United States District Court, W.D. Louisiana, Lafayette Division
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE
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.
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. R. 23-4, Brown Depo., p. 67, l.
5; p. 94, l. 3-5; R. 23-5, Video Surveillance;
R. 23-6 Screenshot.
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.
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.
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.
Summary Judgment Standard
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
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.
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
‘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
(1) The condition presented an unreasonable risk of harm to
the claimant and that risk of harm was ...