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Bernard v. Dolgencorp, LLC

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

August 1, 2017

KENNETH BERNARD
v.
DOLGENCORP, LLC dba DOLLAR GENTERAL AND ABC INSURANCE COMPANY

          HANNA MAGISTRATE JUDGE.

          RULING

          DEE D. DRELL, CHIEF JUDGE-UNITED STATES DISTRICT COURT

         Before 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.

         I. Background and Procedural History

         Dollar 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 jurisdiction. Id.

         This 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.

         Dollar 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.

         Having carefully considered the motion, supporting documents, and briefs, we find the following:

         II. Law and Analysis

         A. Summary Judgment Standard

         A 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). 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.

         B. Applying Louisiana's Merchant Liability Statute

         Louisiana's 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[1] 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, ...


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