McGehee v. Wal-Mart Louisiana L L C et al

Filing 153

MEMORANDUM RULING re 117 MOTION for Summary Judgment filed by Wal-Mart Stores Inc, Wal-Mart Louisiana L L C. Signed by Judge James D Cain, Jr on 1/13/2023. (crt,Benoit, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
PAIGE PORTIER MCGEHEE

CASE NO. 2:17-CV-01372

VERSUS

JUDGE JAMES D. CAIN, JR.

WAL-MART LOUISIANA LLC ET AL

MAGISTRATE JUDGE KAY

MEMORANDUM RULING
Before the Court is a “Motion for Summary Judgment on Behalf of Wal-Mart”
(Doc. 117) who moves for summary judgment in its favor and against Plaintiff. Plaintiff
opposes the motion. 1
FACTUAL STATEMENT
On or about September 26, 2016, Raymond James McGehee, III (deceased) was
fatally electrocuted while replacing and/or repairing light fixtures in a Wal-Mart Store. At
the time Mr. McGehee was an employee of Sealand Mechanical, LLC (“Sealand”). 2
Sealand is an independent contractor for Wal-Mart. 3
Mr. McGehee was an electrician and held a National Center for Construction
Education and Research (NCCER) certification. 4 He also receive further training from his
employer, including training on electrical safety, use of energized parts, the
Lockout/Tagout Policy, and Stop Work Authority Policy. 5

Plaintiff’s Memorandum in Opposition to Motion for Summary Judgment.
Defendants’ Exhibit A. Rick Everett, Sealand 30(b)(6) representative, p. 27, 33, 81-82.
3
Id. p. 27, 84.
4
Id. p. 33.
5
Id. pp. 34-37, 44-45, Defendants’ Exhibit A-9, p. 15-16.
1
2

Mr. McGehee brought his own tools, equipment, and supplies that were provided to
him by Sealand to the Wal-Mart job. 6 Mr. McGehee was expected to rely upon his personal
training to complete the service request. 7 Sealand did not expect Wal-Mart to assist Mr.
McGehee in the work he was performing. 8
Wal-Mart did not provide direction, control, instruction, supervisions, or assistance
to Mr. McGehee. 9 On September 26, 2016, Mr. McGehee was working alone. 10 Sealand
required that Mr. McGehee first conduct diagnostic testing while the electricity was
powered on to determine how to respond to the Wal-Mart work order. 11 Mr. McGehee was
responsible for isolating energy from the light fixture and confirming the circuit was deenergized before pulling the system apart and starting the ballast replacement. 12
The breaker was located a few feet away from Mr. McGehee’s workspace and it
was clearly and properly labeled. 13 No one locked out/tagged out the circuit breaker at any
time prior to the electrocution. 14 There is no evidence that anyone flipped any switch or
otherwise activated the lights/electricity while Mr. McGehee was working. 15

Defendants’ Exhibit A, pp. 68-69; Defendants’ Exhibit C, Lon Whitley deposition, pp. 28, 42, 88, 90-93, 96.
Defendants’ Exhibit A, pp. 69-73; Defendants’ Exhibit C, pp. 91-93, 96.
8
Defendants’ Exhibit A, pp. 69-73; Defendants’ Exhibit G, Eric Sherman (Wal-Mart 30(b)(6)) deposition, pp. 69,
75.
9
Defendants’ Exhibit A, pp. 68-73; Defendants’ Exhibit B, Nathan Alexander affidavit; Defendants’ Exhibit C, p.
22, Exhibit C-7; Defendants’ Exhibit D, Stephen Batchan affidavit; Defendants’ Exhibit E, ¶ 14.
10
Defendants’ Exhibit B, Defendants’ Exhibit D, Defendant’ Exhibit F-1, Video Surveillance.
11
Defendants’ Exhibit A, pp. 49-50, 73-75.
12
Defendants’ Exhibit A, pp. 44-45, 50-51, 55-58, 73-75; Defendants’ Exhibit B; Defendants’ Exhibit C, pp. 26-28;
Defendants’ Exhibit D; Defendants’ Exhibit E and E-1, pp. 4-11.; Defendants’ Exhibit G, pp. 38-39, 75.
13
Defendants’ Exhibit C-7 and E.
14
Defendants’ Exhibit A, p. 51, 53-54, 81-82; Exhibit C, p. 26-28; Exhibit E, ¶ 9; Exhibit G, p. 38).
15
Defendants’ Exhibits B, D.
6
7

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When the incident occurred, eyewitnesses Nathan Alexander and Stephen Batchan
responded, turned the light switch off, called 911, and notified managers. 16
Wal-Mart is not aware of any damage or defects to the electrical circuitry of the rack
house or the light fixture at issue and knows of no other person to have been injured by
electricity in the rack house. 17
MOTION FOR SUMMARY JUDGMENT STANDARD
A court should grant a motion for summary judgment when 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.” Fed. R. Civ. P. 56. The party moving for summary judgment is initially
responsible for identifying portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
The court must deny the motion for summary judgment if the movant fails to meet this
burden. Id.
If the movant makes this showing, however, the burden then shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotations omitted). This
requires more than mere allegations or denials of the adverse party's pleadings. Instead, the
nonmovant must submit “significant probative evidence” in support of his claim. State
Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted.”

16
17

Defendants’ Exhibits B, D.
Defendants’ Exhibit B; Exhibit C-7; Exhibit G, pp. 64-65.

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Anderson, 477 U.S. at 249 (citations omitted). The Court is not required to search the record
for material fact issues. RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
A court may not make credibility determinations or weigh the evidence in ruling on
a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). The court is also required to view all evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in that party’s favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material
fact exists if a reasonable trier of fact could render a verdict for the nonmoving party.
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
Additionally, when the nonmovant bears the burden of proof at trial, “the plain
language of Rule 56(c) mandates the entry of summary judgment, after adequate time for
discovery an 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.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Pennington v. Vistron Corp., 876 F.2d 414, 427 (5th
Cir. 1989). In such a situation, there can be no genuine issue as to any material fact, since
a complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial. Celotex, 477 U.S. at 322–23 (quotations
omitted). The movant’s burden to show the lack of a genuine issue of material fact “may
be discharged by showing—that is, pointing out to the district court—that there is an
absence of evidence to support the nonmoving party’s case.” Id. at 325. Finally, courts may
consider the evidence shown in a nonmoving party’s opposition to motion for summary

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judgment to determine whether it, “if reduced to admissible evidence, would be sufficient
to carry [his/her/its] burden of proof at trial.” Id. at 327.
LAW & ANALYSIS
In Louisiana, liability on a theory of negligence is determined using the following
duty-risk analysis:
(1) Was the conduct of which the plaintiff complains a cause-in-fact of the
resulting harm?
(2) What, if any, duties were owed by the respective parties?
(3) Whether the requisite duties were breached?
(4) Was the risk, and harm caused, within the scope of protection afforded
by the duty breached?
(5) Were actual damages sustained?
E.g., Pitre v. Louisiana Tech Univ., 673 So. 2d 585, 589–90 (La. 1996). Here, Wal-Mart
argues that Plaintiff has failed to meet her burden by making a showing sufficient to
establish causation and duty, which are essential elements to establish liability under dutyrisk. See id. First, Wal-Mart claims that there is no evidence of an act by Walmart that
caused this incident. 18 Specifically, it is Wal-Mart’s position that the undisputed evidence
shows that neither Nathan Alexander nor Stephen Batchan, the two men who were in the
area at the time of the incident, energized the circuit Mr. McGehee was working on. 19
Second, as to duty, Wal-Mart argues that there is neither any evidence of a defect in WalMart’s equipment/premises nor evidence of any act by Wal-Mart that would create a
condition giving rise to an unreasonable danger for which Wal-Mart had a duty to protect
Mr. McGehee against. 20
Defendants’ Memorandum in Support of Motion for Summary Judgment, p. 9.
Id., p. 16.
20
Id., p. 9.
18
19

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By contrast, Plaintiff, as nonmovant, having the burden to “set forth specific facts
showing that there is a genuine issue for trial,” argues summary judgment should be denied
because there is evidence to raise an issue of material fact as to whether Wal-Mart owed a
duty to Mr. McGehee. See Anderson, 477 U.S. at 248. In her memorandum in opposition,
Plaintiff indicates that “Walmart’s policies, however, required electrical equipment to be
deenergized before being worked on by locking and tagging it out” and “[t]hose procedures
also required Walmart to obtain its contractor’s lockout/tagout procedures and to
communicate with the contractor about de-energizing and re-energizing the equipment
being repaired.” 21 Additionally, “‘Walmart policy required the Walmart employee who
called out for the service work to go with the contractor’s employee to the work area to
make sure the work area was locked out and tagged out before the contractor’s employee
began working, and Walmart had locks and tags for that purpose.” 22 After considering this
evidence in Plaintiff’s memorandum in opposition when “reduced to admissible evidence,”
the Court finds it sufficient to carry Plaintiff’s burden of proof at trial. See Celotex, 477
U.S. at 327. Accordingly, summary judgment is not warranted.

21
22

Plaintiff’s Memorandum in Opposition to Motion for Summary Judgment, p. 9–10.
Id., p. 10.

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CONCLUSION
For the aforesaid reasons, Defendants’ “Motion for Summary Judgment on Behalf
of Wal-Mart” (Doc. 117) will be DENIED.
THUS DONE AND SIGNED in Chambers on this 13th day of January 2023.

____________________________________
JAMES D. CAIN, JR.
UNITED STATES DISTRICT JUDGE

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