Pinedexter v. Wal-Mart Stores , Inc

Filing 32

RULING granting Defendant's 16 Motion for Summary Judgment. Plaintiff's claims are dismissed with prejudice. Judgment shall be entered accordingly. Signed by Judge Shelly D. Dick on 10/25/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TINA PINEDEXTER

CIVIL ACTION

VERSUS

16-547-SDD-EWD

WAL-MART STORES, INC.
RULING
This matter is before the Court on the Motion for Summary Judgment1 by
Defendant, Wal-Mart Louisiana, LLC. (“Wal-Mart” or “Defendant”).

Plaintiff, Tina

Pinedexter (“Pinedexter” or “Plaintiff”), has filed an Opposition2 to this motion. Defendant
thereafter filed a Reply.3 For the following reasons, the Court finds that Defendant’s
motion should be GRANTED.
I.

FACTUAL BACKGROUND
On September 27, 2015, Plaintiff alleges she slipped and fell, shortly after entering

the Wal-Mart store located at 5056 Airline Highway in Prairieville, LA, due to a puddle of
water near the entrance closest to the pharmacy.4 Plaintiff’s petition alleges that, as a
result of the fall, she sustained injury to numerous parts of her body.5 Plaintiff also
contends that there were no warning signs or wet floor signs warning her of the hazardous
condition.6

1

Rec. Doc. No. 16.
Rec. Doc. No. 18.
3
Rec. Doc. No. 19.
4
Rec. Doc. No. 13, ¶ 4.
5
Id. at ¶ 6.
6
Id. at ¶ 5.
2

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The record indicates that Pinedexter filed her lawsuit against Wal-Mart, John/Jane
Doe, and XYZ Insurance Co. on August 2, 2016.7 Wal-Mart removed the case to this
Court on August 18, 2016.8 Wal-Mart alleges that it issued initial disclosures required by
Fed. R. Civ. P. 26(a)(1) to Plaintiff on October 6, 2016.9 Wal-Mart also alleges that Plaintiff
failed to conduct any discovery prior to the filing of the current Motion for Summary
Judgment.10
Wal-Mart has moved for summary judgment arguing that Plaintiff has failed to
satisfy her burden under La. R.S. 9:2800.6 to come forward with positive evidence
showing that the damage-causing condition existed for some period of time sufficient to
place the Defendant on notice of its existence. Defendant claims there are no genuine
issues of material fact in dispute, and Plaintiff’s case should be dismissed. Plaintiff asserts
that she lacks sufficient facts to justify an opposition at this time and requests this Court
to either deny Defendant’s Motion or, in the alternative, defer consideration under Fed.
R. Civ. P. 56(d).
II.

LAW AND ANALYSIS
A. Summary Judgment Standard
“The court shall grant summary judgment 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.”11 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or weighing

7

Rec. Doc. No. 1-2.
Rec. Doc. No. 1.
9
Rec. Doc. No. 7, p. 4; Rec. Doc. No. 19-1. p. 1-3.
10
Rec. Doc. No. 19, p. 3.
11
Fed. R. Civ. P. 56(a).
8

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the evidence.”12 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.”13 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”14 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”15
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”16 All reasonable factual
inferences are drawn in favor of the nonmoving party.17 However, “[t]he 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.”18 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his

12

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
14
Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan World
Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
15
Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little, 37 F.3d at 1075.
16
Pylant v. Hartford Life & Accident Ins. Co., 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)).
17
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
18
RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010)(citing Ragas v. Tenn. Gas Pipeline Co.,
136 F.3d 455, 458 (5th Cir. 1998).
13

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allegations… to get to a jury without “any significant probative evidence tending to support
the complaint.”’”19
B. Procedure under Rule 56(d).
Fed. R. Civ. P. 56(d) provides a mechanism for a party opposing a motion for
summary judgment who cannot present facts sufficient to justify an opposition additional
time to conduct discovery. Recently, the Western District of Louisiana succinctly stated
the jurisprudence on Rule 56(d) as follows:
Rule 56(d) discovery motions are ‘broadly favored and should be liberally
granted’ because the rule is designed to ‘safeguard non-moving parties
from summary judgment motions that they cannot adequately oppose.’
Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir.2006). The
nonmovant, however, ‘may not simply rely on vague assertions that
additional discovery will produce needed, but unspecified, facts.’ SEC v.
Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir.1980). Rather, a
request to stay summary judgment under Rule 56(d) must ‘set forth a
plausible basis for believing that specified facts, susceptible of collection
within a reasonable time frame, probably exist and indicate how the
emergent facts, if adduced, will influence the outcome of the pending
summary judgment motion.’ C.B. Trucking, Inc. v. Waste Management Inc.,
137 F.3d 41, 44 (1st Cir.1998) (internal quotation marks and citations
omitted). ‘If it appears that further discovery will not provide evidence
creating a genuine issue of material fact, the district court may grant
summary judgment.’ Access Telecom, Inc. v. MCI Telecomm. Corp., 197
F.3d 694, 720 (5th Cir.1999); see also Washington v. Allstate Ins. Co., 901
F.2d 1281, 1285 (5th Cir.1990) (‘This court has long recognized that a
plaintiff's entitlement to discovery prior to a ruling on a motion for summary
judgment is not unlimited, and may be cut off when the record shows that
the requested discovery is not likely to produce the facts needed by the
plaintiff to withstand a motion for summary judgment.’).” Raby v. Livingston,
600 F.3d 552, 561 (5th Cir. 2010). Thus, to obtain a Rule 56(d) continuance
in order to conduct further discovery prior to a ruling on a motion for
summary judgment, the nonmovant must make essentially three showings:
(1) a description of the particular discovery the movant intends to
seek; (2) an explanation showing how that discovery would preclude

19

Nat’l Ass’n of Gov’t Emps., v. City Pub. Serv. Bd., 40 F.3d 698, 713 (5th Cir. 1994)(quoting Anderson,
477 U.S. at 249).

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the entry of summary judgment; and (3) a statement justifying why this
discovery had not been or could not have been obtained earlier. Id.20
Plaintiff asserts that she has not had a fair opportunity to conduct discovery
because: (1) Amy Hodges, a witness to the incident, did not appear for her deposition; (2)
Kayla Janeaux, Wal-Mart’s Asset Protection Associate, did not appear for her deposition;
(3) Ann Ory, Wal-Mart assistant manager, raised issues which warrant further discovery;
and (4) Ty’Ana Howard, Wal-Mart store employee, raised an issue which warranted
further discovery.21 In particular, Plaintiff asserts that both Amy Hodges and Kayla
Janeaux will provide information regarding whether Wal-Mart should have had actual or
constructive notice of the wet floor on the date of the incident. Plaintiff identified three
other managers during the deposition of Ann Ory who arguably might offer information
regarding the condition of the floors on the date of the incident. Finally, Plaintiff argues
that the juice display mentioned in Ty’Ana Howard’s testimony warrants further discovery
as to the cause of Plaintiff’s fall. In light of the foregoing, Plaintiff argues that the Court
should either deny or defer consideration of Defendant’s Motion.
Defendant asserts, and this Court agrees, that Plaintiff has failed to meet any of
the three showings required under Raby v. Livingston22 in order to obtain a continuance
to conduct further discovery. First, instead of identifying particular discovery sought,
Plaintiff only claims that she anticipates further discovery will produce evidence that
Defendant had actual or constructive notice in general. The only particular discovery
identified by Plaintiff is surveillance footage allegedly needed to determine if it was raining

20

Leger v. Offshore Staffing Servs. of Acadiana, LLC, No. 6:11-CV-01539, 2013 WL 504922, at *1 (W.D.
La. Feb. 8, 2013) (emphasis added).
21
Rec. Doc. No. 18, p. 3-5.
22
600 F.3d 552, 561 (5th Cir. 2010).

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and the existence of the juice display. The Plaintiff’s own testimony contradicts the need
for this discovery.23 Plaintiff testified that she did not recall it raining on the date of the
incident, identified she slipped in water, and denied that it looked like juices.24
Next, Plaintiff has made no offering how the discovery sought would preclude the
entry of summary judgment. While Plaintiff seeks further discovery to show Defendant
had actual or constructive notice, she has failed to elaborate on how any particular
evidence sought would create a genuine issue of material fact or satisfy her burden of
proving that the water existed for a period of time sufficient to place Wal-Mart on notice.25
Finally, Plaintiff fails to explain why the discovery sought has not been, or could
not have been, obtained earlier. Defendants argue that Plaintiff was provided Rule
26(a)(1) disclosures listing Ann Ory, Ty’ana Howard, Kayla Janeaux and Amy Hodges as
persons with discoverable information along with the Customer Incident Report,
Customer Accident Report, and Witness Statement of Amy Hodges on October 6, 2016.26
Despite having this information, Plaintiff did not notice any depositions or request further
written discovery until after Defendant filed their Motion on March 13, 2017.27 Therefore,
Plaintiff’s request that the Court defer consideration of Defendant’s Motion is DENIED.

23

Rec. Doc. No. 16-3, p. 19, 21.
Id.
25
See Kennedy v. Wal–Mart Stores, Inc., 98–1939 (La.4/13/99), 733 So.2d 1188 (While the plaintiff
produced evidence showing that the general area where he fell was within view of a customer service
podium and that it was raining on the evening when he fell, he failed to present any evidence as to the
length of time the puddle was on the floor before his accident and therefore failed to meet his burden of
proving Wal–Mart's constructive knowledge of the condition).
26
Rec. Doc. No. 19-1. The Court notes that the Certificate of Service of Rec. Doc. No. 19-1 is dated Dec.
5, 2016. However, Plaintiff has made no argument that Defendant did not provide initial disclosures on Oct.
6, 2016 as stated in Rec. Doc. No. 7, p. 4. Also, the Scheduling Order, Rec. Doc. No. 9, p. 1, entered on
Oct. 20, 2016, stated initial disclosures had been completed.
27
Rec. Doc. No. 18-2; Rec. Doc. No. 18-4; Rec. Doc. No. 18-8. The Court notes that the Deposition of
Kayla Janeaux was scheduled for March 24, 2017 and notice thereof was sent forwarded via first class mail
to all parties only a week before on March 17, 2017. While the Notice for Amy Hodges was not dated and
24

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The Court turns to the merits of the Defendant’s summary judgment motion.
C. The Louisiana Merchant Liability Statute – La. R.S. 9:2800.628
Louisiana Revised Statute 9:2800.6 sets forth the burden of proof in claims against
merchants, such as the Defendant, and provides the following in pertinent part:
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.

“Constructive notice,” as defined in La. R.S. 9:2800.6(C)(1), means 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

unsigned, the Court assumes that it was forwarded on the same date as Kayla Juneaux’s because it was
scheduled for the same date, place, and time.
28
Louisiana law on merchant liability governs Plaintiff’s claims in this matter that is proceeding in this Court
on the basis of diversity jurisdiction.

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constructive notice, unless it is shown that the employee knew, or in the exercise of
reasonable care, should have known of the condition.”29
Where the cause and time of a spill are unknown in a slip and fall case arising on
a merchant's premises, “the factfinder is required to draw inferences from various factors
pertaining to the spill and the merchant's actions in an effort to determine whether the
[merchant's] negligence is the most plausible explanation for the accident.”30 “Since fault
is not based on strict liability, a spill that is not shown to be caused by the storekeeper,
but more likely was caused by another patron, does not alone create liability.”31 “The
plaintiff must also prove that the defendant breached the duty of reasonable inspection
and care of the premises.”32
To prove that the defendant breached that duty, a plaintiff must make a “positive
showing” that “the [damage-causing] condition existed for such a period of time” before
the fall that the merchant would have discovered its existence through the exercise of
ordinary care.33 Thus, a claimant who simply shows that the condition existed, without
an additional showing that the condition existed for “some time” prior to the fall, has failed
to carry the burden of proving “constructive notice” as mandated by La. R.S. 9:2800.6.34
Where a plaintiff does not present any evidence as to how long the damage-causing
condition existed prior to the fall, courts have routinely found that the plaintiff has failed to

29

La. R.S. 9:2800.6(C)(1).
Tanner v. Brookshire Grocery Co., 29,276 (La.App. 2 Cir. 4/2/97), 691 So.2d 871, 873.
31
Id.
32
Id.
33
White v. Wal–Mart Stores, Inc., 97–C–0393 (La.9/9/97), 699 So.2d 1081, 1084–1085.
34
Id. at 1083.
30

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carry his/her burden of proof.35 In addition, the merchant does not have to disprove its
culpability by coming forward with positive evidence of the absence of a spill.36
In this case, Defendant contends Plaintiff’s deposition testimony forecloses
Plaintiff’s claims because it demonstrates her inability to satisfy her burden of proof.
Specifically, Plaintiff admits that she did not see the water on the floor prior to her fall,37
did not know how the water got there,38 and did not know how long it had been there
before her fall.39 Therefore, Defendant argues that the record is void of any evidence to
satisfy Plaintiff’s burden of proving the temporal element that the dangerous condition
existed for such a time as to place the Defendant on notice thereof.
The Court finds that Plaintiff has failed to carry her burden of proof and failed to
present a genuine issue of material fact which would preclude summary judgment. The
law set forth above is clear: “Plaintiff must come forward with positive evidence showing
that the condition that caused the damage existed for some period of time, and that such
time was sufficient to place [Defendant] on notice of its existence.”40

35

See, O'Brien v. Wal–Mart Stores, Inc., 31,032 (La.App. 2nd Cir.10/28/98), 720 So.2d 1263 (The plaintiff
failed to present any evidence to establish that the oil upon which she slipped was on the floor for any
length of time and therefore did not establish constructive notice on the part of the defendant/merchant);
Kennedy v. Wal–Mart Stores, Inc., 98–1939 (La.4/13/99), 733 So.2d 1188 (While the plaintiff produced
evidence showing that the general area where he fell was within view of a customer service podium and
that it was raining on the evening when he fell, he failed to present any evidence as to the length of time
the puddle was on the floor before his accident and therefore failed to meet his burden of proving Wal–
Mart's constructive knowledge of the condition); Babin v. Winn Dixie of Louisiana, Inc., 2000–0078
(La.6/30/00), 764 So.2d 37 (Where the plaintiff admitted in his deposition that he did not know how the
toothpick boxes upon which he slipped arrived on the floor and that he did not know how long they had
been on the floor prior to his fall, the Louisiana Supreme Court found that the plaintiff failed to produce the
factual support necessary to establish that he would be able to satisfy his evidentiary burden of proof at
trial and therefore found that summary judgment was appropriate).
36
Id. at 1086.
37
Rec. Doc. No. 16-3, p. 20.
38
Red. Doc. No. 16-3, p. 21.
39
Id.
40
Wright v. SCC Serv. Solutions, Inc., 07-219 (La. App. 5 Cir. 9/25/07), 968 So.2d 759, 762.

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Both Louisiana federal and state courts have granted summary judgment in favor
of merchants in factually similar cases. The reasoning and analysis of the court in Reeves
v. TPI Restaurants, Inc.41 is particularly applicable to this case. In Reeves, the plaintiff
brought suit for damages allegedly sustained after a slip and fall in a Shoney’s
restaurant.42 The undisputed facts of the case showed that the plaintiff had no idea for
how long the alleged slippery condition existed on the floor; could not say what the
substance was, if there indeed was a foreign substance on the floor; and presented no
evidence that Shoney’s had actual or constructive knowledge of the alleged condition.43
The court cited the merchant liability statute set forth above and stated that, “Section
2800.6(B) clearly places the burden of proving all elements under § 2800.6(B) on the
plaintiff alone, and a plaintiff’s failure to prove even one element is fatal to the entire cause
of action.”44 Finding summary judgment appropriate in favor of the defendant, the court
held as follows:
The plaintiffs have brought absolutely NO evidence that Shoney's either
created or had actual or constructive knowledge of any slippery condition
on the floor. The plaintiffs cannot say whether there was a substance at all,
what that substance was, or how long it had been in place before the
accident. As White v. Wal-Mart Stores, Inc., 699 So.2d 1081, 1084
(La.1997), explains with respect to constructive notice, “The statute does
not allow for the inference of constructive notice absent some showing of
this temporal element. The claimant must make a positive showing of the
existence of the condition prior to the fall. A defendant merchant does not
have to make a positive showing of the absence of the existence of the
condition prior to the fall.” Id.
Simply put, the plaintiffs have failed to present any evidence of actual or
constructive notice on the part of Shoney's.45
41

No. 05-1778, 2008 WL 680214 (W.D. La. Mar. 13, 2008).
Id. at * 2.
43
Id. at *3.
44
Id. (emphasis in original).
45
Id. at *4.
42

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The same statement could be said of the Plaintiff in this case in relation to the
allegedly slippery condition/floor which allegedly caused her fall.
The same result was reached by the First Circuit Court of Appeal for the State of
Louisiana in Burnett v. Lucky Nails, Inc.46 In Burnett, the plaintiff slipped and fell in a nail
salon after she was proceeding towards the pedicure chairs for a pedicure.47 The trial
court held a hearing on the defendant’s motion for summary judgment and concluded that
the evidence failed to demonstrate that there was “anything obvious” on the floor, noting
that the plaintiff had testified that there was no water on the floor, only that the floor “felt
slippery.”48 The trial court held that the plaintiff’s failure to identify any substance on the
floor or how it got there constituted a failure to carry her burden of proof.49
On appeal, the Louisiana First Circuit reviewed the record de novo and affirmed
the decision of the trial court.

The court of appeal agreed that the plaintiff’s

acknowledgement that she did not notice anything unusual about the floor and did not
notice any liquid or water on the floor constituted “an absence of support for one of the
essential elements of plaintiff’s claim, i.e., the existence of a condition on the floor that
created an unreasonable risk of harm to persons on the premises.”50

The court also

found lacking the plaintiff’s affidavit wherein she attested that the floor “appeared to have
some substance making it slippery as ice.”51 The court held that, “[t]his affidavit contains
only conclusory allegations of fact rather than specific facts based on personal

46

No. 2014 CA 1577, 2015 WL 3613089 (La. App. 1 Cir. June 5, 2015).
Id.
48
Id.
49
Id.
50
Id. at * 3.
51
Id.
47

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knowledge. Affidavits with conclusory allegations of fact which are devoid of specific facts
are not sufficient to defeat summary judgment.”52 The court continued:
Plaintiff also cited to portions of her deposition that had been filed by
defendants, wherein she testified about the slipperiness of the floor. In her
deposition, plaintiff testified that she felt the floor as she got up after the fall
and that it was “slippery” and “felt differently,” “like wax.” However, she
acknowledged that she did not know what made the floor slippery. She
speculated that the floor may have been slippery from whatever substance
the employees used to clean the floor or wipe their work areas after
pedicures. Other than when she placed her hand on the floor to get herself
up, plaintiff did not rub the floor with her hands or feet to inspect it. Other
than her own speculation, plaintiff did not offer any factual evidence to
establish that excessive wax or a cleaning solution was present on the floor
that day.
Plaintiff also agreed, when questioned by her attorney, that it was possible
that pedicure solution “could get on the floor” as customers took their feet
in and out of the pedicure tubs or that some disinfectant spray used to clean
the tubs could have gotten on the floor. However, plaintiff acknowledged
that there was no water on the floor.
Moreover, this testimony is mere speculation. Speculative allegations as to
the presence of a substance on a floor are insufficient to defeat summary
judgment. See Trench v. Winn–Dixie Montgomery LLC, 14–152 (La.App.
5th Cir.9/24/14), 150 So.3d 472, 476–477; also see generally Kinchen v.
J.C. Penney Company, Inc., 426 So.2d 681, 683–684 (La.App. 1st
Cir.1982), writ denied, 431 So.2d 774 (La.1983) (The mere fact that a floor
has a “high shine” is not sufficient to establish liability. Rather the plaintiff
must prove that floor was in fact unreasonably slippery, such as from an
excessive or uneven application of wax or an improper application of wax.).
Finally, we note that in her appellate brief, plaintiff makes various
statements that: the floors in the building at issue had an “inherent slippery
nature”; ceramic tile floors “may be slippery unless non-slip measures are
taken”; “[t]hese slippery floors were made more slippery by applying
polymer over wax dressing”; and “the sea salt aroma therapy mixture and
cuticle lotion commonly used for pedicures if left on the floor creates an
unreasonable risk of harm.” However, there is no evidence in the record to
support any of these allegations. Argument or allegations in briefs, no
matter how artful, are not sufficient to raise a genuine issue of material fact.

52

Id., citing Christakis v. Clipper Construction, L.L.C., 2012–1638 (La.App. 1st Cir.4/26/13), 117 So.3d 168,
170–171, writ denied, 2013–1913 (La.11/8/13), 125 So.3d 454.

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Rapp v. City of New Orleans, 95–1638 (La.App. 4th Cir.9/18/96), 681 So.2d
433, 437, writ denied, 96–2925 (La.1/24/97), 686 So.2d 868.53
In the present case, there is nothing before the Court that warrants a different result
than those reached by the courts in the cases cited above. The Court has not made any
credibility evaluations in reaching this decision. Indeed, the Court accepts as true all of
Plaintiff’s deposition testimony. Plaintiff admitted in her deposition that she did not see
any water on the floor, she does not know whether the Defendant’s employees caused
the allegedly unsafe condition on the floor, how long the condition existed before she
slipped, or whether any employee of the Defendant knew of the condition prior to her fall.
Thus, Plaintiff has failed to provide any evidence demonstrating that the Defendant had
actual or constructive notice of the existence of the damage-causing condition prior to her
fall. Because Plaintiff is unable to produce the necessary factual support to satisfy her
burden of proving actual or constructive notice on the part of the Defendant as required
by La. R.S. 9:2800.6 and related jurisprudence, summary judgment in favor of the
Defendant is warranted under the facts of this case.

53

Burnett, 2015 WL 3613089 at *3 - *4.

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III.

CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment54 is

GRANTED. Plaintiff’s claims are dismissed with prejudice.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on October 25, 2017.

S

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

54

Rec. Doc. No. 16.

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