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Brown v. Wal-Mart Stores Inc.

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

July 24, 2017

Brown
v.
Wal-Mart Stores Inc

          MEMORANDUM RULING

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Motion For Summary Judgment filed by defendant, Wal-Mart Louisiana LLC (“Wal-Mart”), [Rec. Doc. 23], Plaintiff, Derek Wilson Brown's, Memorandum In Opposition [Rec. Doc. 28] and Wal-Mart's Reply thereto [Rec. Doc. 32]. For the reasons that follow, the Court will grant the Motion.

         I. Background

         On April 16, 2015 at approximately 3:14 p.m., Plaintiff was allegedly injured after slipping and falling on a textured metal drain cover outside the Wal-Mart Store located in Lafayette, Louisiana. The weather on that date was rainy such that the sidewalk and the textured metal drain cover were saturated with rain water, and Plaintiff was using an umbrella.[1] R. 23-4, Brown Depo., p. 67, l. 5; p. 94, l. 3-5; R. 23-5, Video Surveillance; R. 23-6 Screenshot.

         After parking his car in the Wal-Mart parking lot, Plaintiff walked down the sidewalk toward the right front entrance of the store. R. 23-4, p. 67, l. 13. Overlaying the sidewalk, perpendicular thereto, was a metal drain cover, covering a gutter which ran from the roof of the store, through the sidewalk, to the parking lot. Id. at p. 68, l. 15-20. Plaintiff stated that as he was walking on the sidewalk he was mostly looking forward towards the doorway of the store, Id. at p. 79, l. 22-23, but saw the drain cover out of the corner of his eye. Id. at p. 79, l. 12-13. When he saw the cover, he did not think it was a problem and he saw no obstructions. Id., at p. 70, l. 11-16. Upon stepping on the drain cover, Plaintiff stated his foot slipped, thereby causing him to fall onto the sidewalk. Id. at p. 69, l. 7, 9-11.

         Thereafter, on the same date, Plaintiff took a cell phone video of the drain cover and the location of the accident and took photographs the following day. R. 23-7 (in globo), 04/16/2015 Cell Phone Video and 04/17/2015 Photographs. Plaintiff stated that upon inspecting the drain cover he noted there was “a very subtle height difference” between the edge of the drain cover and the top of the sidewalk. Id. at p. 80, l. 10-19. He guessed that the difference was about a quarter inch up to less than a half an inch. Id. at pp. 80, l. 20-p. 81, l. 19. Plaintiff also stated that upon stepping on the drain cover, he felt like the drain was “sloped.” When he observed the drain cover after the accident, he stated that it looked “kind of warped, ” Id. at pp. 76, 1. 19-77, l. 7, “like the sidewalk on one end ... sank a little, and caused the metal to go down with it, ” Id. at p. 94, l. 10-18. Finally, Plaintiff stated that, based on his observation, the grating “seemed to be worn down.” Id. at p. 70, l. 22-23.

         Plaintiff filed this action in the Fifteenth Judicial District Court, Lafayette Parish, Louisiana on November 2, 2015. On March 7, 2016, Wal-Mart removed the case to this Court. R. 1. Wal-Mart filed the instant motion for summary judgment moving to dismiss Plaintiff's claims against it. Wal-Mart contends that Plaintiff cannot prove the drain cover presented an unreasonable risk of harm to Wal-Mart customers or that such was reasonably foreseeable as required under Louisiana's slip-and-fall statute, La. R.S. 9:2800.6.

         II. Summary Judgment Standard

         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine issue of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio., 475 U.S. 574, 586 (1986). A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, “[i]f the evidence is merely colorable, or is not significantly probative, ” summary judgment is appropriate. Id. at 249-50 (citations omitted). Summary judgment is also proper if the party opposing the motion fails to establish an essential element of her case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir.1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.1987). Finally, in evaluating the summary judgment motion, the Court must read the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255.

         III. Analysis

         “In Louisiana, ‘every act ... of man that causes damage to another obliges him by whose fault it happened to repair it.' La. Civ. Code art. 2315(A). Under Louisiana's ‘standard negligence analysis'-the ‘duty-risk analysis'-a plaintiff must prove five elements: first, that the defendant had a duty to conform his conduct to a specific standard (duty); second, that the defendant's conduct failed to conform to the appropriate standard (breach); third, that the defendant's substandard conduct was a cause in fact of the plaintiff's injuries (cause in fact); fourth, that the defendant's substandard conduct was a legal cause of the plaintiff's injuries (legal cause); and fifth, that the plaintiff suffered actual damages (damages).

         For ‘merchants' like Wal-Mart, however, § 9:2800.6 of the Louisiana Revised Statutes alters this analysis slightly. Merchants ‘owe [ ] a duty ... to exercise reasonable care to keep [their] aisles, passageways, and floors in a reasonably safe condition, ' which ‘includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.' La. Stat. § 9:2800.6(A). When someone sues a merchant for damages ‘as a result of an injury ... or loss sustained because of a fall due to a condition existing in or on [the] premise, ' the plaintiff must prove ‘in addition to all other elements of [the] cause of action':

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was ...

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