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Derousselle v. Wal-Mart Louisiana, LLC

United States District Court, W.D. Louisiana, Lafayette Division

February 6, 2017




         Currently pending is the motion for summary judgment (Rec. Doc. 19), which was filed by the defendant, Wal-Mart Louisiana, LLC. The motion is opposed, and oral argument was held on January 24, 2017. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, this Court grants the motion and dismisses the plaintiff's claims with prejudice.


         Beatrice Derousselle, the plaintiff in this lawsuit, alleged that she was injured in a slip-and-fall in the Opelousas Wal-Mart store. She alleged that she entered the store about 7:30 on the morning of Saturday, September 26, 2015 and proceeded to the cold cuts section of the store's meat department to buy some bacon. As she walked down the aisle, she allegedly fell to the ground, injuring her left hip. When the store's assistant manager Craigory Sam investigated the incident, he found a green grape with skid marks from the plaintiff's shoe. The plaintiff alleged that her stepping on the grape caused her fall and the resulting injuries.

         The plaintiff was deposed. Mr. Sam and three additional Wal-Mart employees were also deposed. None of them witnessed the incident, and none of them knows where the grape came from or how long it was on the floor before the accident.

         Wal-Mart produced surveillance video that shows the aisle where the accident happened, starting at 6:30 that morning. Although several people - Wal-Mart employees and customers - used the aisle in the hour before the accident, the grape cannot be seen on the video, and no one else slipped or fell. In fact, the plaintiff walked down the aisle in a direction away from the camera, then turned around and walked back toward the camera, covering the same part of the aisle for the second time just before she fell.

         The plaintiff claims that Wal-Mart is liable for her fall and the resulting injuries, while Wal-Mart argues that the plaintiff has not proven that it is liable.


         A. The Summary Judgment Standard

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. A fact is material if proof of its existence or nonexistence might affect the outcome of the lawsuit under the applicable governing law.[1] A genuine issue of material fact exists if a reasonable jury could render a verdict for the nonmoving party.[2]

         The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion and identifying those parts of the record that demonstrate the absence of genuine issues of material fact.[3] If the moving party carries its initial burden, the burden shifts to the nonmoving party to demonstrate the existence of a genuine issue of a material fact.[4] All facts and inferences are construed in the light most favorable to the nonmoving party.[5]

         If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that there is insufficient proof concerning an essential element of the nonmoving party's claim.[6] The motion should be granted if the nonmoving party cannot produce evidence to support an essential element of its claim.[7]

         When both parties have submitted evidence of contradictory facts, a court is bound to draw all reasonable inferences in favor of the nonmoving party.[8] The court cannot make credibility determinations or weigh the evidence, and the nonmovant cannot meet his burden with unsubstantiated assertions, conclusory allegations, or a scintilla of evidence.[9] “When all of the summary judgment evidence presented by both parties could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial and summary judgment is proper.”[10]

         Interpretations of statutory provisions that are dispositive and raise only questions of law, there being no contest as to the operative facts, are particularly appropriate for summary judgment.[11]

         B. The Applicable Statute

         In a diversity case such as this one, we apply state substantive law, here Louisiana law.[12] Therefore, Wal-Mart's liability for the plaintiff's accident and injury is governed by the Louisiana Merchant Liability Act, La. R.S. 9:2800.6, which reads as follows in its entirety:

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 addition to all other elements of his 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, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

         The statute requires a plaintiff to prove three things: (1) there was a condition that presented an unreasonable risk of harm, (2) the merchant either created the condition or had actual or constructive notice of the condition, and (3) the merchant failed to exercise reasonable care. If the plaintiff fails to prove any one of those three elements, the merchant is not liable. The Louisiana Supreme Court has found this statute to be clear and unambiguous.[13]

         C. The Plaintiff Failed to Prove that Wal-Mart is Liable

         In this case, it is alleged that a grape, which was found after the accident and presumably caused the plaintiff's fall, was a condition that presented an unreasonable risk of harm. It is undisputed that a grape with skid marks on it was found by Wal-Mart's manager after the plaintiff's fall. Therefore, there is no dispute ...

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