Washington v. Wal-Mart Stores Inc et al

Filing 13

MEMORANDUM RULING denying 6 Motion for Summary Judgment. Defendants may re-urge their motion once discovery has been completed. This matter is REFERRED to the Magistrate Judge for a scheduling conference. Signed by Judge Elizabeth E Foote on 5/24/2017. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
____________________________________________________________
STACEY WASHINGTON

CIVIL ACTION NO. 16-1403

VERSUS

JUDGE ELIZABETH ERNY FOOTE

WAL-MART STORES, INC. &
WAL-MART LOUISIANA, LLC
MAGISTRATE JUDGE HORNSBY
______________________________________________________________________
MEMORANDUM RULING
Before the Court is Defendants’, Wal-Mart Stores, Inc. and Wal-Mart Louisiana,
LLC’s (“Defendants”), motion for summary judgment. Record Document 6. Plaintiff filed
a complaint in state court for damages allegedly suffered as a result of a slip and fall in
a Wal-Mart store in Shreveport, Louisiana. Record Document 1-5. The case was
subsequently removed and Defendants’ motion for summary judgment was filed shortly
thereafter. Record Documents 1, 6. For the reasons discussed below, Defendants’
motion [Record Document 6] is DENIED. Defendants may re-urge their motion once
discovery has been completed.
I. Background
Plaintiff Stacey Washington alleges that on April 24, 2015, she slipped on a clear
liquid substance at a Wal-Mart store and suffered severe injuries. Record Document 15. Initially, there was some confusion over where the alleged accident occurred.
Plaintiff’s counsel sent a letter to the Wal-Mart store in Mansfield, Louisiana (“the
Mansfield store”), dated May 4, 2015, advising that counsel was representing Plaintiff in

connection with a fall at that store on April 24, 2015. Record Document 10-2, p. 41.
Plaintiff’s counsel also states that he sent an identical letter addressed to the Wal-Mart
store on Mansfield Road in Shreveport, Louisiana (“the Shreveport store”), dated May 7,
2015, also advising of a fall at that store on April 24, 2015. Record Document 9-2, p. 4.
Plaintiff’s counsel subsequently filed two lawsuits in April 2016: one against the
Mansfield store (Record Document 10-2, p. 1) and one against the Shreveport store
(Record Document 10-2, p. 10), both claiming damages from a fall occurring on April
24, 2015. The parallel suits, and much resulting confusion, continued until Plaintiff’s
deposition on June 10, 2016, during which Plaintiff’s counsel stated that there was only
one fall, and that the claim against the Mansfield store was brought in error, a result of
confusion between Mansfield Road in Shreveport and the town of Mansfield. Record
Document 10-2, p. 22.
The parties conducted discovery, but it was muddled by the two suits. For
example, Defendants served answers to Plaintiff’s interrogatories and requests for
production, but many of the answers refer to the Mansfield store while several of the
questions refer to the Shreveport store. Record Document 9-3.
About six months after the suit was filed, Defendants determined that the claim
against them had exceeded $75,000 and removed the case. Record Document 1.
Defendants then moved for summary judgment, arguing that there is no genuine
dispute of material fact as to whether Defendants created or had actual or constructive
notice of a spilled liquid that allegedly caused Plaintiff’s fall. Record Document 7.

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Plaintiff responds that the motion for summary judgment is premature because Plaintiff
has not been allowed adequate time for discovery. Record Document 9. Plaintiff argues
that under Federal Rule of Civil Procedure 56(d), the Court should allow additional time
for discovery.
II. Discussion
A. Standard of Review
Rule 56(d) provides: “If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, the court
may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.”
The nonmoving party must specify why additional discovery is needed and “how
the additional discovery will create a genuine issue of material fact,” not simply “rely on
vague assertions that additional discovery will produce needed, but unspecified facts.”
Krim v. BancTexas Grp., Inc., 989 F.2d 1435, 1442 (5th Cir. 1993).
B. Negligence Standard
Under Louisiana law, a merchant owes a duty to patrons to exercise reasonable
care to keep its premises in a reasonably safe condition. La. R.S. 9:2800.6(A). When a
party claims that she has been injured as a result of a condition existing on the
merchant’s premises, that party must prove:

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“(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.” La. R.S. 9:2800.6(B).
Defendants argue that summary judgment is appropriate because Plaintiff has
not shown that there was any condition that presented an unreasonable risk of harm or
that Defendants created or had actual or constructive notice of any condition. Record
Document 7, p. 8. Plaintiff counters that she has not been able to conduct the discovery
that would create a dispute of fact as to these elements.
C. Additional Discovery
Plaintiff asserts three related claims in support of her argument that the motion
for summary judgment is premature and time for additional discovery should be
allowed: (1) Defendants’ discovery responses relate to the Mansfield Wal-Mart Store,
rather than the Shreveport Wal-Mart Store, (2) Defendants have not identified the
employees working at the time of Plaintiff’s fall, as requested during discovery, and (3)
Defendants have not produced requested surveillance videos related to Plaintiff’s fall.
Record Document 9, pp. 4-5. Plaintiff’s counsel attaches his affidavit alleging that the
additional discovery is necessary to determine whether any Wal-Mart employee had
actual or constructive notice of the liquid that allegedly caused Plaintiff’s fall. Record
Document 9-2.

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Plaintiff first asserts that the motion for summary judgment is premature
because “all of the defendants’ discovery responses appear to relate to the Mansfield,
Louisiana Wal-Mart not the Wal-Mart on Mansfield Road [in Shreveport] where this
accident is alleged to have occurred.” Record Document 9, p. 4. Understandably,
Defendants operated on the belief that there were in fact two lawsuits until Plaintiff’s
counsel stated otherwise. Record Document 9-4, pp. 1, 14. The result is a confusing set
of interrogatories and answers, where some of Defendants’ answers are specifically
addressed to the Mansfield store, even though the case number in the caption indicates
Defendants are responding to the petition filed against the Shreveport store, and some
of the questions are specifically addressed to the “City of Shreveport store.” Record
Document 9-3, pp. 2-9. Other answers contend that Defendants have no knowledge to
answer certain questions because they “were not aware of plaintiff’s alleged fall at the
City of Shreveport Store until service of the Petition,” although Plaintiff contends that
she sent letters to both the Shreveport store and the Mansfield store in early May,
2015, shortly after the accident, notifying both stores of the claims. Record Document
9-3, p. 5.
Plaintiff also asserts that the motion for summary judgment is premature
because Defendants have not provided a list of which employees were working at the
Shreveport store at the time of Plaintiff’s fall. Defendants’ answer to Plaintiff’s
interrogatory on this point states that they “will identify the relevant personnel working
the shift at the time when plaintiff alleges that she fell and will supplement their

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responses accordingly.” Record Document 9-3, p. 4. During Plaintiff’s deposition, she
alleged that she fell between 2:00 p.m. and 4:00 p.m. Record Document 6-2, p. 6.
Defendants apparently have not supplemented their responses. Plaintiff’s counsel, in his
affidavit, states that identifying those employees would allow him to depose them as to
whether they had actual or constructive notice of a liquid on the floor that caused
Plaintiff’s fall. Record Document 9-2, p. 2.
Finally, Plaintiff alleges that the motion for summary judgment is premature
because Defendants have not produced requested surveillance videos from the
Shreveport store on the day of Plaintiff’s alleged fall. Record Document 9, p. 5. In
response to the request for production of any surveillance videos, Defendants
responded that they were “not aware of any photographs or video footage of plaintiff’s
alleged fall.” Record Document 9-3, p. 8. Plaintiff contends such an answer gives rise to
a concern of spoliation of evidence, since Plaintiff notified Defendants of her injury in
the letter dated May 7, 2015, only a few weeks after the fall. Record Document 9, p. 5.
Defendants’ interrogatory answers state that they had no notice of the alleged fall in
the Shreveport store until the petition was filed in April 2016, suggesting they may not
have received the letter Plaintiff claims to have sent. Record Document 9-3, p. 5. The
Court need not pass judgment what is, at this point, only speculation. The Court need
only determine whether Plaintiff has shown that she is unable to marshal facts
necessary to her defense, and specifically explain how additional discovery could create
a genuine dispute of material fact. Plaintiff has satisfied this burden.

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Both parties agree that Plaintiff is required to show that Defendants created or
had actual or constructive notice of the spilled liquid that allegedly caused Plaintiff’s fall.
Because of the confusion created by Plaintiff’s mistake as to the location of the fall and
the relatively quick pace at which this litigation has proceeded, discovery did not
provide Plaintiff with a meaningful opportunity to determine whether there are facts
that could show that Defendants created or had actual or constructive notice of a spilled
liquid on April 24, 2015 at the Shreveport Wal-Mart store. Plaintiff’s counsel has
specifically sworn that additional discovery could lead to facts necessary to oppose a
motion for summary judgment, including Defendants’ answers to discovery specifically
related to the Shreveport store, facts that might be obtained from employees working
at the Shreveport store, and facts related to when the Shreveport store had notice of
Plaintiff’s claim and whether video evidence at the Shreveport store existed or should
have been preserved. Such evidence could create a genuine dispute of material fact.
The motion for summary judgment is therefore premature.
III. Conclusion
For the reasons discussed above, Defendants’ motion [Record Document 6] is
DENIED. Defendants may re-urge their motion once discovery has been completed.
This matter is REFERRED to the Magistrate Judge for a scheduling conference. The
Magistrate Judge may choose to allow for discovery limited to only those issues
discussed in the Rule 56(d) request.

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THUS DONE AND SIGNED in Shreveport, Louisiana, this 24th day of May,
2017.

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