Brown v. Wal-Mart Louisiana L L C
MEMORANDUM RULING re 23 MOTION for Summary Judgment filed by Wal-Mart Louisiana L L C. Based on the foregoing, Wal-Mart's Motion For Summary Judgment will be granted. Signed by Magistrate Judge Carol B Whitehurst on 7/24/2017. (crt,Chicola, C)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
Civil Action No. 16-00310
Magistrate Judge Carol B. Whitehurst
Wal-Mart Stores Inc
By Consent of the Parties
Before the Court is a Motion For Summary Judgment filed by defendant, WalMart Louisiana LLC (“Wal-Mart”), [Rec. Doc. 23], Plaintiff, Derek Wilson Brown’s,
Memorandum In Opposition [Rec. Doc. 28] and Wal-Mart’s Reply thereto [Rec. Doc.
32]. For the reasons that follow, the Court will grant the Motion.
On April 16, 2015 at approximately 3:14 p.m., Plaintiff was allegedly injured
after slipping and falling on a textured metal drain cover outside the Wal-Mart Store
located in Lafayette, Louisiana. The weather on that date was rainy such that the
sidewalk and the textured metal drain cover were saturated with rain water, and
Plaintiff was using an umbrella.1 R. 23-4, Brown Depo.,p. 67, l. 5; p. 94, l. 3-5; R. 235, Video Surveillance; R. 23-6 Screenshot.
The Court notes that the Wal-Mart surveillance video shows customers exiting their cars and
exiting the store with and without umbrellas. R. 23-5, Video Surveillance.
After parking his car in the Wal-Mart parking lot, Plaintiff walked down the
sidewalk toward the right front entrance of the store. R. 23-4, p. 67, l. 13. Overlaying
the sidewalk, perpendicular thereto, was a metal drain cover, covering a gutter
which ran from the roof of the store, through the sidewalk, to the parking lot. Id at p.
68, l. 15-20. Plaintiff stated that as he was walking on the sidewalk he was mostly
looking forward towards the doorway of the store, Id at p. 79, l. 22-23, but saw the
drain cover out of the corner of his eye. Id at p. 79, l. 12-13. When he saw the cover,
he did not think it was a problem and he saw no obstructions. Id, at p. 70, l. 11-16.
Upon stepping on the drain cover, Plaintiff stated his foot slipped, thereby causing
him to fall onto the sidewalk. Id at p. 69, l. 7, 9-11.
Thereafter, on the same date, Plaintiff took a cell phone video of the drain
cover and the location of the accident and took photographs the following day. R. 237 (in globo), 04/16/2015 Cell Phone Video and 04/17/2015 Photographs. Plaintiff
stated that upon inspecting the drain cover he noted there was “a very subtle height
difference” between the edge of the drain cover and the top of the sidewalk. Id at p.
80, l. 10–19. He guessed that the difference was about a quarter inch up to less than
a half an inch. Id at pp. 80, l. 20–p. 81, l. 19. Plaintiff also stated that upon stepping
on the drain cover, he felt like the drain was “sloped.” When he observed the drain
cover after the accident, he stated that it looked “kind of warped,” Id at pp. 76, 1.
19–77, l. 7, “like the sidewalk on one end ... sank a little, and caused the metal to go
down with it,” Id at p. 94, l. 10–18. Finally, Plaintiff stated that, based on his
observation, the grating “seemed to be worn down.” Id at p. 70, l. 22–23.
Plaintiff filed this action in the Fifteenth Judicial District Court, Lafayette
Parish, Louisiana on November 2, 2015. On March 7, 2016, Wal-Mart removed the
case to this Court. R. 1. Wal-Mart filed the instant motion for summary judgment
moving to dismiss Plaintiff’s claims against it. Wal-Mart contends that Plaintiff
cannot prove the drain cover presented an unreasonable risk of harm to Wal-Mart
customers or that such was reasonably foreseeable as required under Louisiana’s slipand-fall statute, La. R.S. 9:2800.6.
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56 instructs that summary judgment is proper
if the record discloses no genuine issue as to any material fact such that the moving
party is entitled to judgment as a matter of law. No genuine issue of fact exists if the
record taken as a whole could not lead a rational trier of fact to find for the
non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio., 475 U.S. 574,
586 (1986). A genuine issue of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat an otherwise
properly supported motion. See id. Therefore, “[i]f the evidence is merely colorable,
or is not significantly probative,” summary judgment is appropriate. Id. at 249-50
(citations omitted). Summary judgment is also proper if the party opposing the motion
fails to establish an essential element of her case. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). In this regard, the non-moving party must do more than
simply deny the allegations raised by the moving party. See Donaghey v. Ocean
Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir.1992). Rather, he must come
forward with competent evidence, such as affidavits or depositions, to buttress his
claims. Id. Hearsay evidence and unsworn documents do not qualify as competent
opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th
Cir.1987). Finally, in evaluating the summary judgment motion, the Court must read
the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at
“In Louisiana, ‘every act ... of man that causes damage to another obliges him
by whose fault it happened to repair it.’ La. Civ. Code art. 2315(A). Under
Louisiana's ‘standard negligence analysis’—the ‘duty-risk analysis’—a plaintiff must
prove five elements: first, that the defendant had a duty to conform his conduct to a
specific standard (duty); second, that the defendant's conduct failed to conform to the
appropriate standard (breach); third, that the defendant's substandard conduct was a
cause in fact of the plaintiff's injuries (cause in fact); fourth, that the defendant's
substandard conduct was a legal cause of the plaintiff's injuries (legal cause); and
fifth, that the plaintiff suffered actual damages (damages).
For ‘merchants’ like Wal-Mart, however, § 9:2800.6 of the Louisiana Revised
Statutes alters this analysis slightly. Merchants ‘owe [ ] a duty ... to exercise
reasonable care to keep [their] aisles, passageways, and floors in a reasonably safe
condition,’ which ‘includes a reasonable effort to keep the premises free of any
hazardous conditions which reasonably might give rise to damage.’ La. Stat. §
9:2800.6(A). When someone sues a merchant for damages ‘as a result of an injury ...
or loss sustained because of a fall due to a condition existing in or on [the] premise,’
the plaintiff must prove ‘in addition to all other elements of [the] cause of action’:
(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; and
(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
La.Rev.Stat. § 9:2800.6(B).” Duncan v. Wal-Mart Louisiana , L.L.C., —F.3d.—,
2017 WL 2991234 (5th Cir. July 14, 2017).
The parties agree that this case is exclusively governed by the Louisiana
Merchant Liability Statute, La.Rev.Stat. § 9:2800.6. In order to recover damages for
injuries sustained in a slip or trip and fall accident, the plaintiff has the burden of
proving all three of the requirements of La. R.S. 9:2800.6(B), and the failure to prove
any requirement is fatal to the cause of action. Alonzo v. Safari Car Wash, Inc., 75
So.3d 509, 511 (La.App. 5 Cir. 9/27/11).
A. Whether the Drain Cover Presented an Unreasonable Risk of Harm
Wal-Mart asserts that Plaintiff cannot overcome the burden to prove that any
“condition” which was unreasonably dangerous contributed to his fall. In determining
whether a condition presents an unreasonable risk of harm, the trier of fact must
balance the gravity and risk of harm against the individual and societal rights and
obligations, the social utility, and the cost and feasibility of repair. Bufkin v. Felipe's
La., LLC, 171 So.3d 851, 856 (La. 2014). In determining whether a condition is
unreasonably dangerous, courts have adopted a risk-utility balancing test. This test
encompasses four factors: (1) the utility of the thing; (2) the likelihood and magnitude
of harm, which includes the obviousness and apparentness of the condition; (3) the
cost of preventing the harm; and (4) the nature of the plaintiff’s activities in terms of
its social utility, or whether it is dangerous by nature. Pryor v. Iberia Parish School
Bd., 60 So.3d 594, 596–97 (La. 2011).
Plaintiff does not dispute that the drain cover served a significant social utility
purpose by diverting rainwater collected by gutter systems to be diverted from
pedestrian walkways. R. 23-3, 28. As to the likelihood and magnitude of harm, federal
and Louisiana state courts have generally held that a potentially dangerous condition
does not present an unreasonable risk of harm where that condition is open and
obvious to all. E.g., Taylor v. Wal–Mart Stores, Inc., 2006 WL 1476031, *2 (W.D.La.
May 23, 2006) (citing Pitre v. La. Tech. Univ., 673 So.2d 585) (La., 1996) (“A
potentially dangerous condition that is open and should be obvious to all is not
unreasonably dangerous.”); Jennings v. Ryan's Family Steak Houses, E., Inc., 2005
WL 2180487, *3 (W.D.La. Sept.9, 2005) (citing Durman v. Billings, 873 So.2d 872
(La.App. 2 Cir. 5/12/04) (“If the risk of harm is obvious, universally known and
easily avoidable, the risk is not unreasonable.”). Thus, the issue in this case is
whether or not the drain cover constituted an unreasonable risk of harm to Plaintiff,
or was the drain cover “open and obvious,” and thus not unreasonably dangerous.
In the instant case, there is no dispute that the drain cover on which Plaintiff
slipped was plainly visible. Furthermore, Plaintiff admitted seeing the drain cover
“out of the corner of his eye.” Plaintiff contends, however, that he didn’t realize
something was wrong with the drain cover until he stepped on it and he felt his foot
sloping down. Plaintiff testified that the height difference on one side of the drain
cover was “maybe a quarter inch” which he agreed was a very subtle height
difference. R. 23, p. 80, l. 13–25. Nonetheless, Plaintiff contends that the height
difference “is of no matter here” because Wal-Mart has presented no evidence to
show exactly what the height differential was. R. 26, p. 9. Wal-Mart, however, relies
on Plaintiff’s own photographs and video in asserting that the following Louisiana
law holds that such a height variation as demonstrated by the evidence in this case is
not unreasonably dangerous. R. 23-3, 31.
In Leonard v. Sam's West, Inc., 2013 WL 121761, at *3 (M.D.La.2013), the
evidence indicated that the depression on which the plaintiff fell was located in a
parking space and was eight inches long. It had an average depth of five-eighths of
an inch and its deepest point was seven-eighths of an inch. The court noted that the
Louisiana Supreme Court has at least three times addressed whether variations in the
surface of sidewalks or parking lots constitute an unreasonable risk of harm. See e.g.,
Reed v. Wal-Mart, 708 So.2d 362, 365 (La. 1998) (holding that a one-half inch
depression was not unreasonably dangerous); Boyle v. Bd. of Supervisors, La. State
Univ., 685 So.2d 1080, 1082 (La. 1997) (depression of one inch to two inches did not
present an unreasonable risk); White v. City of Alexandria, 43 So.2d 618, 620 (La.
1949) (holding that a variance in a sidewalk of one-half inch to two inches did not
present an unreasonable risk of harm).
In Reed, the court explained that the law does not require paved surfaces to
It is common for the surfaces of streets, sidewalks, and parking lots to
be irregular. It is not the duty of the party having garde of the same to
eliminate all variations in elevations existing along the countless cracks,
seams, joints, and curbs. These surfaces are not required to be smooth
and lacking in deviations, and indeed, such a requirement would be
impossible to meet. Rather, a party may only be held liable for those
defects which present an unreasonable risk of harm. The issue in this
case is the proper standard of reviewing, and what is encompassed
within, a finding that a defect presents an unreasonable risk of harm.
Reed, 708 So.2d at 363.
Here, as evidenced by Plaintiff’s video and photographs, the metal drain cover
was a gray, metal cover which ran across the width of (perpendicular to) the sidewalk.
The cover contained an upraised diamond-like pattern which the parties refer to as
“textured.” A bright yellow line was painted along the outer edge of the cover,
parallel with the edge of the curb. R. 23-7. While Plaintiff’s photograph of one edge
of the drain cover taken near ground level, demonstrates a slight rise which Plaintiff
consistently testified was maybe a quarter of an inch—less than a half inch, neither
the photographs nor the video reveal warping or remarkable sloping of the drain.
Further, there is no indication of the upraised diamond-like pattern (texture) being
worn. The Court concludes, in accordance with the Louisiana Supreme Court’s
decisions in White, Boyle and Reed, that the one-quarter to less than one-half inch
height difference in the drain cover was not unreasonably dangerous.
The absence of accident history also supports a finding that the condition was
not unreasonably dangerous. Wal-Mart provided an affidavit of the Wal-Mart
Personnel Manager and former Safety Team Leader, Crystal Craig dated May 10,
2017, who stated that she has been continuously employed at the Wal-Mart Store
since it opened in 2000. R. 23-10. Craig avers that she is personally familiar with all
prior accidents, including previous slip/trip and fall accidents reported by customers
at the Wal-Mart Store as well as the records documenting same. Id. Craig states that
since the Wal-Mart Store opened in September, 2000, Plaintiff’s accident is the only
slip/trip and fall accident to have occurred on any storm drain cover at the location
where Derek Brown slipped. Id. As it is undisputed that the first accident did not
occur during the drain cover’s existence of seventeen years—the risk of injury was
The Louisiana Supreme Court considered the gravity and risk of harm against
the cost and feasibility of repair, social utility, and individual and societal rights and
obligations. Reed, 708 So.2d at 363–64. The Supreme Court has recognized that,
although the cost of repair of a particular issue such as in this case might be minimal,
the “cost to eliminate all such minor defects is staggering.” Reed, 708 So.2d at 366.
The Court further noted that the cost of “maintain[ing] such surfaces free from defects
is likely impossible, and is certainly cost-prohibitive.” Id.; see also Boyle, 685 So.2d
Finally, it is undisputed, and the jurisprudence confirms that a covered drain
in the sidewalk which diverts rain water from the sidewalk and pedestrians, such as
the one at issue in this case, has social utility and does not create an unreasonable risk
of harm. See e.g. Baker v. State, Dept. of Health and Human Resources, 921 So.2d
1209, 1214 (La.App. 3 Cir.,2006) (A 3/8 inch deviation between the sidewalk and
drain cover did not pose an unreasonable risk of harm.).
Accordingly, considering the factors outlined by Louisiana law and applying
the risk–utility balancing test and applicable substantive law, the Court finds that the
one quarter inch to less than one half inch deviation in the sidewalk and the drain
cover does not rise to the level of an unreasonably dangerous condition.
Based on the foregoing, Wal-Mart’s Motion For Summary Judgment will be
Thus done and signed this 24th day of July, 2017 at Lafayette, Louisiana.
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