Robertson v. Wal-Mart Louisiana, LLC.

Filing 11

RULING granting 10 Motion for Summary Judgment. Signed by Magistrate Judge Stephen C. Riedlinger on 6/25/2013. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JASMINE ROBERTSON
CIVIL ACTION
VERSUS
NUMBER 12-429-SCR
WAL-MART LOUISIANA, L.L.C.
RULING ON MOTION FOR SUMMARY JUDGMENT
Before the court is the Motion for Summary Judgment filed by
defendant Wal-Mart Louisiana, LLC.

Record document number 10.1

No

opposition has been filed.2
This cases arises from the plaintiff’s fall at a Wal-Mart
store in Baton Rouge, Louisiana. Defendant moved for summary
judgment, supporting its motion with a Statement of Uncontested
Facts and excerpts from the plaintiff’s deposition.
Summary judgment standard and applicable law
Summary judgment is only proper when the moving party, in a
properly supported motion, demonstrates that there is no genuine
issue of material fact and that the party is entitled to judgment

1

The motion was filed by Wal-Mart Stores, Inc.
Wal-Mart
Stores, Inc. is the ultimate corporate owner of Wal-Mart Louisiana,
LLC. See record document number 1, Notice of Removal, ¶ 9. The
only defendant is, and has always been, Wal-Mart Louisiana, LLC.
The court assumes this is just a drafting error by counsel for the
defendant. In this ruling, “Wal-Mart” refers to defendant Wal-Mart
Louisiana, LLC.
2

The time for the plaintiff to file a response to the motion
has expired.

as a matter of law.

Rule 56(c), Fed.R.Civ.P.; Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510 (1986).

If

the moving party carries its burden under Rule 56(c), the opposing
party must direct the court’s attention to specific evidence in the
record which demonstrates that it can satisfy a reasonable jury
that it is entitled to verdict in its favor.
252, 106 S.Ct. at 2512.
metaphysical

doubt

as

Anderson, 477 U.S. at

This burden is not satisfied by some
to

the

material

facts,

conclusory

allegations, unsubstantiated assertions or only a scintilla of
evidence.
1994).

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

In resolving the motion the court must review all the

evidence and the record taken as a whole in the light most
favorable to the party opposing the motion, and draw all reasonable
inferences in that party’s favor.
S.Ct. at 2513.

Anderson, 477 U.S. at 255, 106

The court may not make credibility findings, weigh

the evidence or resolve factual disputes.

Id.; International

Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir.
1991), cert. denied, 502 U.S. 1059, 112 S. Ct. 936 (1992).
The

substantive

law

dictates

which

facts

are

material.

Littlefield v. Forney Independent School Dist., 268 F.3d 275, 282
(5th

Cir.

plaintiff’s

2001).
claim

The
is

Louisiana

LSA-R.S.

statute

9:2800.6,

applicable
which

sets

to

the

forth

a

merchant’s duty to persons who use its premises and the plaintiff’s
burden of proof in claims against merchants.

2

The statute provides

in pertinent part 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.
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.
It is the plaintiff’s burden to prove each element of a cause
of action under the statute.

White v. Wal-Mart Stores, Inc., 699

So.2d 1081, 1084 (La. 1997).
The Louisiana Supreme Court recognized in White, that the
constructive notice requirement found in the merchant liability
statute involves a temporal element:

3

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 of
time. 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
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.
White, 699 So.2d at 1084-85.
Because constructive notice is defined to include a mandatory
temporal element, a plaintiff relying on constructive notice under
La. R.S. 9:2800.6(B)(2) must come forward with positive evidence
showing that the damage-causing condition existed for some period
of time, and that such time was sufficient to place the defendant
on notice of its existence.

Id., 699 So.2d at 1082.

Plaintiff in a slip and fall case may use circumstantial
evidence to establish the temporal element. Blackman v. Brookshire
Grocery Co., 2007-348 (La.App. 3 Cir. 10/3/07), 966 So.2d 1185;
Henry v. Wal-Mart Stores, Inc., 99-1630 (La.App. 3 Cir. 3/1/00),
758 So.2d 327, writ denied, 00-929 (La. 5/26/00), 762 So.2d 1107.
Analysis
Plaintiff testified in her deposition the she slipped on some
grapes.

Of the approximately 15 grapes on the floor, the only one

that looked smashed was the one she slipped on. Plaintiff observed

4

nothing else on the floor.

Plaintiff has no idea how the grapes

got on the floor, and no information to suggest that any Wal-Mart
employee caused the grapes to be on the floor or was aware of the
grapes on the floor.

Plaintiff has no information to suggest how

long the grapes were on the floor before she fell.
Plaintiff

failed

to

offer

any

summary

judgment

evidence

sufficient to create a genuine dispute as to any material fact
relevant to any element of her claim under LSA-R.S. 9:2800.6.
Therefore, summary judgment for the defendant is appropriate.
Accordingly, the defendant’s Motion for Summary Judgment is
granted.
Baton Rouge, Louisiana, June 25, 2013.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

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