Perez v. Winn-Dixie Montgomery, LLC et al
Filing
36
ORDER AND REASONS granting Defendants' 14 Motion for Summary Judgment. Plaintiff's claims are DISMISSED with prejudice. Signed by Judge Jane Triche Milazzo. (NEF: MBN) (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRISTIAM PEREZ
CIVIL ACTION
VERSUS
NO. 18-2660
WINN-DIXIE MONTGOMERY, LLC, ET AL.
SECTION: “H”
ORDER AND REASONS
Before the Court is Defendants’ Motion for Summary Judgment (Doc.
14). For the following reasons, the Motion is GRANTED.
BACKGROUND
Plaintiff Christiam Perez claims that she injured herself in a slip-andfall inside a bathroom owned by Defendant Winn-Dixie Montgomery, LLC
(“Winn-Dixie”). Plaintiff allegedly slipped because the bathroom’s floor was wet
and the stall in which Plaintiff fell lacked hand rails that may have allowed
her to catch herself. Plaintiff initially sued Winn-Dixie and its insurer,
National Union Fire Insurance Company of Pittsburg, PA, on February 17,
2018 in Orleans Parish’s Civil District Court. Defendants removed the suit to
this Court on March 13, 2018. Defendants moved for summary judgment on
October 9, 2018. Plaintiff opposes.
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LEGAL STANDARD
“The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” 1 “As to materiality . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” 2 Nevertheless, a dispute
about a material fact is “genuine” such that summary judgment is
inappropriate “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
nonmovant 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 nonmovant on all issues
as to which the nonmovant would bear the burden of proof at trial.” 7 The Court
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FED. R. CIV. P. 56.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id. at 248.
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
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does “not . . . in the absence 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
The Louisiana Merchant Liability Statute provides a negligence cause of
action to people who suffer an injury in a business because of an unsafe
condition at the business. 10 Subsection B of the statute sets forth the elements
a plaintiff must prove to succeed on her claim. 11 The statute provides:
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. 12
Badon v. R J R Nabisco, Inc., 224 F.3d 382, 393–94 (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 LA. REV. STAT. § 9:2800.6.
11 Id. § 9:2800.6(B).
12 Id.
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A failure to make a clear showing of any one element under the statute is fatal
to a plaintiff’s claim. 13
At issue here is whether Plaintiff submitted sufficient evidence to create
a genuine dispute of material fact about whether Winn-Dixie either created or
had notice of the conditions that allegedly caused Plaintiff’s slip-and-fall. To
survive a motion for summary judgment, a plaintiff must submit “positive
evidence” that a merchant created or had actual or constructive notice of the
conditions that allegedly caused a plaintiff’s damages. 14 Subsection C of the
Merchant Liability Statute provides that “[t]he 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 the employee knew, or in
the exercise of reasonable care should have known, of the condition.” 15
Here, the only evidence Plaintiff has submitted to support the creation
or notice element of her claim is the following statement in her affidavit:
“Affiant recalls that there was a Winn-Dixie employee in the restroom at the
time of her fall.” 16 Pursuant to the unambiguous terms of the statute, this
statement alone is insufficient to show that Winn-Dixie had constructive—
much less actual—notice of the conditions that allegedly caused Plaintiff’s slipand-fall. 17 Further, Plaintiff has submitted no evidence to show that WinnDixie created the conditions that allegedly caused her slip-and-fall.
White v. Wal-Mart Stores, Inc., 699 So. 2d 1081, 1086 (La. 1997).
Duncan v. Wal-Mart Louisiana, L.L.C., 863 F.3d 406, 410 (5th Cir. 2017) (quoting White,
699 So. 2d at 1082)).
15 Id. § 9:2800.6(C)(1).
16 Doc. 21-2 at 1.
17 See Evans v. Winn-Dixie Montgomery, LLC,177 So. 3d 386, 392–93 (La. App. 5 Cir. 2015)
(holding that “the trial court was correct in granting Winn-Dixie’s motion for summary
judgment” where the only evidence introduced to show notice was “the presence of the
multiple Winn–Dixie employees in the area where the accident occurred, in the hour
leading up to plaintiff’s fall”).
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In her Opposition to Defendants’ Motion, Plaintiff argues that “time is
not ripe for summary judgment” because “Plaintiff has been working to develop
appropriate discovery materials and has been diligently pursuing discovery.” 18
This Court will generously construe this statement as a request for Rule 56(d)
relief. 19
“A motion for a continuance under Rule 56(d) is ‘broadly favored and
should be liberally granted.’” 20 “However, the party may not rely on vague
assertions but ‘must set forth a plausible basis for believing that specified facts,
susceptible of collection within a reasonable time frame, probably exist and
indicate how the emergent facts, if adduced, will influence the outcome of the
pending summary judgment motion.’” 21 Here, Plaintiff fails to make any
particularized request for discovery. 22 Accordingly, Plaintiff’s request for Rule
56(d) relief is denied.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment
is GRANTED. Plaintiffs’ claims are DISMISSED with prejudice.
New Orleans, Louisiana this 26th day of March, 2019.
Doc. 21 at 6.
See FED. R. CIV. PROC. 56(d) (providing that a court may grant appropriate relief to a party
that “shows by affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition”).
20 Skiba v. Jacobs Entm't, Inc., 587 F. App’x 136, 138 (5th Cir. 2014) (quoting Culwell v. City
of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006)).
21 Id. (quoting Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)).
22 The Court notes that Defendants propounded discovery requests in June—more than nine
months ago—and Plaintiff has yet to respond. See Doc. 34.
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____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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