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Ammon v. Dillard's Department Store# 768

United States District Court, M.D. Louisiana

June 22, 2015



SHELLY D. DICK, District Judge.

This matter is before the Court on the Motion for Summary Judgment [1] by Defendant, Higbee LANCOMS, LP ("Defendant")(incorrectly identified as Dillard's Department Store #768). Plaintiff Libby Ammon ("Plaintiff") has filed an Opposition [2] to this motion. For the following reasons, the Court finds that Defendant's motion should be granted.


On June 19, 2013, Plaintiff had an appointment at 10:00 a.m. with a Lancome make-up artist at the Dillard's Department Store in the Mall of Louisiana located in Baton Rouge, Louisiana, the same time that the store opened.[3] Plaintiff alleges in her Petition that it had been raining all morning on June 19, 2013, and continued to rain from the time she left home and arrived at Dillard's.[4] Although Plaintiff's Petition states that there were no mats on the ground either after the first set of doors or the second set of doors, [5] Plaintiff testified in her deposition that, in the buffer area between the sets of doors, there were "black rugs, big mats"[6] on which she "probably wiped my shoes because it was monsoon rain."[7] Plaintiff testified that she was wearing open-toed black sandals with a strap around the back of her heel and a wedge bottom.[8] Plaintiff further testified these shoes had a solid flat rubber sole with no ridges or "tread".[9] Upon entering the store, Plaintiff claims she turned right at the first main aisle and walked normally in the store as she headed to the escalators.[10] Plaintiff contends that, about halfway to the escalators, [11] she suddenly felt as though she had stepped on "ice or something."[12] Plaintiff claims she felt herself falling forward, that she had her purse and umbrella in her right hand, and caught herself with her hand in front of her. She claims she "fell on my hand, hit my head, landed on my left side."[13] Plaintiff also contends that there were no warning signs of any unsafe or slippery condition on the floor.[14]

Plaintiff filed this lawsuit claiming that Defendant breached its duty under Louisiana Revised Statute 9:2800.6 to keep its aisles free of any hazardous condition which might reasonably give rise to damage. Specifically, Plaintiff contends that the Defendant either created the risk or had constructive knowledge of the risk yet failed to exercise reasonable care in eliminating the risk; and that Defendant knew or should have known that the store contained an unreasonable risk of harm that ultimately caused Plaintiff's fall.

Defendant has moved for summary judgment arguing that Plaintiff has failed to satisfy her burden under La. R.S. 9:2800.6 to come forward with positive evidence showing that the damage-causing condition existed for some period of time sufficient to place the Defendant on notice of its existence. Defendant claims there are no genuine issues of material fact in dispute, and Plaintiff's case should be dismissed.


A. Summary Judgment Standard

"The court shall grant summary judgment if 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."[15] "When assessing whether a dispute to any material fact exists, we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence."[16] A party moving for summary judgment "must demonstrate the absence of a genuine issue of material fact, ' but need not negate the elements of the nonmovant's case."[17] If the moving party satisfies its burden, "the non-moving party must show that summary judgment is inappropriate by setting forth specific facts showing the existence of a genuine issue concerning every essential component of its case.'"[18] However, the non-moving party's burden "is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence."[19]

Notably, "[a] genuine issue of material fact exists, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"[20] All reasonable factual inferences are drawn in favor of the nonmoving party.[21] However, "[t]he Court has no duty to search the record for material fact issues. Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim."[22] "Conclusory allegations unsupported by specific facts... will not prevent the award of summary judgment; the plaintiff [can]not rest on his allegations... to get to a jury without any "significant probative evidence tending to support the complaint."'"[23]

B. The Louisiana Merchant Liability Statute - La. R.S. 9:2800.6[24]

Louisiana Revised Statute 9:2800.6 sets forth the burden of proof in claims against merchants, such as the Defendant, and provides the following in pertinent part:

A. 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.
B. 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 ...

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