Johnson v. The Cato Corporation et al

Filing 49

ORDER and REASONS denying 31 Motion for Summary Judgment; denying 10 Motion for Summary Judgment. FURTHER ORDERED that the Request for Oral Argument 13 is DENIED as moot. Signed by Judge Stanwood Duval, Jr on 10/16/2012. (MM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JAQUELINE JOHNSON

CIVIL ACTION

VERSUS

NO. 12-25

THE CATO CORPORATION, ET AL.

SECTION “K”(3)

ORDER AND REASONS
Before the Court are a Motion for Summary Judgment (Doc. 10) and the Supplement to
Motion for Summary Judgment (Doc. 31) filed by The Cato Corporation (“Cato”) seeking the
dismissal of Jaqueline Johnson’s claims arising out of her having tripped and fallen on a clothing
rack at Cato’s Fashion on December 15, 2010.1 Cato maintains that it did not have actual or
constructive knowledge of the alleged unreasonably dangerous condition, that the clothing rack
in question did not contain any defects or vices and that the suit is prescribed. Plaintiff responds
that summary judgment must be denied because defendant did have actual or constructive
knowledge of a dangerous condition and therefore is liable for plaintiff’s damages. Having
reviewed the pleadings, memoranda, exhibits, deposition testimony and the relevant law, the
Court finds that there are material questions of fact which preclude summary judgment and that
the case is not prescribed.

Background
Jaqueline Johnson is a mail carrier who had delivered mail to the premises involved
daily. On this day, she found clothing that she wanted to purchase and had asked a salesclerk to

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The date of the accident was alleged to have been December 11, 2010; however, subsequent filings make it
clear that the accident occurred on December 15, 2010. (Doc. 28, Supplement to Motion for Summary Judgment,
Exh. A, Customer Accident Report dated 12-15-2010).

hold the pieces she intended to buy. Returning later that day with her daughter, she entered the
store, proceeded down an aisle towards a dressing room accompanied by a salesclerk with whom
she was conversing. As she approached the dressing rooms, she allegedly tripped on the leg of a
clothes rack that protruded into the aisle. Plaintiff contends that the rack was placed behind a
wall in the entry way leading to the fitting rooms. Specifically, when asked at her deposition,
where was the clothing rack positioned, she responded, “It was sticking out. I guess they
should’ve turned it maybe to fit in the corner, but is was sticking out from the corner that was
supposedly have been in right before I got to the entrance of the door to the dressing room.”
(Doc. 34, Exh. 1, Dep. of Johnson at 31; see also pp. 47-48).

Her daughter attested in an

affidavit that the rack was not in the aisle. Rather the clothing rack “was behind a wall, with the
bottom legs sticking out and that it wasn’t easily visible in the aisle.” Plaintiff’s daughter also
stated that she saw an associate move the clothing rack and place items on the rack prior to her
mother falling. (Doc. 34, Exhibit 1 at 17). Ms. Johnson seeks damages for her injuries.

Standard for Motion for Summary Judgment
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment
should be granted "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." The party moving for summary
judgment bears the initial responsibility of informing the district court of the basis for its motion,
and identifying those portions of the record "which it believes demonstrate the absence of a
genuine issue of material fact." Stults v. Conoco, 76 F.3d 651 (5th Cir.1996), citing Skotak v.
Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.), quoting Celotex Corp. v. Catrett, 477

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U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). When the moving party has
carried its burden under Rule 56, its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. The nonmoving party must come forward with
"specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Tubacex,
Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995).
“A genuine issue of material fact exists ‘if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’ ” Pylant v. Hartford Life and Accident
Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007) quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment evidence must
be “viewed in the light most favorable to the nonmovant, with all factual inferences made in the
nonmovant’s favor.” Bazan ex rel Bazan v. Hildago County, 246 F.3d 481, 489 (5th Cir. 2001),
citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513.
[C]onclusory statements, speculation, and unsubstantiated assertions cannot
defeat a motion for summary judgment. The Court has no duty to search the
record for material fact issues. Rather, the party opposing the summary judgment
is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.
RSR Corporation v. International Insurance Company, 612 F.3rd 851,857 (5th Cir. 2010).

Premises Liability
As this Court sits in diversity jurisdiction, the Court must apply the Louisiana statute
which establishes the liability of a retail merchant who 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.”

La. Rev. Stat. 9:2800.6(A). Subsections B and C provide:
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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 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.”
La. Rev. Stat. 9:2800(B) and (C)(1).
The relevant inquiry was succinctly stated by Judge Barbier in Latter v. Sears Roebuck
and Co., 2004 WL 242479 (E.D.La Feb. 5, 2004), as follows:
In determining whether a particular condition creates an “unreasonable
risk of harm,” a balancing test is employed. The fact finder must balance the
gravity and risk of harm against the social utility and the cost to repair. Stated in
another way, “the trier of fact must decide whether the social value and utility of
the hazard outweigh, and thus justify, its potential harm to others.” Joseph v. City
of New Orleans, 842 So.2d 420, 423 (La. App. 4th Cir. 2003).
Id. at *3. In Latter, the central issue at trial was the exact arrangement of a folding table in
relation to a nearby clothing rack at the time of the plaintiff’s fall. The plaintiff there testified
that as she was walking down the aisle in question, looking at a rack of ladies jeans, she saw a

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folding table, but believed that she had sufficient space to pass between the table and the
clothing rack. Nonetheless she tripped on a protruding leg of the table as she attempted to pass
by it. The Court applying the above-noted balancing test, found that the folding table’s position,
protruding into the passageway and too close to the clothing racks, created a hazardous condition
which had been created by Sears, and that the table’s social utility was not outweighed by the
risk of serious injury. Ultimately the court there found the defendant had created a hazardous
condition and was liable for plaintiff’s injuries, but found that plaintiff had been 25%
comparatively at fault.
With this legal framework in mind, clearly, a genuine issue of material fact exists as to
the location of the clothes rack and whether that position was dangerous. The Court has
reviewed the entirety of the deposition of Jacqueline Jones and remains unable to determine
precisely where the rack was located. While plaintiff stated that the rack “was in the aisle,” and
that it was in plain view, that testimony conflicts with her own description of where the accident
occurred at page 31 of her deposition. She states, “I guess they should’ve turned it maybe to fit
in the corner, but it was sticking out from the corner that is was supposedly have been in right
before I got to the entrance of the door to the dressing room.” (Doc. 34, Dep. of Johnson at 31).
The confusion is exacerbated by the undated affidavit of her daughter who was present at
the accident in which she maintains that the rack was hidden from view because of its allegedly
being behind a wall with its leg protruding in the aisle leading to the dressing room. That
testimony conflicts with the affidavit of Janet Severan who was a Cato employee and who was
also a witness of the accident. She avers that the rack was “on the left side of the fitting room
entrance” which was to the left side of Cato’s check out register. This statement leaves the

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impression that the rack may not have been behind a wall. Then, there is the accident report
which states, “Fell over clothes rack next to fitting room lost her balance and slid on the floor.”
(Doc. 31, Exh. “A” , Accident Report). This statement could indicate that indeed the rack may
have been placed inside of the entrance to the fitting room area. Ms. Johnson also stated that
where it happened was on “the edge of the carpet and the hard part of the floor.” (Dep. of
Johnson at 38). In a follow-up question, however, Ms. Johnson affirmed that “this was situated
right before where the carpet meets a more hard surface.”
Regardless of whether the rack were hidden or not, under the analysis in Latter, the Court
cannot find as a matter of law that the condition was not dangerous. All of this testimony taken
in a light most favorable to plaintiff could lead a reasonable fact finder to return a verdict for the
nonmoving party as was demonstrated in the Latter case. A merchant is required to avoid
creating a dangerous condition and placing a rack in the entrance way to a dressing room where
the foot of that rack allegedly protrudes could be said to be a dangerous condition. Furthermore,
there is evidence presented that Cato through an employee, just as in the Latter case, may have
created the hazardous condition.2 Thus, summary judgment must be denied as to liability.

Prescription
On September 28, 2012, after the initial motion for summary judgment had been filed,
defendant raised the issue of prescription based on its contention that the accident occurred on

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While the Court notes that counsel for defendant sought to strike this affidavit as it was undated, the Court
finds that its primary concern is to find the truth. Given the state of the law as delineated in Latter and the confusion
and lack of clarity of plaintiff’s deposition testimony, the Court remains convinced that summary judgment is
inappropriate.

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December 15, 2010 and that suit was filed a year and one day later on December 16, 2010.
Thus, Cato contends that this suit is prescribed under the liberative prescription period of one
year as provided by La. Civ. Code 3492 for delictual actions. Its contention is based on the date
stamp of the filed petition being that of the 16th of December.
Plaintiff has responded by presenting the Court with a copy of a FAX cover sheet dated
December 14, 2011, from Kathy Waguespack, the Clerk of Court for West Baton Rouge Parish
concerning a suit captioned “Jaqueline Johnson vs. the Cato Corp, et al.” A line denominated as
“fax charges” is checked with the hand written statement “new suit/fax filing fees $300." This
sheet is machine date stamped “Dec 14 2011 08:52 am.” from the “WBR CLERK OF COURT.”
Clearly, the state court system provides for the filing of any paper in a civil action by
facsimile transmission. La. Rev. Stat. § 850. In addition, the statute states unequivocally,
“Filing shall be deemed complete at the time that the facsimile transmission is received and a
receipt of transmission has been transmitted to the sender by the clerk of court.” La. Rev. Stat. §
850(A). The above-noted FAX cover sheet appears to fit within the statutory scheme.
Subsection B of the same statute then provides that within five days thereafter, exclusive of legal
holidays, the filing party must forward to the clerk (1) the original signed document, (2) the
applicable filing fee, if any, and (3) a transmission fee of five dollars. La. Rev. Stat. § 850(B).
The petition is date stamped December 16, 2010. Clearly then plaintiff’s counsel adhered to the
provision of this statute. The suit was timely filed on December 14, 2011 and “clocked in” on
December 16, 2011. Had payment not been made, the Court assumes that this matter would not
have been docketed and its removal by defendant would not have been possible. Accordingly,

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IT IS ORDERED that the Motion for Summary Judgment (Doc. 10) and the Supplement
to Motion for Summary Judgment (Doc. 31) are DENIED.
IT IS FURTHER ORDERED that the Request for Oral Argument (Doc. 13) is
DENIED as moot.
New Orleans, Louisiana, this 16th day of October, 2012.

STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT COURT JUDGE

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