party

must

adduce

competent

See

In this
evidence,

including but not limited to sworn affidavits and depositions, to
buttress his claims.

See Donaghey v. Ocean Drilling & Exploration

Co., 974 F.2d 646, 649 (5th Cir. 1992).

However, affidavits or

pleadings which contradict earlier deposition testimony cannot
create a genuine issue of material fact sufficient to preclude an
entry of summary judgment.

See S.W.S. Erectors, Inc. v. Infax,

Inc., 72 F.3d 489, 495 (5th Cir. 1996); Thurman v. Sears, Roebuck
& Co., 952 F.2d 128, 137 n. 23 (5th Cir. 1992).
In deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most favorable
to the nonmoving party.
(citations omitted).

Scott v. Harris, 550 U.S. 372, 378 (2007)
Although the Court must "resolve factual

controversies in favor of the nonmoving party," it must do so "only
where there is an actual controversy, that is, when both parties
have submitted evidence of contradictory facts."

Antoine v. First

Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation
marks and citation omitted).

3

II.
A.
Louisiana
plaintiff’s

Revised

burden

of

Statute
proof

in

§

9:2800.6

slip-and-fall

establishes
claims

against

merchants like Wal-Mart:
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 exercise of reasonable
care.
C.

the

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
4

of the merchant in the vicinity in which 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.
...
(Emphasis added).

B.

Here the parties dispute whether the plaintiff can meet his
burden of showing that, prior to the incident, Wal-Mart had notice
of the water on the floor.

The Louisiana Supreme Court has

interpreted this very direct statute to require the plaintiff to
prove the existence of the condition or hazard for some period of
time before the fall.

See White v. Wal-Mart Stores, Inc., 699

So.2d 1081 (La. 1997); see also Courville v. Target Corp. of Minn.,
232 Fed. Appx. 389, 391-92 (5th Cir. 2007).

If the plaintiff fails

to prove that the condition existed for some time before the fall,
“[t]he statute does not allow for the inference of constructive
notice.”

See White, 699 So.2d at 1084.

“Though the time period

need not be specific in minutes or hours,” the Louisiana Supreme
Court has instructed, the requirement that “the claimant prove the
condition existed for some time period prior to the fall” imposes
a clear and unequivocal temporal element.
5

Id. at 1084-85.

This

temporal component -- whether the time period is lengthy enough
that a merchant, exercising reasonable care, would have or should
have discovered the hazard alleged, the wet substance -- is a
question of fact, which the plaintiff must prove.

See id. at 1084.

To meet his burden, the plaintiff must make a “positive
showing of the existence of the condition” for some time period
“prior to the fall.”

Leger v. Wal-Mart Louisiana LLC, 343 Fed.

Appx. 953, 954 (5th Cir. 2009); see Babin v. Winn-Dixie Louisiana,
Inc.,

764

So.2d

37,

40

(La.

2000). 1

“‘Mere

speculation

or

suggestion’ is not sufficient to meet this burden, and courts will
not infer constructive notice for the purposes of summary judgment
where the plaintiff’s allegations are ‘no more likely than any
other potential scenario.’” Bagley v. Albertson’s, Inc., 492 F.3d
328, 330 (5th Cir. 2007)(quoting Allen v. Wal-Mart Stores, Inc.,
850 So.2d 895, 898-99 (La. App. 2d Cir. 2003)).

“A defendant merchant does not have to make a positive showing
of the absence of the existence of the condition prior to the
fall.” See White, 699 So.2d at 1084.
6
1

III.
In question is whether the wet substance persisted on the
store

floor

for

some

constructive

notice. 4

constructive

notice,

period

of

Invoking
Wal-Mart

time
the

insists

sufficient

statutory
that

the

to

support

definition
plaintiff

of
has

failed to show that the condition existed for such a period of
time that it would have been discovered had Wal-Mart exercised
reasonable care.

See La.R.S. § 9:2800.6C(1).

Considering the

summary judgment record, the Court agrees.
Wal-Mart submits that the plaintiff has failed to produce
evidence sufficient to prove that Wal-Mart either created, or had
constructive notice of the condition for some period of time
sufficient to place it on notice of the condition.
relies

on

the

In making this

assertion,

Wal-Mart

plaintiff’s

deposition

testimony.

When asked if he knew how long the water had been on

the floor, Mr. Ayo answered:
It couldn’t have been too long because the lady passed.
She wasn’t too far from me when I fell.
That’s when
they found out the water was there.

4

There is an absence of facts in the summary judgment record to
suggest, let alone establish, that Wal-Mart had actual notice of
the wet substance on the floor.
7

Putting this testimony in context, Mr. Ayo testified that he did
not see a visible trail of water on the floor of the store, did
not see any water before he slipped and fell, no one warned him
about the floor being wet before he fell; nor did he see any
cautionary

signage

in

the

area

before

he

fell.

Rather,

he

testified that water was on the floor because a “lady had water
leaking from her basket;” a fact he said he learned from others
after he fell.

Mr. Ayo testified that the lady was still in the

area when he fell, that he slipped and fell when he passed her.
According to Mr. Ayo, it appeared that the water had gotten just
gotten onto the floor when he slipped; he testified: “[i]t couldn’t
have been too long[,]” that the water was on the floor because the
lady “was pushing the basket and the basket was leaking.”

Mr. Ayo

testified that he did not think any Wal-Mart employee knew there
was any water on the floor before he fell (“The only way they found
out is when I fell”), and that employees began to clean the water
from the floor and put signs to indicate that the floor was wet
only after Mr. Ayo fell.

Mr. Ayo testified that he heard people

saying that the water had leaked from the lady’s shopping cart and
that, when he was in the parking lot after the incident, the lady
who had been pushing the leaky cart approached him, asked if he
was all right, and apologized.

8

The

plaintiff

counters

that

summary

judgment

is

not

appropriate because Wal-Mart has “yet to provide the incident
report” to him, that there remains a genuine issue of fact as to
whether

Wal-Mart

exercised

due

diligence

in

maintaining

the

premises, and that the plaintiff’s investigator is attempting to
locate an independent witness.

The plaintiff underscores his

testimony that there were employees in the immediate area of the
water that caused the fall, “thereby giving notice of the dangerous
condition.”

Wal-Mart replies that the plaintiff has never issued

any discovery to Wal-Mart; that the independent witness called
Stella Ballard has been located, but she has failed to appear for
two depositions noticed by Wal-Mart; and that the plaintiff’s
argument about employees in the immediate area of the water is
undermined by the plain text of the merchant liability statute.
The only evidence put forth by the plaintiff in support of
the constructive notice element of his claim is his testimony that
Wal-Mart employees were in the vicinity of his fall.

However, the

argument is defeated by the plain text of the merchant liability
statute. 2

2

Moreover, to accept the plaintiff’s argument would

La.R.S. § 9:2800.6C(1) states:
The presence of an employee of the merchant in the
vicinity in which the condition exists does not, alone,
constitute constructive notice, unless it is shown that
9

require the Court to make certain inferences neither permitted by
the statute, nor supported by the summary judgment record. Indeed,
indulging in the sort of speculation urged by the plaintiff is
improper and simply demonstrates that the plaintiff’s proffer
“falls short of the factual support required to establish that
plaintiff will be able to satisfy his evidentiary burden of proof
at trial.”

Babin, 764 So.2d at 40.

The plaintiff’s assertions,

quite simply, fail to rise to the requisite “positive showing of
the existence of the [wet substance]” to support his claim.
Leger, 343 Fed. Appx. at 954.

See

Because the plaintiff has not put

forth any evidence to show that Wal-Mart had actual or constructive
notice of the water on the floor at the time he slipped, there is
no factual dispute that would preclude summary judgment.
Because the plaintiff is not able to establish an essential
element of his claim as required by Louisiana, Wal-Mart is entitled
to judgment as a matter of law.

See Celotex, 477 U.S. at 322-23

(showing that the defendant’s entitlement to relief on summary
judgment can be accomplished by showing a complete absence of
record evidence to support a mandatory element of the plaintiff’s

the employee knew, or in the exercise of reasonable care
should have known, of the condition.
See also Massery v. Rouses’s Enterprises, L.L.C., 196 So.3d 757,
762 n.1 (La. App. 4 Cir. 2016)(quotation omitted).
10

claim).

The local law of merchant-liability demands more for

plaintiff to be able to withstand a claim for summary relief.
Accordingly, the defendant’s motion for summary judgment is
hereby GRANTED. 3
3
New Orleans, Louisiana, February __, 2017

____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

Insofar as the plaintiff noted in his papers that he does not
have the incident report and has not been able to locate an
“independent witness,” the Court notes that the plaintiff does not
move the Court to continue the summary judgment hearing pursuant
to Rule 56(d). Rule 56(d) continuances are not granted unless the
nonmoving party shows how the additional discovery will create
factual controversies.
Moreover, the proper way of requesting
additional time for discovery pursuant to Rule 56(d) is showing by
affidavit why facts cannot be presented to defeat the summary
judgment motion.
See FED. R. CIV. P. 56(d).
The plaintiff has
failed to suggest, beyond vague assertions, how the incident report
or the testimony by the independent witness might create a genuine
dispute as to a material fact.
11
3