Adams v. Dolgencorp, LLC
Filing
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Ruling granting Defendant's 90 Motion for Summary Judgment. Signed by Judge James J. Brady on 6/18/2013. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
BRENDA ADAMS
CIVIL ACTION
VERSUS
NO. 11-784-JJB
DOLGENCORP, LLC
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Dolgencorp, LLC’s Motion for Summary
Judgment. (Doc. 90). Plaintiff Brenda Adams has filed an opposition (Doc. 91), to which
Dolgencorp has filed a reply (Doc. 92) and a sur-reply (Doc. 97). Oral argument is not necessary.
For the reasons herein, the Court GRANTS Defendant’s Motion for Summary Judgment.
I.
Brenda Adams (“Adams”) filed this action against Dolgencorp, LLC (hereinafter “Dollar
General”) for damages for personal injuries sustained when she slipped and fell at a Dollar
General store in Baton Rouge, Louisiana. Adams asserted that she slipped on a “fluid substance .
. . that had the consistence of lotion and/or soap.” (Complaint, ¶ 5). Adams brought suit against
Dollar General, asserting that Dollar General “caused the liquid to be on the aisle, or, in the
alternative, had actual or constructive notice of the condition, prior to the incident.” (Complaint,
¶ 17).
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact.” Fed. R. Civ. P. 56(a). The movant, or party seeking summary judgment, bears
the burden of showing “that there is an absence of evidence to support the nonmoving party’s
case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To prevail on her claims under
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Louisiana law, Adams must prove all of the elements of Louisiana Revised Statute 9:2800.6. The
statute 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.
(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.
La. R.S. § 9:2800.6. 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.
Id. Additionally, Louisiana law provides that it is incumbent upon the plaintiff to prove the
existence of a dangerous condition and the defendant merchant “does not have to make a positive
showing of the absence of the existence of the condition prior” to the injury. White v. Wal-Mart
Stores, Inc., 97-0393 (La. 9/9/97); 699 So.2d 1081, 1084. The Louisiana Supreme Court found
that the statute does not permit an inference of constructive notice. Id. The plaintiff must show
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the mandatory temporal element “that the condition existed for such a period of time.” La. R.S. §
9:2800.6 (C)(1). 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.” White, 699 So.2d at 1084.
Dollar General argues that Adams is unable to prove that Dollar General employees had
actual notice of the condition or that the condition existed for such a period of time that the
employees would have discovered it in the exercise of reasonable care. Adams testified that she
did not know how or why the substance was on the floor, how long it was on the floor prior to
her fall, and she had no evidence to suggest that an employee placed it on the floor. (Doc. 90, Ex.
B). Additionally, two Dollar General employees, Yolanda Hunter and Namal Arachchige, who
were in the store at the time of the alleged incident, also testified that they had no knowledge that
the substance was on the floor or how long it had been on the floor. (Doc. 90, Ex. C & D).
Hunter speculated that the substance had not been on the floor for very long “because I was
working in that area. That’s the aisle I was working on all that day. So it was something that had
just happened.” (Doc. 90, Ex. C., at 15).
Adams argues that Hunter’s testimony creates a genuine issue of material fact as to the
issue of constructive knowledge. Adams contends that if Hunter were working in the area all
morning, there is an issue as to whether she should have known that the spill occurred. However,
as Dollar General points out, this does not create a genuine issue of material fact. The statute
provides that 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. §
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9:2800.6(C)(1). Thus, all Hunter’s testimony shows is that she did not know there was any
substance on the floor, which is not enough to help Adams carry her burden of proof.
Additionally, Adams argues that there is video footage showing the area of the spill from
when she entered the store to when she fell. Although the footage does not show how or when
the substance ended up on the floor, Adams asserts that because the video shows the existence of
the substance on the floor by the time she entered into the store, this creates a genuine issue of
material fact as to the temporal element, which requires that she show “that the condition existed
for such a period of time.” La. R.S. § 9:2800.6 (C)(1).
However, as Dollar General points out, the United States Court of Appeals for the Fifth
Circuit rejected a similar argument in Taylor v. Wal-Mart Stores, Inc., 464 F. App’x 337, 338-39
(5th Cir. 2012). In Taylor, the plaintiff produced a surveillance video that captured “roughly an
hour of footage leading up to the incident” and approximately thirteen minutes before the
plaintiff fell, “a customer shuffles her feet in the area where Taylor fell,” but there were multiple
carts and customers who passed through the area without an incident. Taylor, 464 F. App’x at
338. The Fifth Circuit, in affirming the district court’s grant of summary judgment, concluded
that the plaintiff failed to establish notice, explaining that
The video merely shows the passage of time and lacks any visual
evidence of a wet substance on the floor. The video does not show
someone or something creating the wet substance; it does not show
others slipping or avoiding the area; it shows no one making a
failed attempt to clean or secure the area. To conclude what the
plaintiff asks would require this court to draw a series of
impermissible inferences unsupported by this summary judgment
record.
Id. (citing the district court judgment).
The Court finds that the facts in Taylor are nearly identical to the facts here. The
surveillance video, which includes shots from the parking lot and the front door, does not show
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any visible substance on the floor, nor does it show how the alleged spill was created. To find
that this video surveillance shows constructive notice amounts to speculation. “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. Albertsons, Inc., 492 F.3d 328, 330 (5th Cir. 2007)
(internal quotation marks and citation omitted). Thus, the Court finds that the video does not
create a genuine issue of material fact.
Finally, the Court rejects Adams’ argument that because this Court previously denied her
motion for summary judgment (Doc. 68), finding that there were “numerous genuine issues of
material fact,” Dollar General’s motion should be denied as well because Dollar General has not
presented any new evidence.. However, as Dollar General points out, this is has no bearing on
the present motion for summary judgment because the statute at issue places the burden of proof
on the plaintiff, not the defendant, to prove the elements.
The Court finds that Adams has not met her burden of proof, and therefore, summary
judgment is warranted in favor of Dollar General.
II.
Accordingly, the Court GRANTS Defendant’s Motion for Summary Judgment. (Doc.
90).
Signed in Baton Rouge, Louisiana on June 18th, 2013.
JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
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