United States District Court, W.D. Louisiana, Lake Charles Division
PATRICIA MINALDI, District Judge.
Before the court is a Motion for Summary Judgment [Doc. 11], filed by Wal-Mart Louisiana, LLC ("Wal-Mart"), to which the pro se plaintiff,  Eva Matthews White ("White"), has filed no Opposition. For the following reasons, Wal-Mart's motion [Doc. 11] is GRANTED.
FACTS & PROCEDURAL HISTORY
On June 3, 2012, White was visiting Wal-Mart with her husband when she fell after slipping on berries left on the floor in the automotive department. White injured her neck, hip, lower back, and shoulder in the fall at Wal-Mart. Neither White nor her husband were able to determine the origin of the berries or the length of time the berries were on the floor.
On June 3, 2013, White filed suit against Wal-Mart in the 14th Judicial District Court for the State of Louisiana. Wal-Mart removed the case to this court on September 4, 2013, pursuant to the court's diversity jurisdiction under 28 U.S.C. § 1441. Wal-Mart then filed the instant motion on October 27, 2014, alleging that White is unable to satisfy a prima facie case of negligence.
LAW & ANALYSIS
A grant of summary judgment is appropriate where "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 dispute is said to be "genuine" only where a "reasonable jury could return a verdict for the non-moving party." Dizer v. Dolgencorp, Inc., No. 3:10-cv-699, 2012 U.S. Dist. LEXIS 24025, at *16 (W.D. La. Jan. 12, 2012) (citing Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006)). "Rule 56[(a)] mandates the entry of summary judgment... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Webber v. Christus Schumpert Health Sys., No. 10-1177, 2011 U.S. Dist. LEXIS 99235, at *14 (W.D. La. Sept. 2, 2011) (citing Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004)).
In determining whether to grant a motion for summary judgment, the motion "cannot be granted simply because there is no opposition, even if the failure to oppose violated a local rule." Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985) (citing John v. La. (Bd. of Trustees for State Colleges & Universities), 757 F.2d 698, 709 (5th Cir. 1985)). However, when faced with an absence of proof, there is no assumption made that the nonmoving party could or would prove the necessary facts. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)). Moreover, the Local Rules for the Western District of Louisiana provide that "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed admitted, for the purposes of the motion, unless controverted as required by this rule." Unif. Loc. R. La. LR 56.2. Therefore, the facts submitted by Wal-Mart are deemed admitted for purposes of determining whether to grant Wal-Mart's Motion for Summary Judgment [Doc. 11].
Wal-Mart asserts that it is entitled to summary judgment because White is able to create neither a genuine dispute as to a material fact over (1) whether Wal-Mart caused the berries in question to be on the floor, nor over (2) whether Wal-Mart had any actual or constructive notice of the berries on the floor. Louisiana Revised Statute 2800.6 provides that plaintiffs must satisfy an additional burden of proof in negligence claims against merchants arising from a fall:
[T]he claimant shall have the burden of proving, in addition all other elements of [her] cause of action, all of the following:
(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, ...