United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE, UNITED STATES DISTRICT JUDGE.
the Court is defendant's motion for summary
judgment. For the following reasons, the Court
grants the motion.
March 11, 2016, Plaintiff Doris Gordon slipped and fell at a
Dollar General store in Marrero, Louisiana. Plaintiff
initially entered the store without difficulty and purchased
some merchandise. After leaving the store, she decided that
she wanted to get some change to pay a bill and reentered the
store. Because it rained that day, the interior
mat at the store entrance was allegedly soaked with
water. 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
August 18, 2016, plaintiff filed suit for damages against
Defendant DG Louisiana, LLC in Louisiana state
court. 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. On October 6,
2016, defendant removed the matter to this Court on the basis
of complete diversity of citizenship.Defendant now
moves for summary judgment.
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).
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)).
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).
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. 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”).
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. She further testified that she did not
notice whether the floor mat was wet when she initially
entered and exited the store. 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.
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. 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.” 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.
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 ...