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Forbis v. Ignite Restaurant Group, Inc.

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

April 6, 2017

DEBORAH L. FORBIS
v.
IGNITE RESTAURANT GROUP, INC.

          MAGISTRATE JUDGE HORNSBY

          MEMORANDUM RULING

          S. MAURICE HICKS, JR. UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Ignite Restaurant Group, Inc.'s (“Ignite”) Motion for Summary Judgment (Record Document 14), arguing that there is no genuine dispute of material fact on one element, subsection (B)(2) of La. R.S. § 9:2800.6, of Plaintiff Deborah Forbis' (“Mrs. Forbis”) negligence claim. For the reasons stated in the instant Memorandum Ruling, Ignite's Motion for Summary Judgment is hereby GRANTED as to the grounds asserted in the Motion. As fully explained in Section II, D, infra, the Court is construing the instant Motion as one seeking partial summary judgment, as granting the Motion only forecloses two of three possible methods of meeting subsection (B)(2). However, under the Court's authority to consider summary judgment on its own, the Court also makes the preliminary finding that there is no genuine dispute of fact as to the third method of meeting subsection (B)(2). As such, Mrs. Forbis is hereby ORDERED to respond to this finding in accordance with the terms of the instant Memorandum Ruling if she wishes to oppose the entry of summary judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         This case arises from a fall at Joe's Crab Shack (“Joe's”), a restaurant owned and operated by Ignite at the Louisiana Boardwalk in Bossier City, Louisiana. See Record Document 1-2 (plaintiff's state court petition). On April 12, 2015, Mrs. Forbis and her husband David Forbis (“Mr. Forbis”) visited Joe's. See id. It was raining outside that day. See id. at 1; see Record Document 14-3 at 2 (deposition page 26 lines 20-23). Though it is not exactly clear from the petition and the summary judgment evidence, it appears that Mrs. Forbis slipped and fell somewhere close to the entrance to Joe's. See Record Documents 14-2, 14-3, and 14-5 (summary judgment evidence). Mrs. Forbis felt her feet slip on what she describes as a slippery substance, and her clothes felt wet on the side where she fell after the fall. See Record Document 14-2 at 7 (deposition page 35 lines 8-12). Mr. Forbis was unable to say whether there was water or another liquid on the floor where Mrs. Forbis fell. See Record Document 14-3 at 2 (deposition page 26 lines 10-23). Though other employees may have been present, the summary judgment evidence only contains evidence from one such employee, Faith Beyersdorf (“Beyersdorf”), who stated in her deposition that after the fall, she did not see anything on the floor where Mrs. Forbis fell. See Record Document 14-4 at 2 (deposition page 10 lines 2-7).

         Mrs. Forbis filed the instant negligence action in state court on April 7, 2016. See Record Document 1-2. Ignite removed the instant action to this Court on the basis of diversity of citizenship jurisdiction under 28 U.S.C. § 1332. See Record Document 1. On September 26, 2016, Ignite filed a Motion for Summary Judgment arguing that there are no genuine disputes of material fact on the following elements of Mrs. Forbis' cause of action under Louisiana's merchant liability statute, La. R.S. § 9:2800.6: (1) the existence of a hazardous condition in or on Ignite's premises that caused her fall; and (2) whether Ignite had either actual or constructive knowledge of the condition prior to her fall. See Record Document 14-1 at 7. On January 10, 2017, Mrs. Forbis filed a Memorandum in Opposition, accompanied by an affidavit by an engineer she sought to use as an expert witness, Jason English (“English”). See Record Documents 19, 19-1 and 19-2. On February 23, 2017, the Magistrate Judge struck English's affidavit because Mrs. Forbis failed to timely provide an expert report for him under the Court's scheduling order. See Record Document 31. Thus, the only evidence in the summary judgment record is that which was attached to Ignite's Motion. See Record Documents 14-2, 14-3, and 14-4.

         LAW AND ANALYSIS

          I. Legal Standards

         A. The Summary Judgment Standard.

         Rule 56 of the Federal Rules of Civil Procedure governs summary judgment. This rule provides that 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." Fed.R.Civ.P. 56(a). Also, "a party asserting that a fact cannot be or is genuinely disputed must support the motion by citing to particular parts of materials in the record." Fed R. Civ. P. 56(c)(1)(A). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment." Fed.R.Civ.P. 56(e)(3).

         In a summary judgment motion, "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings . . . [and] affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations and citations omitted). If the movant meets this initial burden, then the non-movant has the burden of going beyond the pleadings and designating specific facts that prove that a genuine issue of material fact exists. See id. at 325; see Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

         A non-movant, however, cannot meet the burden of proving that a genuine dispute of material fact exists by providing only "some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence." Little, 37 F.3d at 1075. Additionally, in deciding a summary judgment motion, courts "resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is when both parties have submitted evidence of contradictory facts." Id. Courts "do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Id.

         In determining whether a particular fact is “material, ” courts must look to the substantive law governing the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. In a case based upon the diversity of citizenship jurisdiction of the federal courts, a federal court must look to the state law governing the case to determine materiality of allegedly disputed facts. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007).

         In determining whether there is a genuine dispute as to a particular material fact, a Court “must view the evidence presented through the prism of the substantive evidentiary burden” that would be applied at trial. Anderson, 477 U.S. at 254. Under Louisiana law, a plaintiff in a delictual (tort) action has the burden of proving each element of his or her cause of action by a preponderance of the evidence. See Maranto v. Goodyear Tire & Rubber Co., 650 So.2d 757, 759 (La. 02/22/95). Thus, the Court must determine “whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict -- whether there is evidence upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 252 (internal quotations omitted).

         B. The Equal Inference Rule

         “Where proven facts give equal support to each of two inconsistent inferences . . . neither of them being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other, before he is entitled to recover.” Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 339 (1933). Courts refer to this rule as the “equal inference rule.” Burgan v. Kroger Tex., L.P., 2016 U.S. Dist. LEXIS 86544 at *16 (N.D. Tex. 2016), citing, inter alia, Pennsylvania R. Co., 288 U.S. 333. Both federal and state courts have stated this same “rule of logic, as well as law, ” in slightly different terms than the Supreme Court in Pennsylvania R. Co., but the essential concept remains the same. Lozano v. Lozano, 52 S.W.3d 141, 157 (Tex. 2001) (Hecht, J., dissenting). One useful modern statement of this rule is as follows:

[I]f circumstantial evidence supports two reasonable inferences, neither of which is any more likely than the other, can a jury pick one? The "equal inference" rule says no. It is not enough that one inference is as reasonable as another; to be given weight, an inference must be more probable than others. "Reasonable" is not the same as "probable". The "equal inference" rule . . . expressly requires that an accepted inference not only be reasonable but that it be probable.

Id. at 158; see also Texas Co. v. Hood, 161 F.2d 618, 620 (5th Cir. 1947) (“where two equally justifiable inferences may be drawn from the facts proven, one for an[d] the other against the Plaintiff, neither is proven, and the verdict must be against him who had the burden of proof”); City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005) ("when the circumstances are equally consistent with either of two facts, neither fact may be inferred”). The equal inference rule only applies at summary judgment when no direct evidence supports finding the fact in question, as direct evidence would, by definition, support a reasonable jury's finding that the fact is proven under the summary judgment standard. See Direct Evidence, Black's Law Dictionary, (10th ed. 2014) (“evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption”); see Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 8.34, (5th ed. 2012) (“circumstantial evidence is proof that does not actually assert or represent the fact to be proven but from which a factfinder can infer an increased probability that the fact exists”); see Little, 37 F.3d at 1075 (factual controversies must be resolved in favor of the nonmoving party).

         Though the Court must not weigh the evidence at summary judgment, such as by taking one witness' word as true over another's, Anderson requires the Court to take the substantive burden of proof that would apply at trial into account at summary judgment. 477 U.S. at 249, 254. When the conclusion that a certain element of a cause of action is met is equally likely as the conclusion that the element is not met, the equal inference rule applies. See Texas Co., 161 F.2d at 620. Logically, if two conclusions are equally likely to be true, one cannot reasonably conclude that one is more likely than the other. Thus, if the equal inference rule applies at summary judgment to a material fact upon which the nomovant bears the burden of proof by a preponderance of the evidence at trial, the Court must grant summary judgment for the movant. See Burgan, 2016 U.S. Dist. LEXIS 86544 at *16 (applying the equal inference rule at summary judgment); Fed.R.Civ.P. 56(a) (summary judgment is mandatory if there is no genuine dispute as to a material fact).

         C. The Louisiana Merchant Liability Act

         The Louisiana Civil Code broadly provides for a civil cause of action for damages against tortfeasors, stating that “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La. C.C. art. 2315. However, in the specific context of negligence actions based on allegedly hazardous conditions existing in or on a merchant's premises, Louisiana's merchant liability statute, La. R.S. § 9:2800.6, provides a more specific set of both duties for merchants and elements that claimants in such cases must prove. The merchant liability statute provides as follows:

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. “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.

La. R.S. § 9:2800.6(A), (B), and (C).

         II. Analysis

         Ignite argues that there are no genuine disputes of material fact on the following elements of Mrs. Forbis' cause of action: (1) the existence of a hazardous condition in or on Ignite's premises that caused her fall; and (2) whether Ignite had either actual or constructive knowledge of the condition prior to her fall. See Record Document 14-1 at 7. Mrs. Forbis argues that there is a genuine dispute of material fact on each of these elements, referencing specific portions of her deposition that she asserts establish a genuine dispute on these elements.[1] See Record Document 19-2.

         A. The Summary Judgment Evidence

         Ignite submitted excerpts from the depositions of Mrs. Forbis, Mr. Forbis, and Beyersdorf as exhibits to their Motion for Summary Judgment. See Record Documents 14-2, 14-3, and 14-5. These deposition excerpts are the only evidence in the summary judgment record. Mrs. Forbis' deposition testimony, in pertinent part, is as follows:

Q: Okay, when you were waking up the ramp--
A: Yes, sir.
Q: --did you see anything on--Well, first off, was there any mat on the concrete floor before you got on the ramp?
A: I did not see one. I did not pay attention. No, sir. I did not see one.
Q: Did you see a mat on the ramp itself?
A: No, sir.
Q: Were there any signs out that indicated that there was water or anything else?

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