Farrow v. Dolgencorp, LLC

Filing 13

RULING denying 8 Motion for Summary Judgment. Signed by Judge Shelly D. Dick on 3/20/2014. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ROSALINDA FARROW

CIVIL ACTION

VERSUS

NO. 12-804-SDD-RLB

DOLGENCORP, LLC

RULING
This matter is before the Court on the Motion for Summary Judgment filed by the
Defendant, Dolgencorp, LLC (“Defendant”).1 Plaintiff, Rosalinda Farrow (“Plaintiff”), has
filed an Opposition to this motion.2 For the reasons which follow, the Court finds that the
Defendant’s motion should be denied.
I.

FACTUAL BACKGROUND
While Plaintiff was shopping in a Dollar General store in Baker, Louisiana, she

allegedly struck a box with her shopping cart as she turned from one aisle into another.
Plaintiff claims her shopping cart obstructed her view of the box, and she suffered a
physical injury as a result of this collision. The Plaintiff further claims that the Defendant
is liable for creating an “unreasonable risk of harm” by failing to keep its aisles and
passageways in a safe condition for its patrons as required by Louisiana law.
The Defendant has moved for summary judgment arguing that the Plaintiff’s
deposition testimony reveals that she was aware of stock being in the aisles prior to her

1

Rec. Doc. No. 8.

2

Rec. Doc. No. 12.

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alleged “accident.” Thus, the Defendant claims this box was an “open and obvious hazard”
for which the Defendant owed no duty to Plaintiff. Furthermore, the Defendant contends
Plaintiff’s complained-of injury caused no change in the condition for which she was already
being treated prior to this alleged accident. As such, the Defendant argues Plaintiff cannot
prove that the collision with the box was the cause-in-fact of her injuries because the
medical evidence in this case shows that Plaintiff was in the same medical condition before
and after the alleged accident.
Because factual disputes abound in this case, the Court finds that summary
judgment is not proper. The law and jurisprudence are clear that it is the jury’s role to
determine whether the box left in the aisle was “open and obvious,” an “unreasonable risk
of harm,” and whether Plaintiff’s medical condition was, or was not, exacerbated by this
alleged incident. These genuine issues of material fact preclude summary judgment in this
matter.
II.

LAW AND ANALYSIS
A.

Summary Judgment Standard

Summary judgment should be granted if the record, taken as a whole, "together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."3 The Supreme Court has
interpreted the plain language of Rule 56(c) to mandate "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,

3

Fed. R. Civ. P. 56(c); New York Life Ins. Co. v. Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir. 1996); Rogers
v. Int'l Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir. 1996).

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and on which that party will bear the burden of proof at trial."4 A party moving for summary
judgment "must 'demonstrate the absence of a genuine issue of material fact,' but need not
negate the elements of the nonmovant's case."5 If the moving party "fails to meet this initial
burden, the motion must be denied, regardless of the nonmovant's response."6
If the moving party meets this burden, Rule 56(c) requires the nonmovant to go
beyond the pleadings and show by affidavits, depositions, answers to interrogatories,
admissions on file, or other admissible evidence that specific facts exist over which there
is a genuine issue for trial.7 The nonmovant's burden may not be satisfied by conclusory
allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or a scintilla
of evidence.8 Factual controversies are to be resolved in favor of the nonmovant, "but only
when there is an actual controversy, that is, when both parties have submitted evidence
of contradictory facts."9 The Court will not, "in the absence of any proof, assume that the
nonmoving party could or would prove the necessary facts."10 Unless there is sufficient
evidence for a jury to return a verdict in the nonmovant's favor, there is no genuine issue

4
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). See also Gunaca
v. Texas, 65 F.3d 467, 469 (5th Cir. 1995).
5

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex, 477 U.S. at 323-25,
106 S.Ct. at 2552).
6

Id. at 1075.

7

Wallace v. Texas Tech Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996).

8

Little, 37 F.3d at 1075; Wallace, 80 F.3d at 1047.

9

Wallace, 80 F.3d at 1048 (quoting Little, 37 F.3d at 1075). See also S.W.S. Erectors, Inc. v. Infax, Inc., 72
F.3d 489, 494 (5th Cir. 1996).

10

McCallum Highlands v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995), as revised on denial
of rehearing, 70 F.3d 26 (5th Cir. 1995).

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for trial.11
B.

The Louisiana Merchant Liability Statute - La. Rev. Stat. Ann. § 9:2800.6

The Louisiana Merchant Liability Statute12 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. 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.
In order to prove the Defendant’s liability under Section A, Plaintiff must demonstrate
that the Defendant failed to meet its duty to use “reasonable care to keep [its] aisles,
passageways, and floors in a reasonably safe condition.”13

11

The duty imposed on a

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

12

The matter is before the Court based on diversity of citizenship; thus, the Court must apply the substantive
law of Louisiana to the facts of this case. In applying and interpreting Louisiana law, this Court looks to final
decisions of the Louisiana Supreme Court for guidance under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
13

La. R.S. 9:2800.6(a).

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merchant under the statute “includes a reasonable effort to keep the premises free of any
hazardous conditions which might reasonably give rise to damage.”14 However, a merchant
“is not the insurer of the safety of his patrons ... [and] is not liable every time an accident
happens.”15 In evaluating whether the effort taken to protect customers was reasonable,
a court must look to the specific circumstances of each case, and “the degree of vigilance
must be commensurate with the risk involved, as determined by the overall volume of
business, the time of day, the section of the store and other relevant considerations.”16
The determination of the unreasonableness of a risk is a mixed question of law and
fact that is the proper province of the jury or finder of fact.17 In determining whether a
condition presented an unreasonable risk of harm, a fact finder should “balance the
intended benefit of the thing with its potential for harm and the cost of prevention.”18 This
requires the fact finder to “decide whether the social value and utility of the hazard
outweigh[s] and thus justif [ies] its potential harm.”19
The Louisiana Supreme Court recently addressed this issue in Broussard v. State,

14

Burnett v. M & E Food Mart, Inc., 2000-350 (La.App. 3 Cir. 11/15/00), 772 So.2d 393, 396 (quoting
La.Rev.Stat. Ann § 9:2800.6(A)).
15

Hardman v. Kroger Co., 34,250 (La.App. 2 Cir. 12/6/00), 775 So .2d 1093, 1095 (citing Ward v. ITT
Specialty Risk Services, Inc., 31,990 (La.App. 2 Cir. 6/16/99), 739 So.2d 251; Tanner v. Brookshire Grocery
Co., 29,276 (La.App. 2 Cir. 4/2/97), 691 So.2d 871).
16

Id. at 1095.

17

Beckham v. Jungle Gym, 45,325 (La.App. 2 Cir. 5/19/10), 37 So.3d 564, 568.

18

Watts v. Scottsdale Insurance Company, 45,397 (La.App. 2 Cir. 6/30/10), 43 So.3d 266, 269 (citing Pitre
v. Louisiana Tech University, 95-1466 (La. 5/10/96), 673 So.2d 585).

19

Id.

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Office of State Buildings.20 In Broussard, a UPS delivery driver sustained injuries when he
admittedly and voluntarily chose to attempt to traverse a building's visibly misaligned
elevators, while maneuvering a loaded dolly (weighing approximately three hundred
pounds), by attempting to push the dolly over a one and one-half to three-inch elevation
caused by the elevator's misalignment. After his attempt was unsuccessful, he turned
around, stepped backwards into the elevator, and attempted to pull the dolly over the
elevation. “[T]he inertia created by the pull caused him to lose control of the load and
forcefully pushed him into the back wall of the elevator,” causing him to sustain a serious
back injury. The victim sued, and after a jury trial, the jury awarded him approximately one
and one-half million dollars, subject to reduction by the 38% fault the jury assigned to the
victim.21 On appeal, the appellate court reversed, finding the jury's conclusion that the
elevator offset created an unreasonable risk of harm to be erroneous on the basis that,
because the defect was open and obvious, it did not present a serious risk of harm. In
doing so, the appellate court noted that the victim could have avoided his injuries by acting
more reasonably under the circumstances.22 The Louisiana Supreme Court reversed,
holding:
We have described the question of whether a defect presents an
unreasonable risk of harm as “a disputed issue of mixed fact and law or
policy that is peculiarly a question for the jury or trier of the facts.” Reed v.
Wal–Mart Stores, Inc., 97–1174, p. 4 (La.3/4/98), 708 So.2d 362, 364
(quoting Tillman v. Johnson, 612 So.2d 70 (La.1993) (per curiam)). As a

20

2012-1238 (La. 4/5/13), 113 So.3d 175.

21

Id. at 180-181.

22

Id.

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mixed question of law and fact, it is the fact-finder's role—either the jury or
the court in a bench trial—to determine whether a defect is unreasonably
dangerous. Thus, whether a defect presents an unreasonable risk of harm
is “a matter wed to the facts” and must be determined in light of facts and
circumstances of each particular case. E.g., Dupree v. City of New Orleans,
99–3651, pp. 13–14 (La.8/31/00), 765 So.2d 1002, 1012 (citation omitted);
Reed, 97–1174 at p. 4, 708 So.2d at 364.
The Broussard court also stated: “It is axiomatic that the issue of whether a duty is
owed is a question of law, and the issue of whether a defendant has breached a duty owed
is a question of fact.23 The judge decides the former, and the fact-finder—judge or
jury—decides the latter.”24 Ultimately, the Court concluded that, “while a defendant only
has a duty to protect against unreasonable risks that are not obvious or apparent, the
fact-finder, employing a risk-utility balancing test, determines which risks are unreasonable
and whether those risks pose an open and obvious hazard. In other words, the fact-finder
determines whether defendant has breached a duty to keep its property in a reasonably
safe condition by failing to discover, obviate, or warn of a defect that presents an
unreasonable risk of harm.”25
Applying the foregoing law and jurisprudence to the facts of this case, the Court
finds that genuine issues of material fact exist which preclude a summary judgment in this
matter. While the Court recognizes its role to determine, as a matter of law, if the
Defendant owed a duty, that question depends on a determination of whether the hazard

23

Id. at 185, citing Brewer v. J.B. Hunt Transp., Inc., 09–1408, p. 14 (La.3/16/10), 35 So.3d 230, 240 (citing
Mundy v. Dep't of Health and Human Res., 620 So.2d 811, 813 (La.1993)).
24

Id.

25

Id.

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in this case was “open and obvious,” which is clearly a question for the jury. It is likewise
the jury’s role to determine whether the Defendant breached any duty to its patrons under
the law by creating an “unreasonable risk of harm” in the manner in which the stock was
allegedly left in the aisles on that day. The Court also finds that a factual dispute exists
regarding Plaintiff’s alleged damages. There is evidence in the record from which a
reasonable trier-of-fact could determine that Plaintiff’s pre-existing condition was
exacerbated by the alleged accident at the Dollar General. Thus, Defendant’s Motion for
Summary Judgment should be denied.
III.

CONCLUSION
For the reasons set forth above, the Motion for Summary Judgment26 by Defendant

Dolgencorp, LLC, is DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana, on March 20, 2014.

S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

26

Rec. Doc. No. 8.

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