United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
Before the Court is a Motion for Summary Judgment filed by Defendant Wal-Mart Stores, Inc. on May 21, 2014. (R. Doc. 17). Defendant filed a Supplemental Memorandum (R. Doc. 19), to submit excerpts from Plaintiff's deposition transcript identified in Defendant's original memorandum (R. Doc. 19-1, "Johnson Dep."). Plaintiff sought (R. Doc. 21, 23) and was granted leave on August 6, 2014 (R. Doc. 24) to file her Opposition (R. Doc. 26) beyond the deadlines prescribed by the Court's Local Rules and the Federal Rules of Civil Procedure. Defendant filed a Reply on August 22, 2014. (R. Doc. 32).
In addition to supporting memoranda, Local Rule 56.1 requires a Motion for Summary Judgment to "be accompanied by a separate, short and concise statement of the material facts" that the movant contends are undisputed. Likewise, a party opposing summary judgment must also include, along with her opposition, "a separate, short and concise statement of the material facts as to which there exists a genuine issue to be tried." LR 56.2. If the opposing party fails to do so, all of the undisputed material facts set forth in the moving party's statement "will be deemed admitted, for purposes of the motion, unless controverted as required by this rule." Here, Defendant filed a Statement of Uncontested Material Facts (R. Doc. 17-2) along with its Motion for Summary Judgment, and Plaintiff filed a Statement of Contested Facts along with her Opposition (R. Doc. 26 at 6).
Having allowed the parties to fully brief the substantive issues, and having considered their arguments, the record and the applicable law, the Court GRANTS Defendant's Motion for Summary Judgment.
In this personal injury action, Plaintiff Marguriete Johnson alleges injuries and damages sustained after she slipped and fell on a liquid substance at Defendant's store located on O'Neal Lane in Baton Rouge, Louisiana, on July 10, 2012. (R. Doc. 1-1 at 1). In her deposition, Plaintiff testified that she slipped and fell just after she entered the register line for the self-checkout area, and prior to placing her items on the shelf. (R. Doc. 17-1 at 1-2; Johnson Dep. at 48). Plaintiff testified that she slipped on a "big puddle" of "clear water" that measured "several feet" in circumference and "was all around the register." (R. Doc. 17-1 at 2; Johnson Dep. at 58). Plaintiff testified that she did not know the source of the water. (R. Doc. 17-1 at 2; Johnson Dep. at 58). Plaintiff testified that she observed no track marks or buggy marks through the water. (R. Doc. 17-1 at 2; Johnson Dep. at 58). Plaintiff testified that she had no information suggesting how the water came to be on the floor, whether a Wal-Mart employee caused it to be on the floor, how long the water was on the floor before her slip, or whether a Wal-Mart employee was aware the water was on the floor prior to the slip. (R. Doc. 17-1 at 2; Johnson Dep. at 60-61). Plaintiff testified that after her spill someone mopped up the water. (Johnson Dep. at 60).
Based on the foregoing testimony, Defendant argues that Plaintiff cannot establish that it had actual or constructive notice of the liquid on the floor prior to the slip and fall. (R. Doc. 17-1 at 6-9). Because Plaintiff cannot establish the element of actual or constructive notice, Defendant requests the Court to grant summary judgment in its favor.
In opposition, Plaintiff argues that summary judgment is inappropriate because "the evidence provides a reasonable factual basis that the wet floor created an unreasonable risk of harm for the plaintiff." (R. Doc. 26 at 4). Plaintiff suggests that Defendant had actual or constructive notice of the spill because (1) the Plaintiff's fall was "at or near the self service register which is used by many customers in a store with the high volume as Wal-Mart" and (2) Defendant "has photos of the scene and surveillance video that shows the accident and the purpose of the surveillance is for this particular purpose, to keep the isles and floor clear of any unreasonable risk and danger to its patrons." (R. Doc. 26 at 4). Plaintiff alleges that the following are contested facts:
1. Defendant Wal-Mart either created or had constructive notice of the spill which caused the damage prior to the occurrence.
2. Defendant's surveillance video will indicate that Wal-Mart knew or should have known of the spill on the floor because the video is used to ensure that the aisles are safe for its patrons.
3. Photographs of the scene in possession of the defendant Wal-Mart will show that the condition of the aisle was unsafe for patrons and it failed to remedy the condition.
4. Defendant has provided no evidence nor affidavit that it did not have constructive notice and that [it] did not know a substance was on the floor. (R. Doc. 26 at 6). Plaintiff has not submitted any evidence in support of her opposition to summary judgment.
II. SUMMARY JUDGEMENT STANDARD
Summary judgment shall be granted when there are no genuine issues as to any material facts and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. When a motion for summary judgment is properly made and supported under Rule 56(c), the opposing party may not rest on the mere allegations of its pleadings, but rather must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed.R.Civ.P. 56(c)(1). The non-movant's evidence is to be believed for purposes of the motion and all justifiable inferences are to be drawn in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, summary judgment must be entered against the plaintiff, on a properly supported defense motion, if the plaintiff fails to make an evidentiary showing in its opposition to the motion sufficient to establish the existence of an element essential to its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Without a showing sufficient to establish the existence of an ...