Bowles v. D G Louisiana L L C

Filing 19

MEMORANDUM RULING re 15 MOTION for Summary Judgment filed by D G Louisiana L L C. Signed by Judge James D Cain, Jr on 10/9/2019. (crt,Benoit, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
AMBER BOWLES, ET AL.

CASE NO. 2:18-CV-00735

VERSUS

JUDGE JAMES D. CAIN, JR.

DG LOUISIANA, LLC

MAGISTRATE JUDGE KAY

MEMORANDUM RULING
Before the court is a Motion for Summary Judgment [doc. 15] filed by defendant
DG Louisiana, LLC (“Dollar General”), in response to the personal injury suit brought by
plaintiffs Matthew and Amber Bowles. Plaintiffs oppose the motion. Doc. 17.
I.
BACKGROUND
This suit arises from injuries allegedly suffered by plaintiff Amber Bowles when
she slipped while shopping at a Dollar General store in Lake Charles, Louisiana, on March
6, 2017. See doc. 1, att. 1. She contends that the floor was slippery because of shampoo
that had spilled or leaked, and that there was no wet floor sign present. Id. at ¶ 3. Ms.
Bowles and her husband, Matthew Bowles, filed suit in the Fourteenth Judicial District
Court, Calcasieu Parish, Louisiana, seeking to hold Dollar General liable for her injuries
under the Louisiana Merchant Liability Act. Dollar General then removed the suit to this
court on the basis of diversity jurisdiction, 28 U.S.C. § 1332.
Dollar General now moves for summary judgment, alleging that plaintiffs cannot
satisfy their burden of showing that it had actual or constructive notice of the alleged spill.

Doc. 15; doc. 15, att. 1. It also asserts that some of plaintiffs’ evidence – namely, statements
from witness Patricia Runnels – must be disregarded as inadmissible hearsay. Id. Plaintiffs
oppose the motion and argue that genuine issues of material fact exist as to whether Dollar
General had constructive notice of the condition. Doc. 17. In the alternative, they request
that the court delay consideration of the motion under Rule 56(d) so that they might have
additional time to conduct discovery. Id.
II.
SUMMARY JUDGMENT STANDARD
Under Rule 56(a), “[t]he 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.” The moving party 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). He may meet his burden by
pointing out “the absence of evidence supporting the nonmoving party’s case.” Malacara
v. Garber, 353 F.3d 393, 404 (5th Cir. 2003). The non-moving party is then required to go
beyond the pleadings and show that there is a genuine issue of material fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To this end he 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.” Anderson, 477 U.S. at
249 (citations omitted).

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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).
III.
LAW & APPLICATION
A. Exclusion of Hearsay
On summary judgment, evidence may be considered to the extent that it is “not
based on hearsay or other information excludable at trial.” Fowler v. Smith, 68 F.3d 124,
126 (5th Cir. 1995). Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Fed. R. Evid. 801(c).
Dollar General argues that the court should exclude Ms. Bowles’s testimony
recalling a statement allegedly made to her by witness and fellow customer Patricia
Runnels. Ms. Bowles testified that Ms. Runnels approached her after her fall and said that
she had seen the spill before and felt “so bad that [she] didn’t say anything about it.” Doc.
15, att. 2, pp. 7–8. Ms. Runnels initially testified that she did not recall seeing the substance
before Ms. Bowles’s fall or telling her that she had, but had no reason to dispute Ms.
Bowles’s recollection of her statement. Doc. 15, att. 4, pp. 8– 9; doc. 15, att. 5, ¶ 4. At the
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conclusion of her deposition, however, Ms. Runnels stated that she recalled “feeling bad
for not reporting it” and that she did remember seeing the spill before Ms. Bowles slipped.
Doc. 17, att. 13, pp. 2–3. Accordingly, Ms. Bowles’s account of the exchange must be
excluded as hearsay but Ms. Runnels’s own recollection of the accident is admissible.
B. Summary Judgment
Under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), a federal court sitting in
diversity jurisdiction applies the substantive law of the forum state. E.g., Cates v. Sears,
Roebuck & Co., 928 F.2d 679, 687 (5th Cir. 1991). In Louisiana, claims against merchants
based on falls on the premises are governed by the Louisiana Merchant Liability Act
(“LMLA”), Louisiana Revised Statute § 9:2800.6. To prevail, a plaintiff must prove the
following (in addition to all other elements of his claim): (1) a condition on the premises
presented an unreasonable risk of harm; (2) this harm was reasonably foreseeable; (3) the
merchant either created or had actual or constructive notice of the condition; and (4) the
merchant failed to exercise reasonable care. La. Rev. Stat. § 9:2800.6(B); White v. WalMart Stores, Inc., 699 So.2d 1081, 1084 (La. 1997).
Dollar General argues that the plaintiffs’ suit fails because they cannot satisfy the
third element of the LMLA. “To survive a motion for summary judgment, a plaintiff must
submit ‘positive evidence’ that a merchant created or had actual or constructive notice of
the conditions that allegedly caused a plaintiff’s damages.” Perez v. Winn-Dixie
Montgomery, LLC, 2019 WL 1367526, at *2 (E.D. La. Mar. 26, 2019) (quoting Duncan v.
Wal-Mart La., LLC, 863 F.3d 406, 410 (5th Cir. 2017)). To show “constructive notice”
under the LMLA, the plaintiff must prove “that the condition existed for such a period of
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time that it would have been discovered if the merchant had exercised reasonable care.”
La. Rev. Stat. § 9:2800.6(C)(1). An employee’s presence near the condition “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.” Id. Accordingly, plaintiff
bears “an onerous burden” in satisfying this element. Scott v. Dillard’s, Inc., 169 So.3d
468, 472 (La. Ct. App. 5th Cir. 2015).
According to the incident report, the accident occurred at approximately 3:40 pm
on March 6, 2017. Doc. 17, att. 7, p. 16. Ms. Bowles stated that the place where she fell
was approximately ten feet away from and within the line of vision of the nearest cash
register. Doc. 17, att. 2, pp. 4, 10. After she fell, she saw an open shampoo bottle lying on
its side on a shelf above her. Id. at 10–11. She recalled that the puddle of shampoo was
approximately four feet in diameter and pinkish in color, and asserted that it would have
been visible against the off-white floor from the cashier’s vantagepoint. Id. at 11–16; see
doc. 17, att. 4. She had no information, however, on how long the substance had been there
or who caused the spill, and she could not recall seeing any footprints or track marks
through it. Doc. 17, att. 2, pp. 12, 15. She did not see any shampoo on the shelf or coming
out of the bottle. Doc. 18, att. 4, pp. 1–2.
Surveillance video produced by Dollar General does not show the area where Ms.
Bowles slipped. It does, however, show several vantage points throughout the store,
including the cash register. Through that area, from where Ms. Bowles claimed that there
was a line of vision to the scene of her accident ten feet away and that the puddle of
shampoo was visible, two employees are visible at various points in the forty minutes
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preceding the accident, though they mostly appear to be checking out customers and
engaged in other tasks relating to the registers.1 See doc. 17, att. 12 (Channels 2 & 9).
Bowles also recalled that Patricia Runnels and her teenage granddaughter, J.C.,
approached her after she fell.2 Doc. 15, att. 2, pp. 7–8. Ms. Runnels stated that had been
shopping at that Dollar General store with her granddaughter for approximately twenty
minutes before the accident occurred. Doc. 15, att. 4, p. 2. As noted above, she first testified
that she did not remember seeing the substance before Ms. Bowles’s fall, but later recalled
“feeling bad for not reporting it” and said that she did remember seeing the spill before Ms.
Bowles slipped. Id. at 2–6, 9; doc. 17, att. 13, pp. 2–3. However, she also testified that she
only walked down the aisle where Ms. Bowles fell just before the accident occurred. Doc.
15, att. 4, pp. 5–7. When she later changed her testimony and recalled that she had seen the
spill, she did not specify when. See doc. 17, att. 13.
“If a reasonable inference can be drawn from the circumstantial evidence . . . that it
was more probable than not the [hazard] existed for some period of time prior to the
accident, the court can conclude the store had constructive notice.” Cali v. Cracker Barrel
Old Country Store, Inc., 2016 WL 6947001, at *5 (E.D. La. Nov. 28, 2016) (quoting

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Plaintiffs complain that the surveillance videos, though marked to contain the two-hour period from 2:40 pm until
4:40 pm, are of varying lengths, and that Ms. Bowles’s entry into the store on the cash register video time codes did
not correspond with her recollections or the accident report. They also argue that Dollar General’s refusal to admit
that a scheduled inspection of the shelves was performed between 3:00 and 3:10 creates an issue of material fact.
In response, Dollar General shows that its surveillance system is motion-activated. Doc. 18, att. 2. The lack
of footage should only reflect that no motion was detected in that area of the store at the time. Additionally, as shown
above, none of the surveillance videos captured the area of the spill. Accordingly, any missing footage cannot create
a presumption that favorable evidence has been omitted. Moreover, Additionally, plaintiffs have not produced
evidence to suggest that the spill existed for anything more than a brief period before Ms. Bowles encountered it.
Thus, none of these suggestions creates an obstacle to summary judgment.
2
Ms. Runnels’s granddaughter testified that she believed Ms. Bowles had slipped in “a liquid soap substance like
shampoo,” but stated that she did not see the substance until after Ms. Bowles fell. Doc. 15, att. 3, pp. 3–5. She also
stated that the substance was “kind of clear” and that she could not see it until they reached Ms. Bowles. Id. at 3–4.

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Ceasar v. Wal-Mart Stores, Inc., 787 So.2d 582, 585 (La. Ct. App. 3d Cir. 2001)). “Some
period of time,” however, does not mean any amount of time. Considering cases where the
plaintiff could only show that the spill existed for ten minutes or fewer before his fall,
Louisiana courts have found the duration insufficient to impose constructive notice on a
merchant. Robinson v. Wal-Mart Stores, Inc., 2016 WL 5210711, at *5–*6 (W.D. La. Sep.
15, 2016) (collecting cases). Where the evidence is ambiguous and does not support an
inference that the hazard existed for a sufficient time, the Fifth Circuit has affirmed
summary judgment in favor of the merchant. Taylor v. Wal-Mart Stores, Inc., 464 F. App’x
337 (5th Cir. 2012).
Here there are genuine disputes as to the spill’s color/visibility and whether it was
observed by any person before Ms. Bowles fell. Plaintiffs, however, have failed to produce
any evidence suggesting that the spill existed for enough time to show constructive notice
on Dollar General’s part. Because there is no indication of how the spill occurred – i.e.,
whether the shampoo was poured out or oozed out gradually – the size of the puddle creates
no inference as to the time it took for the hazard to emerge, and Ms. Runnels’s testimony
likewise provides no support on whether the puddle existed for enough time before Ms.
Bowles encountered it. The lack of temporal evidence means that the surveillance video is
likewise insufficient to support a claim of constructive notice. Plaintiffs cannot show that
the employees would have noticed the spill in the exercise of reasonable care, either
through their scheduled inspections or their presence in the vicinity of the aisle, if they
cannot provide some indication of how long the spill existed. Accordingly, Dollar General
has shown a right to judgment as a matter of law on plaintiffs’ suit.
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C. Request for Deferral Under Rule 56(d)
Summary judgment is usually premature unless the parties have “had a full
opportunity to conduct discovery.” Anderson, 477 U.S. at 257. Accordingly, Rule 56(d)
allows the court to deny or continue a motion for summary judgment so that a party might
have additional time to gather evidence to oppose the motion. Requests for a continuance
under Rule 56(d) are “broadly favored and should be liberally granted.” Raby v. Livingston,
600 F.3d 552, 561 (5th Cir. 2010). A continuance is not guaranteed, however. Instead, a
party 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 summary judgment motion.” Am.
Family Life Assurance Co. v. Biles, 714 F.3d 887, 894 (5th Cir. 2013) (quoting Raby, 600
F.3d at 561). Additionally, the party requesting additional time under Rule 56(d) is only
entitled to relief if he has diligently pursued discovery prior to making his request. McKay
v. Novartis Pharm. Corp., 751 F.3d 694, 700 (5th Cir. 2014); see also Hodgin v. UTC Fire
& Sec. Americas Corp., 885 F.3d 243, 249–51 (4th Cir. 2018) (proper inquiry is not how
much time remains before discovery closes, but instead whether the party seeking the
continuance has already had a reasonable opportunity to conduct discovery).
Dollar General’s motion was filed on the dispositive motion deadline set under this
court’s scheduling order of November 15, 2018. See doc. 12. Plaintiffs have not moved for
an extension of that deadline or filed any other motion suggesting that they were facing
obstacles obtaining the discovery they required. They now complain, however, that Dollar
General has not provided complete discovery responses on requests relating to its recovery
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policy and that it did not produce the surveillance video until after it filed this motion.3
Doc. 17, pp. 6–7.
The discovery requests and responses provided by plaintiffs show that Dollar
General responded appropriately to the original request for video production, given that no
footage of the accident exists, and that the late production was due to plaintiffs’ decision
to wait until less than one month before the dispositive motion deadline to file their broader
request.4 As for documents relating to the store’s recovery policy, plaintiffs have not shown
how these are relevant given their inability to produce any evidence that the spill existed
when the last scheduled inspection should have occurred. See note 1, supra. Plaintiffs fail
to show the probable existence of facts that might rescue their case, or that they have acted
with sufficient diligence in pursuing same. Accordingly, they are not entitled to any delay
in judgment under Rule 56(d).

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Emails provided by Dollar General also show that plaintiffs were unable to schedule depositions of Dollar General
employees before the motion for summary judgment was filed. Doc. 18, att. 1. Plaintiffs’ counsel, however, does not
complain about missing this discovery and at any rate it does not appear that Dollar General improperly withheld the
witnesses.
4
In its first set of discovery requests, dated October 5, 2017, plaintiffs asked for “a copy of any and all reports, items,
videos, photographs, audio or written statements . . . which you have in your possession relating in any way to the
subject incident.” Doc. 17, att. 6, p. 6. Id. at 8. Dollar General responded on March 9, 2018, and objected to the request
as vague and overbroad, among other grounds. Doc. 17, att. 7, p. 9. It added, however, that “[t]he incident was not
captured on video as there is no camera with a view of the area of plaintiff’s alleged fall.” Id. Plaintiffs submitted a
second set of discovery requests on August 16, 2019, asking for “a copy of ANY surveillance video of Amber Bowles
at the subject property on the date of the subject incident.” Doc. 17, att. 10, p. 5. Dollar General responded on
September 17, 2019, with the above-referenced video files “containing all store surveillance footage in defendant’s
possession from the date of the alleged incident.” Doc 17, att. 11, p. 4.

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IV.
CONCLUSION
For the reasons stated above, the Motion for Summary Judgment [doc. 15] will be
granted and all claims in this matter will be dismissed with prejudice.
THUS DONE AND SIGNED in Chambers on this 9th day of October, 2019.

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

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