Derousselle v. Wal-Mart Stores Inc
MEMORANDUM RULING re 19 MOTION for Summary Judgment filed by Wal-Mart Louisiana L L C. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained herein, this Court grants the motion and dismisses the plaintiff's claims with prejudice. Signed by Magistrate Judge Patrick J Hanna on 2/6/2017. (crt,Alexander, E)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 6:16-cv-01047
MAGISTRATE JUDGE HANNA
WAL-MART LOUISIANA, LLC
BY CONSENT OF THE PARTIES
Currently pending is the motion for summary judgment (Rec. Doc. 19), which
was filed by the defendant, Wal-Mart Louisiana, LLC. The motion is opposed, and
oral argument was held on January 24, 2017. Considering the evidence, the law, and
the arguments of the parties, and for the reasons fully explained below, this Court
grants the motion and dismisses the plaintiff’s claims with prejudice.
Beatrice Derousselle, the plaintiff in this lawsuit, alleged that she was injured
in a slip-and-fall in the Opelousas Wal-Mart store. She alleged that she entered the
store about 7:30 on the morning of Saturday, September 26, 2015 and proceeded to
the cold cuts section of the store’s meat department to buy some bacon. As she
walked down the aisle, she allegedly fell to the ground, injuring her left hip. When
the store’s assistant manager Craigory Sam investigated the incident, he found a green
grape with skid marks from the plaintiff’s shoe. The plaintiff alleged that her
stepping on the grape caused her fall and the resulting injuries.
The plaintiff was deposed. Mr. Sam and three additional Wal-Mart employees
were also deposed. None of them witnessed the incident, and none of them knows
where the grape came from or how long it was on the floor before the accident.
Wal-Mart produced surveillance video that shows the aisle where the accident
happened, starting at 6:30 that morning. Although several people – Wal-Mart
employees and customers – used the aisle in the hour before the accident, the grape
cannot be seen on the video, and no one else slipped or fell. In fact, the plaintiff
walked down the aisle in a direction away from the camera, then turned around and
walked back toward the camera, covering the same part of the aisle for the second
time just before she fell.
The plaintiff claims that Wal-Mart is liable for her fall and the resulting
injuries, while Wal-Mart argues that the plaintiff has not proven that it is liable.
THE SUMMARY JUDGMENT STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment
is appropriate when there is no genuine dispute as to any material fact, and the
moving party is entitled to judgment as a matter of law. A fact is material if proof of
its existence or nonexistence might affect the outcome of the lawsuit under the
applicable governing law.1 A genuine issue of material fact exists if a reasonable jury
could render a verdict for the nonmoving party.2
The party seeking summary judgment has the initial responsibility of informing
the court of the basis for its motion and identifying those parts of the record that
demonstrate the absence of genuine issues of material fact.3 If the moving party
carries its initial burden, the burden shifts to the nonmoving party to demonstrate the
existence of a genuine issue of a material fact.4 All facts and inferences are construed
in the light most favorable to the nonmoving party.5
If the dispositive issue is one on which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by pointing out that
there is insufficient proof concerning an essential element of the nonmoving party's
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Sossamon v. Lone
Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009); Hamilton v. Segue Software, Inc., 232 F.3d
473, 477 (5th Cir. 2000).
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008), citing Anderson v. Liberty
Lobby, Inc., 477 U.S. at 252; Hamilton v. Segue Software, Inc., 232 F.3d at 477.
Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007), citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
Washburn v. Harvey, 504 F.3d at 508.
Brumfield v. Hollins, 551 F.3d at 326, citing Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986).
claim.6 The motion should be granted if the nonmoving party cannot produce
evidence to support an essential element of its claim.7
When both parties have submitted evidence of contradictory facts, a court is
bound to draw all reasonable inferences in favor of the nonmoving party.8 The court
cannot make credibility determinations or weigh the evidence, and the nonmovant
cannot meet his burden with unsubstantiated assertions, conclusory allegations, or a
scintilla of evidence.9 “When all of the summary judgment evidence presented by
both parties could not lead a rational trier of fact to find for the nonmoving party,
there is no genuine issue for trial and summary judgment is proper.”10
Interpretations of statutory provisions that are dispositive and raise only
questions of law, there being no contest as to the operative facts, are particularly
appropriate for summary judgment.11
Norwegian Bulk Transport A/S v. International Marine Terminals Partnership,
520 F.3d 409, 412 (5th Cir. 2008), citing Celotex Corp. v. Catrett, 477 U.S. at 325.
Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5th Cir. 2005).
Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).
Boudreaux v. Swift Transp. Co., Inc., 402 F.3d at 540.
Greene v. Syngenta Crop Protection, Inc., 207 F.Supp.2d 537, 542 (M.D. La.
2002), citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Dobbs v. Costle, 559 F.2d 946, 947 (5th Cir. 1977). See, also, Kemp v. G.D.
Searle & Co., 103 F.3d 405, 407 (5th Cir. 1997) (“questions of statutory interpretation are
questions of law.”).
THE APPLICABLE STATUTE
In a diversity case such as this one, we apply state substantive law, here
Louisiana law.12 Therefore, Wal-Mart’s liability for the plaintiff’s accident and injury
is governed by the Louisiana Merchant Liability Act, La. R.S. 9:2800.6, which reads
as follows in its entirety:
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.
In a negligence claim brought against a 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 his cause of action, all of the
(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. In determining
reasonable care, the absence of a written or verbal uniform cleanup or
safety procedure is insufficient, alone, to prove failure to exercise
Moore v. State Farm Fire & Cas. Co., 556 F.3d 264, 269 (5th Cir. 2009); Erie R.R.
Co. v. Tompkins, 304 U.S. 64, 78 (1938).
(1) “Constructive notice” means the claimant has proven that 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 of reasonable care should
have known, of the condition.
(2) “Merchant” means one whose business is to sell goods, foods,
wares, or merchandise at a fixed place of business. For purposes of this
Section, a merchant includes an innkeeper with respect to those areas or
aspects of the premises which are similar to those of a merchant,
including but not limited to shops, restaurants, and lobby areas of or
within the hotel, motel, or inn.
Nothing herein shall affect any liability which a merchant may
have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.
The statute requires a plaintiff to prove three things: (1) there was a condition
that presented an unreasonable risk of harm, (2) the merchant either created the
condition or had actual or constructive notice of the condition, and (3) the merchant
failed to exercise reasonable care. If the plaintiff fails to prove any one of those three
elements, the merchant is not liable. The Louisiana Supreme Court has found this
statute to be clear and unambiguous.13
White v. Wal-Mart Stores, Inc., 97-0393 (La. 09/09/97), 699 So.2d 1081, 1084.
THE PLAINTIFF FAILED TO PROVE THAT WAL-MART IS LIABLE
In this case, it is alleged that a grape, which was found after the accident and
presumably caused the plaintiff’s fall, was a condition that presented an unreasonable
risk of harm. It is undisputed that a grape with skid marks on it was found by WalMart’s manager after the plaintiff’s fall. Therefore, there is no dispute regarding the
first of the three elements necessary for a successful merchant liability claim.
The plaintiff contends that Wal-Mart either created the unreasonably risky
condition or had actual or constructive notice of the condition. In other words, it is
alleged that either (1) a Wal-Mart employee caused the grape to be on the floor of the
cold cuts department in the plaintiff’s path, (2) a Wal-Mart employee knew that the
grape was on the floor of the cold cuts department in the plaintiff’s path, or (3) the
grape was on the floor of the cold cuts department in the plaintiff’s path for such a
period of time that it would have been discovered had Wal-Mart exercised reasonable
care. Wal-Mart argues, however, that the plaintiff cannot prove this second element
of her cause of action, and this Court agrees.
Significantly, the plaintiff presented no evidence establishing that Wal-Mart
caused the grape to be on the floor or that any Wal-Mart employee actually knew,
before the accident, that the grape was on the floor. Therefore, the plaintiff can
prevail only if she proves that Wal-Mart had constructive knowledge of the grape’s
The Louisiana Supreme Court explained the constructive knowledge
requirement as follows:
Though there is no bright line time period, a claimant must show that
“the condition existed for such a period of time. . . ” Whether the period
of time is sufficiently lengthy that a merchant should have discovered
the condition is necessarily a fact question; however, there remains the
prerequisite showing of some time period. A claimant who simply
shows that the condition existed without an additional showing 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.14
In other words, “[t]he Louisiana Supreme Court has interpreted this statute to mean
that the plaintiff has the burden of showing the dangerous condition existed for some
discrete period of time; it is not enough simply to show that the condition existed
before the plaintiff's injury.”15 In this case, however, the plaintiff has presented no
evidence that the grape was on the floor of the cold cuts department for any period
of time before the plaintiff’s accident.
White v. Wal-Mart Stores, Inc., 699 So.2d at 1084-85.
Adams v. Dolgencorp, L.L.C., 559 Fed. App’x 383, 385 (5th Cir. 2014).
The plaintiff testified at her deposition that she did not know where the grape
came from or how it got on the floor in the cold cuts section of the meat department
of the Wal-Mart store.16 She testified that she does not know how long the grape was
on the floor before she stepped on it.17 She did not see the grape before the accident,
and she did not know that she had slipped on a grape until after the accident when
people around her told her she had slipped on a grape.18 She said: “All I know is I
went sliding.”19 Similarly, each of the four Wal-Mart employees who were deposed
– manager Craigory Sam, meat department employees Fannie Stelly and Ella
Guilbeaux, and candy department employee Theresa McNeil – testified that they did
not know how the grape got on the floor or how long it was there before the
plaintiff’s accident. Accordingly, the plaintiff failed to prove that Wal-Mart created
the condition that caused the plaintiff’s accident and resulting injury.
Ella Guilbeaux was employed by Wal-Mart as a sales clerk at the time of the
accident, and she was stocking the candy aisle when the accident occurred.20 At the
time, Guilbeaux did not know what caused the plaintiff to fall, but she learned
Rec. Doc. 19-4 at 26.
Rec. Doc. 19-4 at 26, 28.
Rec. Doc. 19-4 at 23-24.
Rec. Doc. 19-4 at 26.
Rec. Doc. 19-15 at 7-9, 11.
afterwards that the plaintiff had slipped on a grape.21 Guilbeaux testified that she did
not know where the grape came from or how long it was on the floor before the
accident.22 She also testified that if she had seen something on the floor, she would
have picked it up.23
At the time of the plaintiff’s accident, Theresa McNeil was employed by WalMart in the cold cuts department.24 On the morning of the plaintiff’s accident,
McNeil was stocking the cold cuts area.25 She did not witness the plaintiff’s fall but
observed her on the floor soon after the fall.26 She testified that she did not see a
grape on the floor in the area where the plaintiff fell but she also testified that if she
had seen a grape or any other trash or spill on the floor while she was stocking the
cold cuts department she would have picked it up.27
Rec. Doc. 19-15 at 15.
Rec. Doc. 19-15 at 15.
Rec. Doc. 19-15 at 17.
Rec. Doc. 19-12 at 3.
Rec. Doc. 19-12 at 3.
Rec. Doc. 19-12 at 3.
Rec. Doc. 19-12 at 5.
Fannie Stelly was working in the meat department at Wal-Mart when the
accident occurred.28 She testified that her job duties include cleaning the floor when
there are spills and walking her area to make sure there is nothing on the floor that
might cause a fall.29 Stelly was in the back room when the plaintiff fell.30 After the
accident occurred, Stelly heard that the plaintiff had fallen on a grape, but she had no
idea where the grape came from or how long it was on the floor before the accident.31
Craigory Sam was employed by Wal-Mart as a manager at the time of the
plaintiff’s accident.32 He went to the scene of the accident after an employee used the
intercom to alert management that a customer had had an accident.33 He observed a
grape on the floor, and he determined that the grape had caused the plaintiff’s fall.34
However, he did not know how the grape came to be at the location where the fall
occurred or how long the grape had been there before the plaintiff fell.35
Rec. Doc. 19-14 at 6, 9.
Rec. Doc. 19-14 at 9-10.
Rec. Doc. 19-14 at 10.
Rec. Doc. 19-14 at 21-22.
Rec. Doc. 19-13 at 9.
Rec. Doc. 19-13 at 10-12.
Rec. Doc. 19-13 at 17.
Rec. Doc. 19-13 at 18.
This Court has carefully reviewed the videotape placed into evidence.36 The
videotape does not show a grape on the floor at the site of the accident at any time.
Therefore, the videotape does not depict how long the grape was on the floor before
the plaintiff’s accident.
In summary, the plaintiff has presented no evidence showing how the grape
came to be at the location of the accident. Therefore, this Court finds that the plaintiff
has not proven that Wal-Mart created the condition that led to the accident or that
Wal-Mart had any actual notice of the existence of the condition. Similarly, because
the plaintiff has not proven that the grape was on the floor of the Wal-Mart store for
a period of time before the accident, the plaintiff has failed to prove that Wal-Mart
had constructive notice of the condition. Because the plaintiff cannot prove the
second element of the three-part test for merchant liability, it is not necessary for this
Court to address the third element, i.e., whether Wal-Mart exercised reasonable care.
Furthermore, the plaintiff’s inability to prove the second element mandates summary
judgment in Wal-Mart’s favor.
Rec. Doc. 19-5.
THE JURISPRUDENCE SUPPORTS SUMMARY JUDGMENT
The factual scenario presented in this case is similar to that of other cases
where summary judgment has been rendered in favor of a merchant. The seminal
case on constructive notice in merchant liability situations is White v. Wal-Mart
Stores, Inc.37 There, a female customer in a Wal-Mart store slipped and fell in a
liquid substance on the floor of the snacks aisle. The trial court found for the plaintiff
and awarded damages, the appellate court affirmed, but the Louisiana Supreme Court
reversed the lower courts, finding that the applicable statute had not been properly
applied. While the claimant had proven that a liquid substance was on the floor at the
time of her fall, she had not proven that it had been there for some period of time.
Therefore, she had not proven that the merchant defendant had constructive notice of
the condition that allegedly caused her fall. The court said: “Plaintiff presented
absolutely no evidence that the liquid was on the floor for any length of time. This
complete lack of evidence falls far short of carrying the burden of proving that the
liquid had been on the floor for such a period of time that the defendant should have
discovered its existence.”38
White v. Wal-Mart Stores, Inc., 699 So.2d 1081 (La. 1997).
White v. Wal-Mart Stores, Inc., 699 So.2d at 1086.
In Taylor v. Wal-Mart Stores, Inc.,39 the same result was reached. There, a lady
slipped and fell on water in a check-out lane at a New Orleans Wal-Mart. The
plaintiff relied on video surveillance showing a steady stream of customers flowing
through the check-out lane for an hour before the accident. It does not appear that
anyone looked at the floor of the area during that time, and nobody else slipped or
fell. The plaintiff argued that no Wal-Mart employee inspected the area for water
during that time period, suggesting that Wal-Mart failed to exercise reasonable care.
But the district court found, and the Fifth Circuit agreed, that the plaintiff was
required to make a positive showing of the existence of the condition for some time
period prior to the fall. Because the video did not show the water on the floor, no
such showing was made. The courts found that it was not enough to speculate that
the water must have been there for over an hour because the video failed to show the
water being spilled on the floor during the hour preceding the fall. The courts agreed
that the plaintiff failed to establish the notice element of her claim. The district court
granted summary judgment in Wal-Mart’s favor, and the Fifth Circuit affirmed.
The Fifth Circuit followed Taylor in ruling on Adams v. Dolgencorp, L.L.C.40
There, a female customer fell in a Dollar General store. After the accident, it was
Taylor v. Wal-Mart Stores, Inc., No. 10-1503, 2011 WL 3439928 (E.D. La. Aug.
8, 2011), aff’d 464 Fed. App’x 337 (5th Cir. 2012).
Adams v. Dolgencorp, L.L.C., 559 Fed. App’x 383 (5th Cir. 2014).
discovered that she had slipped in lotion that had been spilled on the floor. Video
surveillance did not show the lotion on the floor or an event resulting in the lotion
being spilled. Two employees were working nearby, but they did not see the lotion
on the floor before the accident occurred. The court found that the plaintiff failed to
produce evidence showing that Dollar General had actual or constructive knowledge
of the spilled lotion or any evidence showing when or how the lotion was spilled.
The appellate court affirmed the district court’s granting of summary judgment in
Dollar General’s favor.
The same result was also reached in Mohammed v. P.F. Chang’s China
Bistro.41 There, a customer at a P.F. Chang’s restaurant slipped and fell while
walking to the restroom. When she got up, she found that her pants were wet and
concluded that she had slipped in a liquid substance on the floor. The plaintiff argued
that a spill in the kitchen had been tracked on an employee’s shoes to the area near
the kitchen and restroom doors. Citing White and Taylor, the court found that the
plaintiff failed to meet her burden of proving that the liquid was on the floor for any
length of time. The appellate court affirmed the district court’s granting of summary
judgment in the restaurant’s favor.
Mohammed v. P.F. Chang’s China Bistro, 548 Fed. App’x 236 (5th Cir. 2013).
The result reached in Bearb v. Wal-Mart Louisiana, Ltd.,42 was consistent.
There, the plaintiff slipped on a liquid in the Marksville Wal-Mart. But she offered
only speculation as to how the liquid might have gotten on the floor, suggesting that
it might have leaked from a skylight or off of wet shopping carts, and no evidence
was presented establishing how long the water was on the floor before her accident.
The appellate court affirmed the district court’s granting of summary judgment in
The facts presented in the instant case are virtually identical to those of the
cases cited above. The plaintiff can establish a condition – the green grape – but she
cannot establish actual or constructive notice. Therefore, Wal-Mart is entitled to
summary judgment in its favor.
Because the plaintiff has not proven the notice element of her claim for
merchant liability, Wal-Mart’s motion for summary judgment (Rec. Doc. 19) is
GRANTED, and the plaintiff’s claims are dismissed with prejudice.
Signed at Lafayette, Louisiana on this 6th day of February 2017.
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE
Bearb v. Wal-Mart Louisiana, Ltd., 534 Fed. App’x 264 (5th Cir. 2013)
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