United States District Court, E.D. Louisiana
ORDER & REASONS
the Court are two motions: Defendant Tractor Supply
Company's Motion for Summary Judgment, R.13, and
Plaintiff's Motion seeking a default judgment, an order
striking the pleadings, or an adverse inference due to
spoliation of evidence. R.14. The Court has reviewed the
parties' arguments and applicable law, and now issues
this Order and Reasons.
personal injury action arises out of an alleged slip-and-fall
incident that occurred on November 7, 2015. On May 27, 2016,
Plaintiff filed suit against Defendant in the 32nd Judicial
District Court for the Parish of Terrebonne, State of
Louisiana. R. Doc. 1-1. Plaintiff alleges that while visiting
Defendant's store she tripped and fell over rope and/or
cable wire in the aisles and walkways. R. Doc. 1-1 at 3.
Plaintiff claims that she suffered injuries as a result of
the fall which required “extensive medical treatment,
including knee surgery.” R. Doc. 1-1 at 3. Plaintiff
seeks past, present, and future damages for medical expenses,
pain and suffering, disability, lost income, and other yet
undetermined damages. R. Doc. 1-1 at 4.
17, 2016, Defendant filed a Notice of Removal in this Court,
alleging federal diversity jurisdiction pursuant to 28 U.S.C.
§ 1332. R. Doc. 1 at 2. On that same date, Defendant
filed an Answer denying all of the Plaintiff's
allegations. R. Doc. 2. In its Answer, Defendant raised a
number of affirmative defenses, including contributory
negligence, comparative fault, and failure to mitigate
damages. R. Doc. 2.
Defendant's Motion for Summary Judgment (R. 13)
argues that it is entitled to summary judgment because
Plaintiff cannot establish the essential elements of her case
and there are no issues of material fact. R. 13 at 1.
Defendant asserts that it is a merchant, and therefore
liability in this case is governed by Louisiana premises
liability law. R. 13 at 6. To recover under La. R. S. 9:2800,
the Plaintiff must demonstrate (1) there was “an
unreasonable and reasonably foreseeable rick of harm, ”
(2) that Defendant “created or had actual or
constructive notice of the condition, ” and (3) that
Defendant “failed to exercise reasonable care.”
R. 13 at 6-7. Defendant contends the undisputed evidence
proves that it did not have actual or constructive notice of
the allegedly hazardous condition, and therefore it is not
liable under Louisiana law.
to Defendant, its store manager walked through the aisles
when he closed the store the evening before the accident, and
there were no ropes or cable wires on the floor at that time.
R. 13 at 3. Additionally, the manager testified that prior to
opening the store on November 7, 2015, he again walked
through the store-including the area where Plaintiff
eventually fell- and verified there was nothing on the
ground. R. 13 at 3. After ensuring the aisles and walkways
were clear, he opened the store at 8:00 a.m. R. 13 at 4. The
manager testified that no one purchased any rope or cable
wire between the time he opened the door and when Plaintiff
fell at about 8:15 a.m. R. 13 at 4.
argues that Plaintiff does not allege it had actual notice of
the alleged tripping hazard, and therefore Plaintiff must
prove it had constructive notice of the allegedly hazardous
condition. R. 13 at 8. “To prove constructive notice,
the claimant must show that the substance remained on the
floor for such a period of time that the defendant merchant
would have discovered its existence through the exercise of
reasonable care.” R. 13 at 8 (citing White v.
Wal-Mart Stores, Inc., 699 So.2d 1081 (La. 1997)). To
meet this burden, Plaintiff must demonstrate “the
condition existed for some time before the fall.” R. 13
at 8. Defendant argues that the Louisiana Fifth Circuit Court
of Appeals determined that “when a premises is
inspected prior to opening and a dangerous condition may have
been created approximately 30 minutes thereafter . . .
constructive notice cannot be imputed to the Defendant
merchant.” R. 13 at 11 (citing Scott v.
Dillard's, Inc., 14-755 (La.App. 5 Cir. 3/11/15),
169 So.3d 468, 473)). Thus, Defendant contends that under
Louisiana law, Plaintiff has failed to demonstrate the
Defendant had constructive notice of the allegedly hazardous
condition, and Defendant is entitled to summary judgment. R.
13 at 11.
Plaintiff's Opposition (R. 15)
opposes the motion, and argues that the incident did not
occur until either 8:25 a.m. or 8:45 a.m., which at least
raises a factual question regarding whether Defendant had
constructive notice of the hazardous condition. R. 15 at 1.
According to Plaintiff, Defendant does not dispute the cable
wire was strewn across the aisle at the time of the incident.
R. 15 at 2. Further, Plaintiff argues the timeline of events
outlined in Defendant's motion is unreasonable, and
implies a “phantom shopper” entered the store and
placed the cable wire on the floor of the aisle just before
Plaintiff's accident. R. 15 at 2. Next, Plaintiff
explains that initially there was video surveillance of the
event, however, it was destroyed before Plaintiff had a
chance to review the footage. Thus, Plaintiff contends
without video evidence of the time of the accident, the
timeline of the incident is still an issue of disputed fact,
and Defendant's summary judgment must be denied. R. 15 at
Defendant's Reply (R. 29)
argues that Plaintiff's Opposition only raises two
disputed facts: (1) the time the accident occurred, and (2)
allegations that the Defendant intentionally destroyed
surveillance footage. R. 29 at 1. Defendant avers that
neither of these issues are actually genuine issues of
material fact that preclude summary judgment. R. 29 at 1-2.
First, Defendant alleges that Plaintiff testified in her
deposition that the incident occurred shortly after 8:10 a.m.
R. 29 at 2-3. Defendant admits the store manager testified
the accident may have occurred as late as 8:25 a.m., but
argues even if that were the case, those additional fifteen
minutes are insufficient to demonstrate the Defendant had
constructive notice of the hazard under Louisiana law. R. 29
Defendant contends that the video footage was irrelevant, and
Plaintiff's allegation that Defendant intentionally
destroyed the video does not create an issue of material fact
that precludes summary judgment. R. 29 at 3-4. According to
Defendant, the store manager reviewed the footage and
confirmed it did not show cable on the floor, the area where
the incident occurred, or depict the Plaintiff's fall. R.
29 at 4. Thus, Defendant argues the undisputed facts