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Gordon v. Dolgencorp, LLC

United States District Court, E.D. Louisiana

August 29, 2017


         SECTION “R” (5)



         Before the Court is defendant's motion for summary judgment.[1] For the following reasons, the Court grants the motion.

         I. BACKGROUND

         On March 11, 2016, Plaintiff Doris Gordon slipped and fell at a Dollar General store in Marrero, Louisiana.[2] Plaintiff initially entered the store without difficulty and purchased some merchandise.[3] After leaving the store, she decided that she wanted to get some change to pay a bill and reentered the store.[4] Because it rained that day, the interior mat at the store entrance was allegedly soaked with water.[5] Plaintiff asserts that her shoe became wet after she stepped on the water-saturated mat while reentering the store, causing her to slip on the store's floor and sustain injuries.[6]

         On August 18, 2016, plaintiff filed suit for damages against Defendant DG Louisiana, LLC[7] in Louisiana state court.[8] Plaintiff alleged that the slippery floor at the Dollar General store constituted an unreasonably dangerous condition and that defendant acted negligently in failing to remedy or warn of the danger.[9] On October 6, 2016, defendant removed the matter to this Court on the basis of complete diversity of citizenship.[10]Defendant now moves for summary judgment.[11]


         Summary judgment is warranted when “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 1075. “No genuine dispute 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.” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

         If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)).


         A. Constructive Notice

         In Louisiana, a plaintiff seeking damages against a merchant because of a fall on their premises has the burden of proving that a condition on the premises presented an unreasonable risk of harm, that this harm was reasonably foreseeable, that the merchant either created or had actual or constructive notice of the condition, and that the merchant failed to exercise reasonable care. La. R.S. 9:2800.6(B). To establish constructive notice, the plaintiff must prove “that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.” La. R.S. 9:2800.6(C).

         Defendant contends that summary judgment is warranted in this matter because plaintiff has not produced evidence that it had actual or constructive notice of the allegedly hazardous water-saturated floor mat.[12] The Louisiana Supreme Court has made clear that, to recover against a merchant, a “claimant must make a positive showing of the existence of the condition” for “some time period prior to the fall.” White v. Wal-Mart Stores, 699 So.2d 1081, 1084-85 (La. 1997); see also Duncan v. Wal-Mart, 863 F.3d 406, 410 (5th Cir. 2017) (affirming summary judgment against plaintiff where plaintiff presented no evidence of “how water came to be under the floor mat nor how long it had been there before her fall”).

         Here, plaintiff admitted in her deposition testimony that she had no information regarding how long the floor mat had been wet, nor whether any Dollar General employees knew that the floor mat was wet.[13] She further testified that she did not notice whether the floor mat was wet when she initially entered and exited the store.[14] Plaintiff instead posits that the floor mat could not have become saturated with water immediately and water must therefore have collected in the mat over an extended period of time.[15]

         But plaintiff must show that the hazardous condition existed for a period of time, not that the hazard developed over time. Defendant's store manager testified that the floor mat is provided for customers to wipe their feet on rainy days.[16] Plaintiff contends that, at some point, “the floor mat at the entrance to the store was so soaked with water that it was no longer serving to dry off patrons' feet, but instead it was acting to create a hazard by wetting patrons' shoes.”[17] Plaintiff cannot, however, identify when the mat allegedly transformed from a helpful precaution to a hazardous condition. That the mat absorbed some water before plaintiff's fall does not establish that the mat was unreasonably dangerous for a period of time before the fall.

         Moreover, rainy weather conditions alone are insufficient to establish constructive notice. Under similar factual circumstances, the Louisiana Supreme Court held that a plaintiff failed to prove constructive notice where he “produced evidence showing that the general area where he fell was within view of a customer service podium and that it was raining on the evening in question” but “presented absolutely no evidence as to the length of time the puddle was on the floor before his accident.” Kennedy v. Wal-Mart Stores, 733 So.2d 1188, 1191 (La. 1999); see also Pollet v. Sears Roebuck & Co., 45 Fed.Appx. 226, 2002 WL 1939917, at *6 (5th Cir. 2002) (explaining that rainy weather does not change plaintiff's burden to show temporal element of constructive notice); Gray v. Shoney's Inc., 192 F.3d ...

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