United States District Court, W.D. Louisiana, Lafayette Division
DRELL, CHIEF JUDGE-UNITED STATES DISTRICT COURT
the Court is the motion of defendant, called here
"Dollar General, " for summary judgment. (Doc. 30.)
All responsive pleadings have since been filed (Docs. 40,
43), and the matter is ready for disposition. For the
following reasons, Dollar General's Motion for Summary
Judgment will be DENIED.
Background and Procedural History
General removed this suit pursuant to diversity jurisdiction
under 28 U.S.C. §1332. Doc. 1, p. 1. Kenneth Bernard
filed the original action on August 13, 2015 in the
15th Judicial District Court (Lafayette Parish,
Louisiana), which suit was subsequently removed by Dollar
General, alleging complete diversity between the parties as
Dollar General is incorporated in Tennessee and Mr. Bernard
is domiciled in Louisiana. Doc. 1, p. 3. Dollar General also
urged that Mr. Bernard claims damages in excess of $75, 000,
fulfilling the monetary requirement for diversity
suit arises out of an accident that occurred in a Dollar
General store located in Carencro, Louisiana. Doc. 1-1, p. 2.
On April 25, 2015, Mr. Bernard walked into the Dollar General
and allegedly slipped and fell on something wet on the floor.
Id. At the time of the accident, Mr. Bernard was
delivering bread products for Flowers Bakery of Baton Rouge.
Doc. 30-1, p. 2. Mr. Bernard claims he suffered personal
injuries as a result of Dollar General's negligence or
fault under Louisiana's Merchant Liability statute, La.
R.S. 9:2800.6. Doc. 1-1, p. 2.
General filed this motion for summary judgement claiming Mr.
Bernard cannot carry his burden of establishing that Dollar
General created or had actual or constructive notice of the
water deposit at the time of the accident. Doc. 30-1. Mr.
Bernard has opposed Dollar General's motion for summary
judgment (Doc. 40) and Dollar General timely replied (Doc.
43), completing the record with all necessary briefs.
carefully considered the motion, supporting documents, and
briefs, we find the following:
Law and Analysis
Summary Judgment Standard
"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). If the non-movant bears the burden of
proof at trial, the movant need not disprove every element of
the non-movant's case; rather, the movant can satisfy his
burden by pointing to the absence of evidence to support the
non-movant's case. Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994). Further, we consider
"all evidence in the light most favorable to the party
resisting the motion." Seacor Holdings, Inc. v.
Commonwealth Ins. Co., 635 F.3d 675, 680 (5th Cir. 2011)
(internal quotations omitted). In this analysis, we review
facts and draw all inferences most favorable to the
nonmovant; "[h]owever, mere conclusory allegations are
not competent summary judgment evidence, and such allegations
are insufficient, therefore, to defeat a motion for summary
judgment." Eason v. Thaler, 73 F.3d 1322, 1325
(5th Cir. 1996). It is important to note that the standard
for a summary judgment is two-fold: (1) there is no genuine
dispute as to any material fact, and (2) the movant
is entitled to judgment as a matter of law.
Applying Louisiana's Merchant Liability Statute
merchant liability "slip and fall" statute governs
Plaintiffs claims. The Plaintiffs' burden of proof is set
forth in the Louisiana Merchant Liability Act, LA. R.S.
9:2800.6 which provides in relevant part:
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, ...