Leonard v. Sam's West, Inc. et al

Filing 25

ORDER AND REASONS granting 17 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 1/9/13. (Susslin, Jay)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TINA LEONARD

CIVIL ACTION

VERSUS

NO: 11-846

SAM’S WEST, INC

SECTION: R

ORDER AND REASONS
Defendant moves for summary judgment. For the following
reasons, the Court grants defendant’s motion.

I.

BACKGROUND
While exiting her vehicle, Tina Leonard stepped in a

depression in a Sam’s Club concrete parking lot. She fell and
sustained injuries. Leonard’s brings claims against Sam’s Club
for her injuries. Defendant now moves for summary judgment.

II.

SUMMARY JUDGMENT STANDARD
Summary judgment is warranted when “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.” Fed. R. Civ.
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the Court considers “all of the evidence in the record but
refrains from making credibility determinations or weighing the

evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co., 530 F.3d 395, 398 (5th Cir. 2008).

The Court must draw all

reasonable inferences in favor of the nonmoving party, but
“unsupported allegations or affidavits setting forth ultimate or
conclusory facts and conclusions of law are insufficient to
either support or defeat a motion for summary judgment.” Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)
(internal quotation marks omitted).
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence that would entitle it to a directed
verdict if the evidence went uncontroverted at trial.” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991)(citation omitted). The nonmoving party can then defeat
the motion by either countering with sufficient evidence of its
own, or “showing that the moving party’s evidence is so sheer
that it may not persuade the reasonable fact-finder to return a
verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The
burden then shifts to the nonmoving party, who must, by

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submitting or referring to evidence, set out specific facts
showing that a genuine issue exists. See id. at 324.
The nonmovant may not rest upon the pleadings, but must
identify specific facts that establish a genuine issue for trial.
Id. at 325. See also Little, 37 F.3d at 1075 (“Rule 56 ‘mandates
the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.’”)(citing Celotex, 477 U.S. at 332).

III. DISCUSSION
A. Plaintiff Must Prove the Defect Was Unreasonably Dangerous
To prove a negligence claim against a merchant a plaintiff
has the burden to show (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, and (3) the merchant failed
to exercise reasonable care. La. Rev. Stat. Ann. §9:2800.6(B)
(establishing burden of proof for premises liability claims
against merchants).
To prove a claim under La. Civ. Code Ann. 2317.1, a
plaintiff must show (1) that the defendant knew, or in the
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exercise of reasonable care, should have known of the defect
which caused the damage, (2) that the damage could have been
prevented by the exercise of reasonable care, and (3) that
defendant failed to exercise reasonable care. La. Civ. Code Ann.
2317.1 (defining the basis for liability for damage caused by
things under one’s garde).
Under either theory of liability, a plaintiff must prove:
“(1) the defendant either owned or had care, custody, or control
of the thing in question; (2) the thing was a cause-in-fact of
the plaintiff’s injuries; and (3) the thing presented an
unreasonable risk of harm.” Llorence v. Broadmoor Shopping Ctr.,
Inc., 76 So. 3d 134, 137 (La. Ct. App. 2001) (quoting Bethea v.
Great Atl. & Pac. Tea Co., 22 So. 3d 1114, 1115 (La. Ct. App.
2009); Summerville v. La. Nursery Outlet, Inc., 676 So. 2d 238,
240 (La. Ct. App. 1996).
Defendant concedes that it had custody of the parking lot in
question, but argues that plaintiff cannot establish a genuine
issue of material fact as to whether the depression in the
parking lot created an unreasonable risk of harm or whether Sam’s
Club had constructive knowledge of the defect.
B. Plaintiff’s Evidence Does Not Create an Issue of Material Fact
The Louisiana Supreme Court has at least three times
addressed whether variations in the surface of sidewalks or
parking lots constitute an unreasonable risk of harm. See Reed v.
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Wal-Mart Stores, Inc., 708 So. 2d 362 (La. 1998); Boyle v. Bd. of
Supervisors, La. State Univ., 685 So. 2d 1080 (La. 1997); White
v. City of Alexandria, 43 So. 2d 618 (La. 1949). In the first two
of the cited cases, the Supreme Court found manifest error in the
trial court’s findings that uneven paving constituted an
unreasonable risk of harm. In Boyle, the Court examined a
depression of up to one-inch in a sidewalk on the LSU campus.
Boyle, 685 So. 2d at 1082. In Reed, the Court considered a
variance of up to one-half inch in an expansion joint in a WalMart parking lot. Reed, 708 So.2d at 365. The Reed Court
explained that the law does not require paved surfaces to be
smooth:
It is common for the surfaces of streets, sidewalks, and
parking lots to be irregular. It is not the duty of the
party having garde of the same to eliminate all variations
in elevations existing along the countless cracks, seams,
joints and curbs. These surfaces are not required to be
smooth and lacking in deviations, and indeed, such a
requirement would be impossible to meet. Rather, a party may
only be held liable for those defects which present an
unreasonable risk of harm.
Reed, 708 So. 2d at 363.
In determining whether a paving defect presented an
unreasonable risk of harm, the Louisiana Supreme Court also
considered the size of the defect, its location, and the accident
history of the defect. Reed, 708 So. 2d at 363-64;

Boyle, 685

So. 2d at 1083-84. The Court also considered the gravity and risk
of harm against the cost and feasibility of repair, social

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utility, and individual and societal rights and obligations.
Reed, 708 So. 2d at 363-64. In Reed, the Court observed that “the
utility of paved parking lots is clearly apparent” and that the
cost of maintaining the surface free from defects is “costprohibitive.” Id. at 365-67. Similarly in Boyle, the Court noted
that the utility of sidewalks was clear, and the cost of
repairing all similar or worse defects led to the conclusion that
the defect was not an unreasonable danger. Boyle, 685 So. 2d at
1083-84; see also White, 43 So. 2d at 620 (noting that
“maintaining [sidewalks] in perfect condition is not
necessary.”).
Furthermore, in the summary judgment context, Louisiana
courts have not hesitated to grant summary judgment in favor of
defendants in cases in which the nature of the condition is
undisputed, and plaintiff has provided no evidence of any unusual
feature of the condition suggesting that it is unreasonably
dangerous. See, e.g., Dowdy v. City of Monroe, 78 So. 3d 791,
798-799 (La. Ct. App. 2011) (“A review of the jurisprudence
reveals that the appellate courts have resolved on motions for
summary judgment the issue of whether a condition presented an
unreasonable risk of danger.”); Leonard v. Parish of Jefferson,
902 So. 2d 502 (La. Ct. App. 2005) (affirming trial court’s grant
of summary judgment where plaintiff slipped on a sidewalk height

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differential of over one inch); Reitzell v. Pecanland Mall
Assocs., 78 So. 3d 1229, 1233-34 (La. Ct. App. 2003).
C.

Defendant is Entitled to Judgment as a Matter of Law
First, considering the size of the defect in this case, it

is undisputed that the depression that plaintiff slipped on was
located in a parking space and was eight inches long. It had an
average depth of five-eighths of an inch and its deepest point
was seven-eighths of an inch.1 As noted, the Louisiana Supreme
Court has held that similar depressions and variances in walkways
were not unreasonably dangerous. See e.g., Reed, 708 So. 2d at
365 (holding that a one-half inch depression was not unreasonably
dangerous); Boyle, 685 So. 2d at 1082 (depression of one inch to
two inches did not present an unreasonable risk); White, 43 So.
2d at 620 (holding that a variance in a sidewalk of one-half inch
to two inches did not present an unreasonable risk of harm).
Second, the location of the depression and the absence of
accident history also support a finding that the condition was
not unreasonably dangerous. Defendant provided an affidavit of
the “asset protection associate” at the Sam’s Club, who stated
that Leonard’s accident was the only reported incident in
connection with the alleged defect, and that it was located in a
parking space, not a “designated pedestrian walkway or a high

1

R. Doc. 18-3 at 1; R. Doc. 17-8 at 4; R. Doc. 17-6 at
2.
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traffic area.”2 These factors suggest that the likelihood and
magnitude of potential harm were low. See Llorence, 76 So. 3d at
137 (noting that “there had been no claims, complaints, or suits
arising out of the area either before or since the plaintiff’s
claim” when holding that an area was not unreasonably dangerous
on summary judgment); Kendall v. Weingarten Realty Mgmt. Co., 769
So. 2d 171, 175 (La. Ct. App. 2000) (affirming that a pothole was
not unreasonably dangerous when it “was located in a place where
a vehicle would normally be parked”). Reitzell, 78 So. 2d at
1233; Dowdy, 78 So. at 797.
Third, under similar circumstances, the Louisiana Supreme
Court has recognized that although the cost of repair of a
particular depression might be minimal, the “cost to eliminate
all such minor defects is staggering.” Reed, 708 So. 2d at 366.
The Court further noted that the cost of “maintain[ing] such
surfaces free from defects is likely impossible, and is certainly
cost-prohibitive.” Id.; see also Boyle, 685 So. 2d at 1083-84.
Finally, as Louisiana courts have repeatedly affirmed, a
paved parking lot has social utility and is not dangerous by
nature. Kendall, 769 So. 2d at 175 (noting that courts faced with
slip and fall cases in parking lots “consider the utility of the
pave parking lot in light of the alternative-an unpaved parking
lot); Dowdy, 78 So. 3d at 799 (“Clearly, the use of the public
2

R. Doc. 17-6 at 1.
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facility by the plaintiff and all pedestrians has social
utility.”).
Accordingly, considering the factors outlined by Louisiana
law, the Court finds that plaintiff’s evidence of the depression
in the parking lot is not sufficient to create a genuine issue of
fact of whether it was unreasonably dangerous. Because the Court
finds that the plaintiff has not met her burden to prove that the
defect was unreasonably dangerous, the Court need not address the
issue of constructive notice. See Boyle, 685 So. 2d at 1084 (“Our
finding that no defect cognizable under Article 2317 existed
renders unnecessary any discussion fo constructive notice under
LSA-R.S. 9:2800.").

IV.

CONCLUSION
For the above reasons, defendant’s motion for summary

judgment is granted.

New Orleans, Louisiana, this 9th day of January, 2013.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF LOUISIANA

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