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Burgess v. Brookshire Brothers

United States District Court, Western District of Louisiana, Lake Charles Division

March 19, 2015





Before the court is a motion for summary judgment[1] (R. #5) wherein defendant, Jason Nelson, seeks to have plaintiffs' claims dismissed with prejudice pursuant to Federal Rule of Civil Procedure 56(c) because there are no genuine issues of material fact for trial, and defendant, Mr. Nelson, is entitled to judgment in his favor. Plaintiffs oppose the motion.


On August 17, 2013, plaintiff, Jimmie Burgess, was shopping at Brookshire Brothers Grocery Store ("Brookshire Brothers") in DeQuincy, Louisiana which is operated by Brookshire Brothers, Inc, when she slipped and fell on a liquid substance, possibly a mixture of poultry blood and water. At the time of the incident, defendant, Jason Nelson, was the store manager for Brookshire Brothers.[2]As the store manager, Mr. Nelson's duties included ensuring that the store was being maintained in a safe, hazard-free environment.[3]

Prior to the accident, Mr. Nelson was aware that bagged chicken leg quarters were placed in a clear grocery bag.[4]

At the time of the incident, Mr. Nelson was off of work; he was not on duty, nor was he at the store.[5] When Mr. Nelson is not on duty, other qualified managers are responsible for the operations at the store.[6] The market manager is typically in charge of operations specific to the meat and poultry section of the store.


Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, when viewed in the light most favorable to the non-moving party, indicate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."[7] A fact is "material" if its existence or nonexistence "might affect the outcome of the suit under governing law."[8] A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party.[9] As to issues which the non-moving party has the burden of proof at trial, the moving party may satisfy this burden by demonstrating the absence of evidence supporting the non- moving party's claim."[10] Once the movant makes this showing, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial.[11] The burden requires more than mere allegations or denials of the adverse party's pleadings. The non-moving party must demonstrate by way of affidavit or other admissible evidence that there are genuine issues of material fact or law.[12] There is no genuine issue of material fact if, viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party.[13] If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."[14]


Plaintiffs seek to impose liability on Mr. Nelson solely because he was the store manager when Mrs. Burgess allegedly slipped and fell. However, "personal liability cannot be imposed upon the officer, agent or employee simply because of his general administrative responsibility for performance of some function of the employment."[15] Specifically, in order for plaintiff to impose personal liability against Mr. Nelson, they must establish that Mr. Nelson had:

a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiffs damages. If the defendant's general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its nonperformance or mal-performance and has nevertheless failed to cure the risk of harm.[16]

Plaintiffs rely on Thomas v. Wal-Mart La, LLC, [[1]], wherein the court allowed a manager to be sued arguing that plaintiff alleged an "incontroverted, claim of knowledge and failure to warn or correct", thus there was a reasonable possibility that Louisiana law would allow plaintiff a cause of action.[18] We find that this case is distinguishable; the defendant manager in Thomas "admitted that she had knowledge of the hazard and had failed to remedy it."[19] Such is not the case in this matter; Mr. Nelson was not on duty at the time of the incident, nor did he have knowledge of the alleged hazard.

Plaintiffs next rely on Smith v. Petsmart Inc., [20] wherein the court reversed the district court's denial of a motion to remand and dismissed the store's front-end manager. The court held that a store manager is a "person in charge" and therefore owes premises liability duties to invitees under Mississippi law.[21] First, we note that the Fifth Circuit specifically relied upon the assumption made under Mississippi law that a store manager may be held liable for negligence as a "person in charge" of the premises. Next, we note that in Smith, the front-end manager was the only manager on duty at the time of the incident that was the subject matter of the suit. Thus, based on the front-end manager's admission that she was the only manager on duty, the court concluded that there was a ...

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