Ray v Stage Stores, Inc. et al

Filing 49

RULING granting 20 the Motion for Summary Judgment filed by defendants, Specialty Retailers, Inc. and Stage Stores, Inc. is granted. A separate final judgement will be issued. Signed by Magistrate Judge Stephen C. Riedlinger on 8/12/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

VIRGIE RAY
CIVIL ACTION
VERSUS
NUMBER 14-631-SCR
STAGE STORES, INC., ET AL
RULING ON MOTION FOR SUMMARY JUDGMENT
Before the court is defendants Specialty Retailers, Inc. and
Stage Stores, Inc.’s Motion for Summary Judgment.1 Record document
number 20.

The motion is opposed.2

Based on a review of the summary judgment evidence and the
parties’ arguments, the defendants have shown that there is no
genuine dispute for trial on two of the essential elements of the
plaintiff’s claim under LSA-R.S. 9:2800.6.

Summary judgment for

the defendants will be granted.

Background
Plaintiff Virgie Ray filed a Petition for Damages in state
court to recover for injuries and damages she sustained as a result
1

Defendant Specialty Retailers, Inc. stated that it was
incorrectly identified, named and/or referred to as Stage Stores,
Inc. in the Petition for Damages. Record document number 8, Answer
to Petition for Damages. Defendant Stage Stores, Inc. also alleged
stated that it was incorrectly sued, identified and named as a
defendant. Id. Defendants did not assert these discrepancies as
a basis for summary judgment.
2

Record document number 38.
Defendants filed a reply
memorandum. Record document number 42. Plaintiff filed a surreply
memorandum. Record document number 46.

of a trip and fall that occurred on November 1, 2013 at the Stage
store in Plaquemine, Louisiana.

Plaintiff alleged that on that

date she tripped over a rolling freight clothing rack3 located
behind the cashier that had been merged into a standard clothing
rack.

Plaintiff alleged that this condition on the premises was

created by the defendants, presented an unreasonable risk of harm,
and caused her to fall to the floor and sustain serious injuries to
her knees, face, shoulder, neck and right eye.

Plaintiff claimed

damages for past, present and future physical and mental pain and
suffering,

medical

expenses,

disfigurement and disability.

loss

of

enjoyment

of

life,

The case was removed to this court

based on diversity jurisdiction under 28 U.S.C. § 1332.
Defendants moved for summary judgment. Defendants argued that
summary judgment is warranted because there is no evidence to
support the first and third elements of the plaintiff’s claim under
the Louisiana law governing a merchant’s duty to persons who use
its premises - LSA-R.S. 9:2800.6. According to the defendants, the
undisputed evidence shows that the clothing rack and its exposed
feet were open and obvious conditions.

Therefore, defendants

argued, the presence of the rack did not create an unreasonable
risk of harm, and its employees had no duty to warn the plaintiff
of its presence or location.

3

This rack is hereafter referred to in this ruling as the
“clothing rack,” or the “rack.”
2

In support of the motion the defendants relied on the Petition
for Damages, the plaintiff’s discovery responses, excerpts from
the plaintiff’s deposition, a sketch done by the plaintiff at her
deposition, the surveillance video recording from the date/time of
the incident which depicts the plaintiff’s accident, a picture from
the video, and the affidavit of Jennifer Vu Barrera, who was the
claims

and

safety

coordinator

at

the

time

of

the

incident.4

Defendants submitted with their reply memorandum the answer to
plaintiff’s Interrogatory Number 14, an excerpt from the deposition
of employee Mary Lou Jenkins with attached photographs, and an
excerpt

from

the

deposition

of

employee

Tanita

Anderson.5

Defendants also provided a Statement of Material Facts Not at
Issue.6
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
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

4

Record document numbers 20-2 through 20-6, Exhibits A
through D-1. Plaintiff also relied on the video. Record document
numbers 21, 23, 40 and 41.
5

Record document numbers 42-1 through 42-3, Exhibits E, F and

6

Record document number 28.

G.

3

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 a verdict in its favor.
at 252, 106 S.Ct. at 2512.
metaphysical

doubt

as

Anderson, 477 U.S.

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.

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
4

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.
Thus, Louisiana law requires merchants to exercise reasonable
care to protect those who enter the store, keep the premises safe
from unreasonable risks of harm and warn persons of known dangers.
Guerrero v. Brookshire Grocery Co., 49,707, (La.App. 2d Cir.
4/29/15), 165 So.3d 1092, 1096-97. 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).
Louisiana courts have recognized that the mere presence of

5

obstacles in a store does not create an unreasonable risk of harm
when the condition is open and obvious.

Rodriguez v. Dolgencorp,

LLC, 2014-1725 (La. 11/14/14), 152 So.3d 871 (per curiam); Russell
v. Morgan’s Bestway of Louisiana, LLC, 47,914 (La. App. 2d Cir.
4/10/13),

113

So.3d

448,

453;

Watts

v.

Scottsdale

Insurance

Company, 45,397 (La.App. 2d Cir. 6/30/10), 43 So.3d 269, 270.
Analysis
The competent summary judgment evidence establishes that the
following relevant facts are undisputed.

On the date of the

incident the plaintiff was shopping for clothes at the Stage store
where she had shopped about once a month for years before the
accident.

Plaintiff asked Jenkins, a sales associate, to help her

find a blouse to match some pants.7

When the plaintiff spoke to

Jenkins, the plaintiff was standing adjacent to the end of the
clothing rack.

The clothes on the rack were not so long that they

covered or obscured the bottom of the rack.

Jenkins headed to

another area, walking between the clothing rack and the cashier who
was at a counter waiting on a customer.

Immediately after Jenkins

began to walk past the rack and behind the clerk, the plaintiff
followed Jenkins.
forward.

Plaintiff turned to her right and walked

After taking a couple of steps her right shoulder went

into the clothes on the rack, a step with her left foot placed it
7

Record document number
deposition, pp. 43-44, 47.

20-4,
6

Exhibit

C,

plaintiff’s

adjacent to the bottom of the rack, and then the next step with her
right foot caught the bottom bar of the rack and she fell to the
floor.8
Based on the plaintiff’s testimony and the video evidence
showing where the plaintiff was standing just before she started to
follow Jenkins, it is undisputed that the plaintiff was aware of
and saw the clothing rack before she tripped and fell.

Although

the plaintiff testified at her deposition that she could not see
the bottom part of the rack before her fall, the plaintiff made a
binding admission in which she denied that immediately before she
tripped, she did not see the base or bottom of the clothing rack.9
The video evidence clearly shows that the bottom of the rack was
8

Record document number 20-6, Exhibit D-1, video recording.

9

Record document number 20-1, Exhibit C, plaintiff’s
deposition, pp. 53-54, 69-70, 81-82; record document number 20-3,
Exhibit B, p. 35, Plaintiff’s Responses to Request for Admission
Propounded by Defendant, Specialty Retailers, Inc., response to
Request for Admission No. 14. Under Rule 36(b), Fed.R.Civ.P., a
matter admitted is conclusively established unless the court upon
motion, permits the admission to be withdrawn or amended.
Furthermore, a nonmovant cannot create a genuine issue of material
fact by contradicting, without explanation, his own earlier
statements. See, McWhirter v. AAA Life Ins. Co., 2015 WL 4720323
(5th Cir. August 10, 2015)(per curiam); Doe ex rel. Doe v. Dallas
Ind. School Dist., 220 F.3d 380, 386 (5th Cir. 2000); Thurman v.
Sears, Roebuck & Co., 952 F.2d 128, 136 n. 23 (5th Cir. 1992),
cert.denied, 506 U.S. 844, 113 S.Ct. 136 (1992). Therefore, to the
extent it contradicts her admission, the plaintiff’s deposition
testimony cannot create a genuine factual dispute. The admission
was made before the plaintiff’s deposition was taken.
This
testimony, which creates an unexplained conflict with her earlier
admission, does not preclude summary judgment. It does not create
a genuine factual dispute on the question of whether the bottom of
the clothing rack was visible to the plaintiff before she fell.
7

plainly visible and not covered or obscured by the clothes on the
rack, any other clothing rack or the employees working in the area.
Thus, it is undisputed that just before the plaintiff walked to
follow Jenkins, both the clothing rack and its base were seen by
the plaintiff.

Viewing these undisputed facts in the light most

favorable to the plaintiff, no reasonable trier of fact could find
that the clothing rack presented an unreasonable risk of harm to
the

plaintiff

employees

that

failed

was
to

reasonably
exercise

foreseeable,

reasonable

or

care

that
under

the
the

circumstances by not warning the plaintiff about the clothing rack.
The evidence and arguments relied on by the plaintiff are
insufficient to create a disputed issue of material fact for trial.
Plaintiff acknowledged that the video shows the bottom of the
clothing rack was visible, but argued that from her vantage point
it appeared to be the same type of clothing rack she had previously
walked around during her shopping up to that point.
however,

cited

no

evidence

to

support

this

Plaintiff,

assertion.10

Even

accepting her assertion, she did not explain how it creates a
disputed factual issue or otherwise supports finding that the rack
created an unreasonable risk of harm.

Plaintiff also pointed to

evidence that the rack had been placed there by Jenkins, who was

10

Record document number 38, Plaintiff’s Memorandum in
Opposition to Defendant’s Motion for Summary Judgment, p. 5, fn.
19.
Plaintiff simply cited the video, but the video does not
contain evidence to support the assertion about her vantage point
or her conclusion about the type of rack it was.
8

removing clothes from it to hang on the other racks, and to the
parts of the video showing that other employees were aware of the
rack

and

walked

around

it.

Again,

this

evidence

does

not

contradict the fact that the plaintiff was also aware of the
clothing rack in her path.

Plaintiff failed to explain how this

supports a reasonable inference that the clothing rack presented an
unreasonable and foreseeable risk of harm to her, and a risk about
which the defendants had the duty to warn.
Next, the plaintiff argued that it is important to note, and
the accident video demonstrates, that she never had a chance to
look down before she started to follow Jenkins.

Neither the video

nor the plaintiff’s testimony support this argument. Plaintiff
testified that she saw the rack and when walking was looking
straight ahead.11

Plaintiff did not testify that she did not have

a chance, opportunity or time to look down. During the few seconds
before the plaintiff began walking the video shows the plaintiff
was looking straight ahead.

Nothing on the video supports finding

that the plaintiff did not have a chance to look down, or that
something prevented the plaintiff from looking down before or as
she started walking.
Plaintiff also relied on testimony from Jenkins and Anderson
related to the purpose of the clothing rack involved in the

11

Record document
deposition, pp. 68-70.

number
9

20-4,

Exhibit

C,

plaintiff’s

incident, and the defendants’ policy for employees using the rack.
Plaintiff argued that from this evidence, and applying a riskutility balancing test, a reasonable trier of fact could find that
the temporary clothing rack presented an unreasonable risk of harm.
Plaintiff argued further that the testimony is at least sufficient
to create a disputed fact issue as to whether the rack was
improperly placed and presented an unreasonable risk of harm.
Plaintiff’s arguments are based on speculation rather than the
relevant undisputed facts or any persuasive case law.
testified the rack was a temporary rolling clothing rack.

Jenkins
It was

used by her and other employees to bring merchandise from the
warehouse into the store to stock the permanent racks.

Jenkins

stated that the rack was not permanent and had orange stickers on
it.

Therefore, even if it remained in one place for a certain

period of time there was no store requirement to put up a notice.
After the plaintiff fell, Jenkins moved the rack to the side so the
emergency personnel could get to the plaintiff. When asked why the
rack was not placed at that location initially, Jenkins testified
that she could not have “worked” the rack from the place where she
moved it.12

According to Anderson’s testimony, the rolling racks

12

Record document number 42-2, Exhibit F, Jenkins’ deposition,
pp. 23-25, 29-31, 33-34, 41-42, 45-46, 52-53. There is no evidence
of any similar customer trip and fall accident involving a clothing
rack at the Stage store in Plaquemine.
Defendants’ discovery
responses and Barrera’s affidavit confirm the absence of such
evidence.
Record document number 20-5, Exhibit D, Barrera’s
(continued...)
10

are used daily, and the manager’s policy is to transfer the clothes
from the rolling racks to the permanent racks as quickly as
possible, and then move the rolling racks back to the warehouse
when finished.13
Plaintiff failed to point to evidence that Jenkins’ actions in
placing

or

using

the

rack

were

unreasonable

and/or

not

in

compliance with the defendants’ policy. For example, the plaintiff
did not cite to any evidence indicating that the length of time
Jenkins used the rack did not comply with store policy or was

12

(...continued)
affidavit, ¶ 12; record document number 42-1, Exhibit E, Objections
and Answers to Interrogatories and Responses to Requests for
Production of Documents, p. 7, Answer to Interrogatory Number 14.
13

Record document number 42-4, Exhibit G, Anderson’s
deposition, pp. 22-24. In her memorandum the plaintiff stated that
Anderson testified, “We do not leave the mobile rack unattended.”
Record document number 38, p. 9. This is not an accurate statement
of what Anderson said in her deposition. Anderson testified as
follows:
Q Tell me how you –– from the back, once you have a rack ready
–A Uh-huh
Q –– what do you do?
A We roll it out and take it to our assigned department,
whatever clothes on it.
And we just take the clothes off as
quickly as possible and put the clothes out. And when we finish,
just roll the rack back to the break room, the warehouse.
Q And you said do that as quickly as possible. That’s the
guidelines that you’re under?
A Yes, sir.
Q Do you leave the rack unattended for any length of –
A No, sir.
Q Are there any rules or guidelines that you’re aware of that
tells you where the rack should be placed at while you’re unloading
it?
A No, sir.
Anderson deposition, pp. 23-24.
11

otherwise unreasonable. Nor did the plaintiff present any evidence
that stopping to help a customer during the stocking process, or
placing the rack in a location where she could efficiently transfer
the clothes to a permanent rack, was unreasonable or a violation of
store policy.

Plaintiff cited no Louisiana case that found an

unreasonable risk of harm was created, and the defendant had a duty
to warn, when a temporary clothing rack is used for this purpose,
in this manner, and in accordance with the same or a similar store
policy.
Conclusion
Plaintiff failed to come forward with evidence sufficient to
create a genuine dispute for trial on two of the essential elements
of her claim, and the defendants are entitled to summary judgment
as a matter of law dismissing the plaintiff’s claim under LSA-R.S.
9:2800.6.
Accordingly,

the

Motion

for

Summary

Judgment

filed

by

defendants, Specialty Retailers, Inc. and Stage Stores, Inc. is
granted.

A separate final judgement will be issued.

Baton Rouge, Louisiana, August 12, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

12