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Kaufman v. Wal-Mart Stores, Inc.

United States District Court, E.D. Louisiana

June 20, 2017

MICHELLE KAUFMAN, Plaintiff
v.
WAL-MART STORES, INC., ET AL., Defendants

         SECTION: “E” (3)

          ORDER AND REASONS

          SUSIE MORGAN UNITED STATES DISTRICT JUDGE

         Before the Court is a motion for summary judgment filed by defendants Wal-Mart Stores, Inc., Wal-Mart Louisiana, LLC, and National Union Fire Insurance Company of Pittsburgh, PA, (collectively, “Defendants”).[1] The motion is opposed.[2] For the following reasons, the motion for summary judgment is DENIED.

         BACKGROUND

         This case arises from personal injuries sustained as a result of falling merchandise. The undisputed facts are that on July 18, 2015, Michelle Kaufman (“Plaintiff”) was shopping alone at the Wal-Mart store on Tchoupitoulas Street in New Orleans, Louisiana.[3] The Plaintiff proceeded to the pet aisle to get a small “Busy Bone” chew for her dog.[4] The Plaintiff, who was alone on the pet aisle at the time of the accident, located the small “Busy Bone” (“small bone”) she wished to purchase. The individually packaged bones were in a box on a shelf below the riser of the shelving unit.[5] When the Plaintiff took the package containing the small bone from the box, a larger “Busy Bone” (“large bone”) fell out of the box, striking her in the face and causing her injuries.[6]

         On June 15, 2016, the Plaintiff filed suit against the Defendants for negligence, seeking to recover for past and future medical expenses, physical pain and suffering, mental anguish, and lost wages.[7] The Plaintiff alleges the Defendants negligently failed to properly inspect and maintain the premises, failed to discover and correct an unsafe condition on the premises, failed to exercise reasonable care, and failed to warn the Plaintiff of the dangerous and unsafe condition on the premises.[8]

         On May 15, 2017, the Defendants filed a motion for summary judgment, seeking summary relief on the ground that the Plaintiff has produced no evidence establishing their liability.[9] On June 6, 2017, the Plaintiff filed her opposition to the motion for summary judgment.[10] On June 9, 2017, the Defendants filed a reply memorandum in further support of their motion for summary judgment.[11]

         SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate only “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.”[12] “An issue is material if its resolution could affect the outcome of the action.”[13]When assessing whether a material factual dispute exists, the Court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.”[14] All reasonable inferences are drawn in favor of the nonmoving party.[15]There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law.[16]

         If the dispositive issue is one on which the moving party will bear the burden of persuasion at trial, the moving party “must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.'”[17] If the moving party fails to carry this burden, the motion must be denied. If the moving party successfully carries this burden, the burden of production then shifts to the nonmoving party to direct the Court's attention to something in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist.[18]

         If the dispositive issue is one on which the nonmoving party will bear the burden of persuasion at trial, the moving party may satisfy its burden of production by either (1) submitting affirmative evidence that negates an essential element of the nonmovant's claim, or (2) demonstrating there is no evidence in the record to establish an essential element of the nonmovant's claim.[19] When proceeding under the first option, if the nonmoving party cannot muster sufficient evidence to dispute the movant's contention that there are no disputed facts, a trial would be useless, and the moving party is entitled to summary judgment as a matter of law.[20] When, however, the movant is proceeding under the second option and is seeking summary judgment on the ground that the nonmovant has no evidence to establish an essential element of the claim, the nonmoving party may defeat a motion for summary judgment by “calling the Court's attention to supporting evidence already in the record that was overlooked or ignored by the moving party.”[21] Under either scenario, the burden then shifts back to the movant to demonstrate the inadequacy of the evidence relied upon by the nonmovant.[22] If the movant meets this burden, “the burden of production shifts [back again] to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party's papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f).”[23] “Summary judgment should be granted if the nonmoving party fails to respond in one or more of these ways, or if, after the nonmoving party responds, the court determines that the moving party has met its ultimate burden of persuading the court that there is no genuine issue of material fact for trial.”[24]

         LAW AND ANALYSIS

         A merchant's duty to keep customers safe from harm caused by falling merchandise is governed by Louisiana Revised Statutes section 9:2800.6(A).[25] Section 9:2800.6(A) provides:

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.[26]

         Encompassed within the duty imposed on merchants is the “responsibility to place the [merchandise] safely on the shelf in such a manner that the [merchandise] would not fall, as well as to replace safely on the shelf [merchandise] that had been moved or removed.”[27] A merchant, through its employees, has the responsibility to “check the shelves periodically to ensure that the [merchandise is] in [a] safe position[] and does not present an unsafe condition.”[28] Essentially, this duty requires the merchant's employees to exercise “the degree of care which would lead to discovery of most hazards.”[29]

         At trial, a plaintiff who is injured by falling merchandise must present, by direct or circumstantial evidence, a prima facie case that a premises hazard existed, [30] by demonstrating that:

(1) he or she did not cause the merchandise to fall;
(2) another customer in the aisle at that moment did not cause the merchandise to fall; and
(3) the merchant's negligence was the cause of the accident.[31]

         At trial, “[o]nce a plaintiff proves a prima facie premise[s] hazard, the defendant has the burden to exculpate itself from fault by showing that it used reasonable care to avoid such hazards by means such as periodic clean up and inspection procedures.”[32]

         For the Plaintiff to survive summary judgment, she must establish all the elements of her prima facie case by presenting evidence that, if unrefuted, would entitle her to judgment in her favor. If she accomplishes this, the burden shifts to the Defendants to present evidence that they used reasonable care.

         The Plaintiff has met the first element of her prima facie case-that she did not cause the large bone to fall. The Plaintiff testified in her deposition that she did not see the large bone and never touched the large bone before it fell and struck her.[33] If unrefuted, this testimony would be sufficient to establish that the Plaintiff did not cause the bone to fall. “If the court rules that any time a customer reaches for a product and another product falls, the customer caused the accident, it would seem to remove any inquiry as to causation.”[34] The second element of the prima facie case-that another customer in the aisle at ...


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