Blake v. Wal-Mart Louisiana, LLC

Filing 23

RULING denying 13 Motion for Summary Judgment. Signed by Magistrate Judge Docia L Dalby on 12/15/2011. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ASHLEY BLAKE

CIVIL ACTION

VERSUS

NUMBER 10-697-DLD

WAL-MART LOUISIANA, LLC

CONSENT CASE

RULING
This slip and fall suit is before the court on defendant’s motion for summary judgment
(rec. doc. 13). The motion is opposed by plaintiff (rec. doc. 16). The court exercises diversity
jurisdiction over this matter based on 28 U.S.C. §1332.
Factual Background
On March 10, 2010, at 9:30 a.m., plaintiff Ashley Blake (Blake) was shopping in the dairy
area of the Wal-Mart store located at 9350 Cortana Place, Baton Rouge, Louisiana, with coworkers and students with whom she worked (rec. docs. 1-1, 13-1). According to the petition,
plaintiff slipped and fell on a liquid substance on the floor that is believed to be dish washing
liquid. Id. As a result of the slip and fall, plaintiff alleges that she suffered “severe and disabling
injuries” including, but not limited to injury to her person, mental pain and suffering, loss of
enjoyment of life, medical expenses, and loss wages.1 Id. Plaintiff brought suit against

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Plaintiff testified in her deposition that at the time of the accident, she maintained two jobs, which
she lost because of her inability to work due to her injuries. (rec. doc. 1) Additionally, plaintiff testified that she
had played semi-professional women’s basketball in the summer of 2009, and was in line to sign a contract
to play professional basketball in Europe in the summer of 2010, which would have paid her $4,000 per month
for 9 months, and as a result of this accident, she was unable to play professional basketball. Id. Based on
this information, defendant alleges in the notice of removal that plaintiff’s claimed loss of earnings total
$85,000. Id.

defendant in the 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana,
alleging that defendant Wal-Mart’s negligence caused her accident and resulting injuries.2 Id.
Summary Judgment Standard
Summary judgment shall be granted when there are no genuine issues as to any
material facts and the moving party is entitled to a judgment as a matter of law. Federal Rule
of Civil Procedure 56. Summary judgment is appropriate against plaintiff herein, on a properly
supported defense motion, if she fails to make an evidentiary showing in opposition to the
motion sufficient to establish the existence of an element essential to her claim. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In opposing
the motion, plaintiff may not rest on the mere allegations of her pleadings, but rather must come
forward with "specific facts" showing that there is a “genuine” issue for trial. Matsushita Electric
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538
(1986); Fed.R.Civ.P. 56(e). An issue as to a material fact is “genuine” if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

The non-movant's

evidence is to be believed for purposes of the motion and all justifiable inferences are to be
drawn in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, at 255.
The substantive law dictates which facts are material. Littlefield v. Forney Independent
School Dist., 268 F.3d 275, 282 (5th Cir. 2001). The Louisiana statute applicable to plaintiff’s
slip and fall claim is La. R.S. 9:2800.6.

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Plaintiff alleges that defendant Wal-Mart was negligent in failing to maintain a safe environment for
patrons of its building, creating an unreasonably dangerous condition on the floor of the store, failing to
exercise reasonable care and diligence in the discovery of the foreign substance on the floor, failing to provide
adequate safety/clean-up measures to prevent accidents, failing to take measures to ensure the safety of
others, failing to warn patrons of the unreasonably dangerous condition, and failing to implement adequate
safety measures (rec. doc. 1-1).

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Arguments of the Parties
Defendant Wal-Mart moves for summary judgment arguing that plaintiff is unable to meet
her burden of proof under La. R.S. 9:2800.6. Specifically, defendant argues that plaintiff is
unable to prove that defendant “either created or had actual or constructive notice of the
condition which caused the damage, prior to the occurrence” (rec. doc. 13). In support of its
motion, defendant offers the deposition testimony of plaintiff and two of her co-workers, Coach
Eric Holden and Shelley Wilson, to show that plaintiff is unable to point to facts or evidence to
establish the constructive notice element of her claim.
Plaintiff responds by arguing that summary judgment is not appropriate in this matter
because issues of fact remain with respect to whether defendant had constructive notice of the
substance on the floor prior to the fall, and specifically whether the substance was on the floor
for such a period of time that defendant should have noticed the substance and cleaned it up,
whether defendant’s employees properly followed safety/inspection procedures and should
have noticed the substance on the floor, whether defendant’s employee who was working in the
vicinity of the substance should have noticed the substance and cleaned it up, and whether
defendant had actual notice of the substance and failed to clean it up. In opposition to the
motion for summary judgment, plaintiff offers video surveillance of the area prior to and after
the accident, photos of the spill, a statement by the manager which indicates that the spill
consists of droplets for approximately 40 feet through the store, and defendant’s policies and
procedures for conducting “safety sweeps” and clean-up procedures, all of which, plaintiff
argues, prove that defendant had constructive notice of the spill.
Discussion
Because this matter is before the court based on diversity jurisdiction, this court is bound
to apply federal procedural law and Louisiana substantive law. Erie R. Co. V. Thompkins, 304

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U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Louisiana Revised Statute 9:2800.6 governs a
negligence action against a merchant for damages resulting from injuries sustained in a slip and
fall accident. Kennedy v. Wal-mart Stores, Inc., 733 So.2d 1188, 1190 (La. 1999). Under
paragraph A of that statute, 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. The duty includes a reasonable effort to keep the premises free of any hazardous
conditions that reasonably might give rise to damages. La. R.S. 9:2800.6.
The plaintiff’s burden of proof is set forth in paragraph B, which provides as follows:
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.
La. R.S. 9:2800.6(B)(emphasis added).
With respect to the second element above, i.e., whether defendant had actual or
constructive notice of the condition that allegedly caused plaintiff to slip and fall, the definitions
section of La. R.S. 9:2800.6 defines constructive notice as follows:

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(C)(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.
La. R.S. 2800.6(C)(1) (emphasis added).
A plaintiff must make a “positive showing” of the existence of the condition prior to the
fall. Babin v. Winn-Dixie Louisiana, Inc., 764 So.2d 37, 40 (La. 6/30/00), citing White v. WalMart Stores, Inc., 699 So.2d 1081 (La. 9/9/97). The merchant who is sued, on the other hand,
is not required to make a positive showing of the absence of the existence of the condition prior
to the fall. Id. The Louisiana Supreme Court has held that the phrase “such a period of time,”
as used in Paragraph C(1), constitutes a temporal element that must be shown by a plaintiff in
a slip in fall case. White v. Wal-Mart Stores, Inc., 699 So.2d at 1184; see also Babin v. WinnDixie Louisiana, Inc., 764 So.2d at 40; Kennedy v. Wal-Mart Stores, Inc., 733 So.2d 1188, 1190
(La. 4/13/99). La. R.S. 9:2800.6 does not allow for the inference of constructive notice absent
some showing of this temporal element. Id.
The Louisiana Supreme Court in White v. Wal-Mart Stores, Inc., explained the temporal
element as follows:
Though there is no bright line time period, a claimant must show that “the
condition existed for such a period of time ...” Whether the period of time is
sufficiently lengthy that a merchant should have discovered the condition is
necessarily a fact question; however, there remains the prerequisite showing of
some time period. 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

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statute. Though the time period need not be specific in minutes or hours,
constructive notice requires that the claimant prove the condition existed for
some time period prior to the fall. This is not an impossible burden.
699 So.2d at 1084-1085.
The plaintiff may rely on circumstantial evidence to meet this burden and to show that
it is more probable than not that the condition existed for some time prior to the accident.
Davenport v. Albertson’s, Inc., 774 So.2d 340, 343 (La. App. 3rd Cir. 2000). Eye witness
testimony that the condition existed prior to the accident is not necessary. Id. Whether the
period of time is sufficiently lengthy that a merchant should have discovered the condition is a
question of fact, which precludes summary judgment. See Dufour v. E-Z Serve Convenience
Stores, Inc., 731 So.2d 915 (La. App. 5th Cir. 1999), citing White, supra; Barton, supra; see also
Walthall v. E-Z Serve Convenience Stores, Inc., 988 F.Supp. 996 (E.D. La. 1997).
Defendant relies on deposition testimony to show that neither plaintiff nor any witness
has information concerning how long the dish washing liquid had been on the floor prior to the
accident (rec. doc. 13, Exhibits A-C). In opposition, plaintiff offers various evidence to prove
that the dish washing liquid was on the floor for at least 15 minutes prior to the accident. For
example, plaintiff offers photos of the spill and the store manager’s statement wherein he
identifies the substance as dish washing liquid and acknowledges that there were “droplets from
isle 13 to and around the bunker, approximately 40 feet” (rec. doc. 16-2, Exhibits B-C).
Additionally, plaintiff offers video surveillance from 9:22 a.m. to 10:22 a.m., which includes the
time of plaintiff’s fall at approximately 9:56 a.m. (rec. doc. 20). The video shows an employee
working in the area where plaintiff slipped and fell prior to and after the accident occurred.
Plaintiff also offers several of defendant’s manuals/documents that outline procedures for

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conducting “safety sweeps” on a “regular basis” to identify potential spills and procedures for
clean-up (rec. doc. 16, Exhibits E-H, p. 163, “Slip, Trip, and Fall Guidelines”).
The photos of the spill and the manager’s statement identifying the substance as dish
washing liquid prove that there was a substance on the floor of the store at the time of plaintiff’s
accident. The video surveillance shows the area of the store where the accident occurred, the
dairy area, for 15 minutes prior to the accident. The video surveillance does not contain events
indicating that a spill occurred in the 15 minutes prior to plaintiff’s fall. Further, the video shows
numerous shoppers in the dairy area during the 15 minutes prior to plaintiff’s accident, but there
is only one shopper who travels in the path of the dish washing liquid - from isle 13 to and
around the bunker, approximately 40 feet. Thus, based on the evidence produced by plaintiff
and taking all justifiable inferences in her favor, a reasonable jury could find that the dish
washing liquid was spilled prior to the beginning of the surveillance video and, therefore,
remained undetected on the floor for some period of time before the accident. Plaintiff has
carried her burden of showing that the dish washing liquid was on the floor for “some period of
time,” but issues of fact remain as to exactly how long the dish washing liquid was on the floor
and whether that period of time is sufficiently lengthy that it would have been discovered if
defendant had exercised reasonable care.
The video also shows one of defendant’s employees (stock clerk) working in the vicinity
of the accident prior to and after the accident occurred. Plaintiff relies on the procedures
outlined in defendant’s safety manuals establishing that defendant’s employees are required
to inspect the floors via a “safety sweep” on a “regular basis,” to support her argument that the
stock clerk (and, therefore, Wal-Mart) had constructive notice of the spill. The presence of the

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stock clerk in the vicinity of the accident, alone, does not prove that defendant had constructive
notice. La. R.S. 9:2800.6(C)(1). It appears from the video, however, that the stock clerk could
see at least a portion of the 40 feet of flooring speckled by the spill. Further, it appears that
neither the stock clerk nor any other Wal-Mart employee performed a safety sweep during the
15 minutes prior to plaintiff’s accident. Genuine issues of material fact remain with respect to
whether the stock clerk knew or in the exercise of reasonable care, should have known, that
dish washing liquid was on the floor prior to the accident. Considering the safety sweep
procedures adopted by defendant and the presence of the Wal-Mart employee in the vicinity
of the accident, and taking all justifiable inferences in plaintiff’s favor, a reasonable jury could
find that Wal-Mart had constructive notice of the spill.
Thus, the court finds that genuine issues of material fact precluding summary judgment
remain with respect to whether defendant had constructive notice of the dish washing liquid on
the floor prior to plaintiff’s fall. Accordingly,
IT IS ORDERED that defendant’s motion for summary judgment (rec. doc. 13) is
DENIED.
Signed in Baton Rouge, Louisiana, on December 15, 2011.

MAGISTRATE JUDGE DOCIA L. DALBY

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