McDonald v. Nationwide Building Services Inc et al

Filing 68

MEMORANDUM RULING re 54 MOTION for Partial Summary Judgment filed by Travelers Indemnity Co of Connecticut, Brookshire Grocery Co. Signed by Judge Terry A Doughty on 6/7/2019. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
MARGARET MCDONALD

CIVIL ACTION NO. 3:17-CV-00981

VERSUS

JUDGE TERRY A. DOUGHTY

BROOKSHIRE GROCERY CO., ET AL.

MAG. JUDGE KAREN L. HAYES
RULING

Pending here is a Motion for Partial Summary Judgment filed by Defendants Brookshire
Grocery Company (“Brookshire”) and The Travelers Indemnity Company of Connecticut
(Travelers”) [Doc. No. 54]. Plaintiff Margaret McDonald (“McDonald”) filed an opposition
[Doc. No. 60]. Nationwide Building Services, Inc. (“Nationwide”) filed a limited opposition
[Doc. No. 61]. Brookshire and Travelers filed a reply to McDonald’s opposition [Doc. No. 64].
The motion is fully briefed, and the Court is prepared to rule.
I.

FACTS AND PROCEDURAL BACKGROUND
McDonald contends that she suffered injuries on June 20, 2016, when she slipped and fell

on water left after a floor was cleaned and buffered at the Brookshire store in Jonesboro, Louisiana.
On May 26, 2017, she filed a Petition for Damages against Defendants Brookshire, Nationwide,
and Travelers in the Second Judicial District Court for the Parish of Jackson, State of Louisiana.
On August 1, 2017, the lawsuit was removed to this Court.
On March 12, 2018, McDonald filed a First Supplemental and Amended Petition [Doc.
No. 16], adding as an additional Defendant Argel Building Services, Inc., (“Argel”). She alleged
liability on the basis that Brookshire had retained the services of Nationwide, who, in turn, had
retained the services of Argel to clean the floors of the business.

On March 5, 2019, McDonald filed a Second Supplemental and Amended Petition [Doc.
No. 36] adding as an additional Defendant United Specialty Insurance Company (“United”), the
alleged insurer of Argel.
On March 7, 2019, Nationwide filed a Motion for Partial Summary Judgment [Doc. No.
38], contending that it had no liability to McDonald because it had not cleaned or buffered the
floors at the Jonesboro Brookshire store, but, rather, had sub-contracted that work to Argel, as an
independent contractor.
On March 18, 2019, Brookshire and Travelers filed a cross-claim against Nationwide [Doc.
No. 42], alleging that the written contract between Brookshire and Nationwide contained an
indemnity clause which provided that Nationwide would defend, indemnify, and hold Brookshire
harmless from any and all claims, damages, or obligations arising out of the performance of
services in cleaning floors at the Brookshire store.
On April 5, 2019, the Court granted Nationwide’s Motion for Partial Summary Judgment
[Doc. No. 38], concluding that Nationwide has no liability to McDonald because under Louisiana
law a party is not liable for the torts of its subcontractor unless that party retains the right to control
the manner in which the contractor performs his work, which, in this case, Nationwide did not do.
Thus, Nationwide was entitled to judgment as a matter of law holding that it has no liability to
McDonald [Doc. Nos. 52, 53]. However, Nationwide remained a party because of Brookshire’s
cross claim [Doc. No. 42].
On April 30, 2019, Brookshire and Travelers filed the pending motion for partial summary
judgment asking that McDonald’s claims against them be dismissed because: (1) Brookshire did
not perform any floor cleaning services that allegedly caused or contributed to McDonald’s slip

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and fall; and, (2) Brookshire contracted all floor cleaning services for the premises in question to
Nationwide as an independent contractor, and, therefore, Brookshire is entitled to summary
judgment dismissing McDonald’s claims against it for the same reason the Court granted summary
judgment in favor of Nationwide [Doc. No. 54].
On May 21, 2019, McDonald filed her opposition to the pending motion for summary
judgment [Doc. No. 60]. McDonald contends there are genuine issues of material fact as to
whether a Brookshire employee operated the floor cleaner, whether “wet floor” signs were placed
on the floor in the area where McDonald fell, and whether Brookshire is liable to her pursuant to
La. R. S. 9:2800.6, the Louisiana premises liability statute.
Also, on May 21, 2019, Nationwide filed a limited opposition in which it stated it did not
oppose Brookshire’s motion for partial summary judgment seeking dismissal of McDonald’s
claims against Brookshire; however, Nationwide submits that, to the extent the motion is deemed
to seek a determination that defense and indemnity is owed to Brookshire by Nationwide,
Brookshire failed to meet its burden of proof [Doc. No. 61].
On May 28, 2019, Brookshire and Travelers filed a reply in support of their motion for
summary judgment [Doc. No. 64].
The motion is ripe.
II.

LAW AND ANALYSIS
A.

Summary Judgment

Summary judgment Ashall [be] grant[ed] . . . 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.@ FED. R.
CIV. P. 56(a). A fact is Amaterial@ if proof of its existence or nonexistence would affect the
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outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute about a material fact is Agenuine@ if the evidence is such that a
reasonable fact finder could render a verdict for the nonmoving party. Id.
If the moving party can meet the initial burden, the burden then shifts to the nonmoving
party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache
Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than Asome
metaphysical doubt as to the material facts.@ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). In evaluating the evidence tendered by the parties, the Court
must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its
favor. Anderson, 477 U.S. at 255.
B.

Analysis
1. McDonald’s Claim Against Brookshire
a.

The Duty/Risk Analysis

In any negligence action, the threshold question is whether the defendant owed the plaintiff
a duty, and whether a duty is owed is a question of law. Milbert v. Answering Bureau, Inc., 120
So. 3d 678, 688 (La. 6/28/2013). Louisiana courts employ a duty-risk analysis, under which a
plaintiff must prove five elements: (1) whether the defendant had a duty to conform his conduct to
a specific standard of care; (2) whether the defendant’s conduct failed to conform to the appropriate
standard of care; (3) whether the defendant’s substandard conduct was a cause-in-fact of the
plaintiff’s injuries; (4) whether the defendant’s substandard conduct was a legal cause of the
plaintiff’s injuries; and (5) whether the plaintiff was damaged. Id.
McDonald alleges that on June 20, 2016, she “slipped and fell on some excess water after
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the cleaning and buffering of the floors, causing her to fall, [and] causing her serious injury to her
person.” [Doc. No 36, p. 2]. She further alleged that Brookshire “retains the services of
[Nationwide], who in turn upon information and belief, retained the services of [Argel], who is
responsible for cleaning the floors of the business.” Id.
b.

Whether Brookshire Owed a Legal Duty to McDonald

Brookshire moves for summary judgment on the basis that it owed no legal duty to
McDonald because, under Louisiana law, a party is not liable for the torts of its subcontractor
unless that party retains the right to control the manner in which the contractor performs his work.
Carmouche v. W.G. Yates and Sons Const., No. 2:04-CV-2397, 2006 WL 1635703, at *3 (La.
W.D. June 12, 2006) (citing Mack v. CDI Contractors, Inc., 757 So.2d 93 (La. App. 5 Cir. 2000)).
Brookshire shows that on June 15, 2016, Brookshire entered into a Cleaning Maintenance
Services Agreement with Nationwide for cleaning and maintenance services for floors, lavatories,
and other areas at the Brookshire store in Jonesboro, Louisiana (the “CMS Agreement”) [Doc. No.
54-3].
Under Section 6 of the CMS Agreement with a heading of “Independent Contractor,” the
Agreement provides as follows:
BGC and Contractor agree that Contractor is and shall act solely as an independent
contractor in the performance of any services under the Agreement. Contractor
shall employ its own means and methods of accomplishing such services and shall
work independently and exercise its own judgment. Contractor shall be
responsible for the use of, and providing its employees, agents, and subcontractors
adequate training in, all cleaning and maintenance equipment as well as safety
equipment applicable to the services to be performed hereunder . . .
[Doc. No. 54-3, p. 2]
On January 1, 2016, Nationwide entered into an Independent Sub-Contractor Agreement
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(the “Subcontract Agreement”) with Argel to provide services in the nature of cleaning premises
for certain stores which are customers of Nationwide, including the Brookshire store where this
accident occurred. [Doc. No. 38-3, pp. 9-22]. The Subcontract Agreement included provisions
expressly recognizing both Argel’s expertise in providing professional premises cleaning services
and the independent contractor status governing the business relationship between Nationwide and
Argel. [Id. at p. 9].
Brookshire attaches the affidavits of Brandy Presley (“Presley”), the perishable food
manager at the Brookshire store in Jonesboro at the time of the accident, and Chad Crowe,
Brookshire’s Vice President of Facility Services, to show that Argel used its own equipment to
clean the floors on the day of McDonald’s alleged injury and did so independently of any
Brookshire’s employee involvement [Doc. Nos. 54-4, 54-5].
Presley, who was on the premises on the day of the accident, confirms in her affidavit that
at the date and time of the fall, the floors were being cleaned by Argel; that Argel used its own
equipment to perform the work, including placing its own warning signs; that Brookshire’s did not
perform any floor cleaning or buffer services that allegedly caused or contributed to McDonald’s
slip and fall incident; that Brookshire’s did not supervise or control the floor cleaning operations
in any way and, finally, that no Brookshire’s employee was involved in the cleaning of the floors
[Doc. No. 54-4].
Brookshire concludes that the above summary judgment evidence conclusively establishes:
(1) that Brookshire did not perform any floor cleaning or buffing services that allegedly caused or
contributed to McDonald’s slip and fall incident; and, (2) that said services were performed by
Nationwide and/or Argel, who were independent contractors, and, this Court has previously ruled
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that Nationwide was entitled to judgment as a matter of law holding that it has no liability to
McDonald because it subcontracted the work to Argel . Thus, Brookshire submits no genuine
issue of material fact exists, and Brookshire is entitled to a dismissal of McDonald’s claims against
it as a matter of law.
In her opposition, McDonald argues, first, that a Brookshire employee, rather than an Argel
employee, was operating the floor cleaning equipment at the time of the accident. In support of
that allegation, McDonald attaches only her own affidavit, in which she avers:
“Her recollection is that once she fell the young lady, believed to be Kennedy Tran,
whom was operating the machine moved the signs into the area in which she fell.
Mrs. McDonald was under the impression that Kennedy Tran was a Brookshires
employee and that Ms. Tran had made herself out to be an employee of
Brookshires.”
[Doc. No. 60-3, p. 1].
Brookshire responds that McDonald’s affidavit is not sufficient to create a genuine issue
of material fact. The Court agrees.
Rule 56(c)(4) provides that “an affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters stated.”
Conclusory allegations, speculation, unsubstantiated assertions, and legalistic
arguments are not an adequate substitute for specific facts showing a genuine issue for trial.
TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002); SEC v. Recile,
10 F.3d 1093, 1097 (5th Cir.1997); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir.1994) (en banc); see also Pyron v. Piccadilly Restaurants, LLC, No. 4:09-00057, 2010 WL
2683618 at *3 (N.D. Miss. 7/2/10) (“In the present case, the plaintiff has offered nothing beyond
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speculation that the floor was mopped with a ‘greasy mop’ to show why the floor was slick.
Such speculation is insufficient to defeat the defendant’s motion for summary judgment.”)
McDonald’s statements are merely assumptions, perceptions, or speculations. “Her
recollection” is not sufficient to defeat summary judgment. See Johnson v Saxon Mortgage
Services, Inc., No. 2:10-074-B-S, 2011 WL 5325885 at *5 (N.D. Miss. 11/3/11) (“It is
undisputed that the only evidence the plaintiffs can present to the court in support of their case
is the recollection of Mrs. Johnson that she made the mortgage payments. While her testimony
is admissible evidence and while the court will not make credibility determinations in ruling on
a summary judgment motion, it is well settled that self-serving ‘affidavit or deposition
testimony setting forth ultimate or conclusory facts . . . are insufficient to defeat a motion for
summary judgment.’”) (citing Clark v. America's Favorite Chicken Co., 110 F.3d 295, 297 (5th
Cir.1997)).
Additionally, McDonald’s affidavit provides “Mrs. McDonald was under the
impression that Kennedy Tran was a Brookshires employee and that Ms. Tran had made herself
out to be an employee of Brookshires.” (emphasis added). However, McDonald provides no
evidence that Kennedy Tran was a Brookshire employee or that Kennedy Tran was operating a
floor cleaning machine on the date of the accident. Further, she attaches no documentation to
validate her assumptions and perceptions.
Brookshire, on the other hand, has produced the affidavit of Presley, the perishable food
manager at the store, which unequivocally states that she was present at the store at the time of
the accident and that no employee of Brookshire’s performed any aspect of the floor cleaning
services on the date of the accident [Doc. No. 54-4, p. 1.]
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Accordingly, the Court finds that McDonald has failed to establish a genuine issue of
material fact as to whether a Brookshire employee, rather than an Argel employee, was
operating the floor cleaning equipment.
McDonald’s opposition next contends that Brookshire is liable for her injuries under La.
R. S. 9:2800.6, the Louisiana premises liability statute.
Louisiana Revised Statute 9:2800.6(B) sets out the burden of proof for persons bringing
negligence claims against merchants for falls on their premises. Hernandez v. National Tea, Inc.,
734 So.2d 958 (La. App. 5th Cir. 1999). The statute states:
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;
1.

In a negligence claim brought against the 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 this cause of action, all of the following:
a.

b.

The merchant either created or had actual constructive
notice of the condition which caused the damage, prior to
the occurrence;

C.

2.

The condition presented an unreasonable risk of harm to
the claimant and that risk of harm was reasonably
foreseeable.

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.

Definitions:

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"Constructive notice" means the claimant has proven 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 or reasonable care should have
known, of the condition.
McDonald asserts Brookshire has liability under this statute because the slippery floor
where she fell created an unreasonable risk of harm which was reasonably foreseeable; Brookshire
created the condition of the slippery floor that caused her to fall and therefore she need not prove
actual or constructive notice; even if Brookshire did not create the condition, it had constructive
notice of the slippery floor where McDonald fell; and Brookshire failed to exercise reasonable care
to prevent injury to her when it failed to place “wet floor” signs in the area where McDonald fell.
In support of her arguments, McDonald once again offers her own affidavit. She also
offers a store video which purports to show there were no “wet floor’ signs in the area when she
fell. She contends the dispute as to whether there were “wet floor” signs placed in the area where
she fell on the slippery substance goes to whether Brookshire exercised reasonable care.
Brookshire replies that McDonald’s arguments ignore the contract between Brookshire and
Nationwide. According to Brookshire, it has no liability for any injury caused by the wet
substance on the floor and, further, it is not responsible for the placement of “wet floor” signs
during the floor cleaning operations being performed by an independent contractor. In support of
this argument, Brookshire cites Thomas v. Albertsons, Inc., 685 So.2d 1134 (La. App. 2d Cir.
12/11/96), where Albertsons contended that they were not liable for the damage suffered by
plaintiff because they had contracted with an independent floor care contractor who was
responsible for cleaning the floors, posting caution signs, and attending the areas being mopped.
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Albertsons argued that their employees were not responsible for the condition of the floor and that
Plaintiff had failed to prove that the merchant created or had constructive notice of the condition
and that the merchant failed to exercise reasonable care.
There, the Court acknowledged that, as here, Albertsons used independent contractors
to clean the floors; that the contract included a paragraph which indicated that the contractor
would operate as an independent contractor; and no testimony indicated that Albertsons
retained control or supervision of the floor cleaning work done by the contractor. Thus,
Albertsons was not liable for the plaintiff's damages.
This Court agrees. Where independent contractors are responsible for the actions
giving rise to the allegations of negligence, La. R.S. 9:2800.6 is not applicable to the store
owner.
Brookshire additionally asserts that it has no liability under La. R.S. 9:2800.6, because,
in her affidavit, McDonald has failed to show that Brookshire knew or had constructive
knowledge of the wet substance on the floor or that Brookshire failed to exercise reasonable
care.
Brookshire asserts that the seminal case interpreting the statute is White v. Wal-Mart
Stores, Inc., 699 So.2d 1081 (La.1997). In White, the Court held:

[I]t is the plaintiff’s burden to prove each element of her cause of action
under La. R.S. 9:2800.6(b). Furthermore, because constructive notice
is plainly defined to include a mandatory temporal element, we find that
where a claimant is relying upon constructive notice under La. R.S.
9:2800.6(b)(2), the claimant must come forward with positive evidence
showing that the damage-causing condition existed for some period of
time, and that such time was sufficient to place the merchant defendant
on notice of its existence.
A claimant who simply shows that the condition existed without an additional showing
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that the condition existed for some time before the fall has not carried the burden of proving
constructive notice as mandated by the statute. “Though the time period need not be specific in
minutes or hours, constructive notice requires that the claimant prove the condition existed for
some time period prior to the fall.” Kennedy v. Wal-Mart Stores, Inc., 733 So.2d 1188, 1191
(La. 1999).
Brookshire asserts that, since the White decision, several additional decisions have been
handed down using the same logic.
In Kennedy, the plaintiff was injured when he slipped in a puddle on the floor while at
the defendant's store. Plaintiff presented evidence showing that the general area where he fell
was in view of a customer service podium and that it was raining on the evening in question.
However, plaintiff presented no evidence as to the length of time the puddle was on the floor
before his accident. The Supreme Court overruled both the trial court and the appellate court
and found that plaintiff had failed to meet the "temporal element" which is required under White,
733 So.2d. at 1191.

In O'Brien v. Wal-Mart Stores, Inc., 720 So.2d 1263 (La.App. 2nd Cir. 1998), the plaintiff
was injured when she stepped in a clear substance on the floor at Wal-Mart. The substance was
later identified as oil. The plaintiff stated that she did not see anyone in the department when
she fell. Further, the plaintiff stated that the oil spill measured around five inches in diameter,
and there was a smear mark on the right side of the spill. The plaintiff testified that there was
no trash, debris, or shopping cart tracks in the vicinity of the spill and that she believed that she
was the first person to step into the oil spill. The Court ruled that the plaintiff had failed to
present any evidence establishing constructive notice, as no evidence showed that the oil was
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on the floor for any length of time.
In Rogers v. Brookshire Grocery Company, 702 So.2d 11 (La.App. 2nd Cir. 1997), the

plaintiff was injured when she slipped on a green vegetable leaf in the defendant's store. The
Court stated that the plaintiff had failed to show lack of reasonable care on the part of the
defendant, as well as how long the leaf had been on the floor. Plaintiff did not present positive
proof that the substance was on the floor for a period of time.
In Zeringue v. Wal-Mart Stores, Inc., 10-589 (La. App. 5 Cir. 3/29/11); 62 So.3d 276, the
appellate court confirmed a case dismissed on a motion for summary judgment very similar
to the facts at hand. In the Zeringue case, the plaintiff fell near the checkout area of the store.
After her fall she saw green grapes on the floor, some of which had been crushed. Her husband
did not see her fall but when he looked he saw a clear puddle measuring about a square foot with
about a dozen-and-a-half green grapes in the middle, some being crushed. Neither plaintiff nor
her husband could say how long the grapes were on the floor nor how they got there. The stores
protocol was to have employees continuously watch the area for any hazards and if any foreign
substance was noted on the floor to clean it up immediately. The Court held that there was no
evidence that the store had actual or constructive notice of the grapes on the floor prior to the
fall. The store was dismissed on summary judgment at the district court level, and the court of
appeal affirmed that ruling.
This Court finds Brookshire’s argument to be persuasive. Although a wet floor may

present an unreasonable risk of harm, in her affidavit Ms. McDonald has failed to show that
Brookshire knew or had constructive knowledge of the wet substance on the floor or that
Brookshire failed to exercise reasonable care.
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For these reasons, Brookshire and Travelers’ motion for partial summary judgment is
GRANTED, and McDonald’s claims against them are DISMISSED WITH PREJUDICE.
2.

Brookshire’s Cross-Claim against Nationwide

As indicated above, Brookshire and Travelers filed a cross-claim against Nationwide [Doc.
No. 42], alleging that the written contract between Brookshire and Nationwide contained an
indemnity clause which provided that Nationwide would defend, indemnify, and hold Brookshire
harmless from any and all claims, damages, or obligations arising out of the performance of
services in cleaning floors at the Brookshire store.
Here, Nationwide filed a limited opposition in which it stated it did not oppose
Brookshire’s motion for partial summary judgment seeking dismissal of McDonald’s claims
against Brookshire, but that to the extent the motion is deemed to seek a determination that defense
and indemnity is owed to Brookshire by Nationwide, Brookshire failed to meet its burden of proof
[Doc. No. 61].
Brookshire and Travelers did not move for summary judgment on their cross-claim
against Nationwide. Although the Court is dismissing McDonald’s claims against Brookshire
and Travelers, it is unclear at this point what Brookshire may seek or what it may be entitled to,
under the defense and indemnity agreement. Accordingly, the Court expresses no view with
regard to the cross-claim.
III.

CONCLUSION
For the foregoing reasons, Brookshire’s and Travelers’ Motion for Partial Summary

Judgment [Doc. No. 54] is GRANTED. McDonald’s claims against Brookshire and Travelers
are DISMISSED WITH PREJUDICE.
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MONROE, LOUISIANA, this 7th day of June, 2019.

____________________________________
TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE

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