Pledger v. Dollar General Store No. 871
Filing
27
ORDER AND REASONS - IT IS ORDERED that the Motion for summary judgment (Rec. Doc. 15 ) is GRANTED; and the Motion for partial summary judgment on the absence of medical causation and Motion in limine (Rec. Doc. 16 ) is DENIED as MOOT, as set forth in document. Signed by Judge Martin L.C. Feldman on 7/23/2019. (sa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHERYL PLEDGER
CIVIL ACTION
v.
NO. 18-5992
DOLLAR GENERAL STORE NO. 871
SECTION "F"
ORDER AND REASONS
Before the Court are two motions by the defendant: (1) motion
for summary judgment; and (2) motion for partial summary judgment
on the absence of medical causation and motion in limine.
For the
reasons that follow, the motion for summary judgment is GRANTED,
and the motion for partial summary judgment on the absence of
medical causation and motion in limine are DENIED as MOOT.
Background
This premises liability lawsuit arises from the plaintiff’s
allegations that she was injured after slipping on silicon packets
on the shoe aisle floor at a Dollar General store.
On June 16, 2017, Cheryl Pledger and her sister went shopping
for “beach slippers” at a Dollar General store in Houma, Louisiana.
After being in the store for about five minutes, Ms. Pledger
1
slipped and fell in the shoe aisle.
silicon packets on the floor. 1
After she fell, she saw
Ms. Pledger was on the floor for
only a few seconds and she was able to stand up on her own.
Meanwhile, Ms. Pledger’s sister went to find a Dollar General
employee.
The employee, Ms. May, checked on Ms. Pledger and then
alerted the store manager of the incident.
The manager asked Ms.
Pledger questions, including whether she wanted an ambulance (she
declined), and completed an incident report.
About 10 minutes
after her alleged fall, Ms. Pledger went home.
On January 3, 2018, Ms. Pledger sued Dollar General Louisiana,
LLC in state court, alleging that Dollar General’s negligence
caused her accident.
Alleging that the fall caused injuries to
her hands, right leg, right thigh, left elbow, and left wrist, she
seeks to recover for past and future medical expenses, physical
pain and suffering, mental pain and anguish.
DG Louisiana, LLC
removed the lawsuit to this Court, invoking the Court’s diversity
jurisdiction.
1
The defendant now moves for summary judgment.
Brandi May, the Dollar General employee working that day,
testified that she, too, saw silicon packets on the floor after
Ms. Pledger’s fall.
2
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, 586 (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 Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.
See
id.
Therefore,
"[i]f
the
evidence
is
merely
colorable, or is not significantly probative," summary judgment is
appropriate.
Id. at 249-50 (citations omitted).
Summary judgment
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
party.
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
3
competent evidence, such as affidavits or depositions, to buttress
his claims.
Id.
Hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.
Martin v.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2).
defeat
summary
judgment
"[T]he nonmoving party cannot
with
conclusory
allegations,
unsubstantiated assertions, or only a scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal
quotation marks and citation omitted).
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.
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).
II.
A.
Louisiana law governs this diversity case.
Louisiana Revised
Statute § 9:2800.6 establishes the plaintiff’s burden of proof in
slip and fall claims against merchants like Dollar General:
4
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 failure to exercise
reasonable care.
C.
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
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).
5
While a merchant owes a duty to its patrons to exercise
reasonable efforts to keep the premises free of any hazardous
conditions which might give rise to damage, merchants are not
required to insure against all accidents that could occur on the
premises. La. R.S. § 9:2800.6A; Retif v. Doe, 93-1104 (La. App. 4
Cir. 2/11/94), 632 So.2d 405, 408, writ denied, 1994-1000 (La.
6/17/94), 638 So.2d 1095.
Where, as here, the plaintiff alleges that a merchant is
liable for the injuries caused by her slip and fall, the plaintiff
has the burden to prove that:
1.
The condition presented an unreasonable risk of harm to
the plaintiff 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; and
3.
The merchant failed to exercise reasonable care.
La. R.S. § 9:2800.6B; White v. Wal-Mart Stores, Inc., 97-0393 (La.
9/9/97), 699 So.2d 1081, 1083;
Dotson v. Brookshire Grocery Co.,
04-83, p. 1 (La.App. 3 Cir. 5/12/04), 872 So.2d 1283, 1285 (“In
order to prove merchant liability in a slip and fall case, the
plaintiff
must
prove,
in
addition
6
to
the
usual
negligence
requirements (duty, breach, cause in fact, and damages) those
elements found in La.R.S. 9:2800.6(B).”).
Because the plaintiff
has the burden of proving all of the necessary elements of her
claim for negligence under the Merchant Statute, the failure to
prove each and every one “is fatal to [the plaintiff’s] cause of
action.”
White, 699 So.2d at 1086.
B.
The
defendant
seeks
summary
relief
on
two
independent
grounds: (1) there is no evidence that Dollar General created, or
had actual or constructive notice of the condition which caused
the damage, prior to the occurrence; and (2) the plaintiff has
offered no evidence of medical causation.
The Court first considers whether the plaintiff can meet her
burden of showing that, prior to the incident, Dollar General had
constructive notice of the silicon packets on the floor. 2 Invoking
the statutory definition of constructive notice, Dollar General
submits that the plaintiff has failed to show that the silicon
packets existed on the floor for such a period of time that it
2
There are no facts in the summary judgment record to suggest,
let alone establish, that Dollar General created or had actual
notice of the condition.
The plaintiff speculates that Dollar
General created the condition, but she fails to point to any record
evidence to support her theory.
7
would have been discovered had Dollar General exercised reasonable
care.
See
La.R.S.
§
9:2800.6C(1).
Considering
the
summary
judgment record, the Court agrees.
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, 39192 (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.”
White, 699 So.2d at 1084.
See
“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.
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, (here, silicon packets) -- is a
question of fact, which the plaintiff must prove.
See id. at 1084.
To meet her burden, the plaintiff must make a “positive
showing of the existence of the condition” for some time period
8
“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). 3
“‘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)).
Dollar General submits that the plaintiff has failed to show
that the condition existed for such a period of time that it would
have been discovered had Dollar General exercised reasonable care.
To support this assertion, Dollar General points to the plaintiff’s
testimony that she does not know how the silicon packets came to
be on the floor of the shoe aisle.
Dollar General also contends
that the video footage of the incident does not indicate that
Dollar General had constructive notice of the presence of silicon
packets on the floor of the aisle where Ms. Pledger fell.
3
And,
“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.
9
thus, Dollar General submits, there is no evidence in the record
that would show that Dollar General had constructive notice. 4
Ms. Pledger counters that Ms. May’s testimony establishes
that a hazardous condition existed on the floor before the incident
and the video supports that Dollar General had constructive notice.
But a review of both Ms. May’s testimony and the video confirms
only
that
the
plaintiff
has
offered
no
evidence,
beyond
argumentative speculation, to support her burden to establish that
Dollar General had constructive notice of the packets on the floor
before she fell.
The plaintiff points to nothing in the record that might
indicate who caused the silicon packets to be on the floor, or how
long they were there before she fell.
Contrary to the plaintiff’s
arguments, Ms. May’s testimony does not establish that the packets
were on the floor before the incident.
Ms. May testified that she
saw silicon packets on the floor after the incident occurred.
She
testified that, in the past, customers have taken shoes out of
boxes, causing silicon packets to end up on the floor.
However,
Ms. May testified that she had no information regarding how the
silicon packets got on the floor on the date of Ms. Pledger’s fall.
4
The summary judgment record contains a short video, less than
five minutes in duration, showing some period of activity before
Ms. Pledger’s slip and fall.
10
In fact, Ms. May testified that she did not know how long the
silicon packets had been on the floor before Ms. Pledger fell.
Nor does the video support the plaintiff’s speculative theory
that Dollar General had constructive notice.
show
the
allegedly
hazardous
condition,
the
The video does not
silicon
packets.
Where, as here, prior to the incident, an alleged condition is not
visible on a videotape, no employee is shown trying to clean or
secure the area, and customers appear to (without incident) pass
through the area where the victim fell, the video footage is
insufficient to establish the temporal component of constructive
notice. Taylor v. Wal-Mart Stores, Inc., 464 F. App’x 337, 338-39
(5th Cir. 2012).
As in Taylor, prior to Ms. Pledger’s fall,
silicon packets are not visible on the floor in the video, which
shows a customer walking through the same aisle prior to Ms.
Pledger’s fall.
The plaintiff has failed to make a positive
showing that Dollar General should have known that the silicon
packets were present on the floor before her fall. 5
5
The plaintiff also argues that Dollar General failed to conduct
inspections of the aisles and that this lack of inspection policy
informs the constructive notice element of her claim.
But the
plaintiff misapprehends her burden.
In addition to proving
constructive notice, the plaintiff must also prove that Dollar
General failed to exercise reasonable care. Notably, “the absence
of a . . . cleanup or safety procedure is insufficient, alone, to
prove failure to exercise reasonable care.” La. R.S. § 2800.6B(3).
Because the plaintiff has failed to produce any evidence indicating
11
Because the plaintiff is not able to establish an essential
element of her claim as required by Louisiana, Dollar General is
entitled to judgment as a matter of law.
See Celotex, 477 U.S. at
322-23 (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 claim).
On this record, there is simply no witness testimony or other
positive evidence regarding the length of time the silicon packets
may have been on the floor prior to Ms. Pledger’s fall.
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. 6
The plaintiff’s claims are hereby dismissed with
prejudice.
New Orleans, Louisiana, July 23, 2019
_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
how long the silicon packets had been on the floor prior to the
accident, or that Ms. May should have known they were there, Dollar
General is entitled to judgment as a matter of law dismissing her
merchant liability claim.
6 General Dollar’s motion for partial summary judgment regarding
medical causation is DENIED as moot.
12
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