United States District Court, E.D. Louisiana
ORDER AND REASONS
parties have each filed a motion for summary judgment. The
first is “Plaintiff's Motion for Partial Summary
Judgment.” Rec. Doc. 65. Defendants, TJX Companies,
Inc. and Zurich American Insurance Company, timely filed an
opposition. Rec. Doc. 69. The second is the “Motion for
Summary Judgment Filed by the TJX Companies, Inc. and Zurich
American Insurance Company.” Rec. Doc. 70. Plaintiff
timely filed an opposition. Rec. Doc. 73. Defendants then
sought, and were granted, leave to file a reply. Rec. Docs.
reasons discussed below, IT IS ORDERED that
Defendants' motion for summary judgment (Rec. Doc. 70) is
GRANTED and Plaintiff's claims against
Defendants are DISMISSED WITH PREJUDICE.
IS FURTHER ORDERED that Plaintiff's motion for
partial summary judgment (Rec. Doc. 65) is DISMISSED
BACKGROUND AND PROCEDURAL HISTORY
September 7, 2015, Plaintiff Dorothy Lowery visited one of
TJX's TJ Maxx stores to purchase a pair of shoes. Rec.
Doc. 33 ¶ 4. Seating was available in the shoe
department and throughout the store, but Plaintiff claims not
to have been aware of the seating locations. Rec. Doc. 70-2
¶¶ 3, 6, 8, 11, 12; Rec. Doc. 73-1 ¶¶ 3,
6, 8, 11, 12. Instead, when Plaintiff found a pair of shoes
that she was interested in purchasing, she leaned against a
table with one hand while using her other hand to remove one
of her shoes and put on one of the new shoes. Rec. Doc. 70-2
¶¶ 23, 25; Rec. Doc. 73-1 ¶¶ 23, 25. The
table collapsed and Plaintiff fell to the ground. Rec. Doc.
70-2 ¶ 26; Rec. Doc. 73-1 ¶ 26. Plaintiff brought
negligence and products liability claims against Defendants.
Rec. Doc. 33 ¶¶ 7-11, 14. The products liability
claims were dismissed in an earlier Order and Reasons,
leaving only Plaintiff's claim that “TJX
negligently failed to provide adequate seating to
customers.” Rec. Doc. 63 at 8, 13.
judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of
material fact exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
the movant bears the burden of proof, she must
“demonstrate the absence of a genuine issue of material
fact using “competent summary judgment evidence.”
Celotex, 477 U.S. at 323. But “where the
non-movant bears the burden of proof at trial, the movant may
merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir.
1994). When the movant meets her burden, the burden shifts to
the non-movant, who must show by “competent summary
judgment evidence” that there is a genuine issue of
material fact. See Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986);
Lindsey, 16 F.3d at 618.
analyzing a negligence claim under Louisiana state law apply
a duty-risk analysis, which asks a series of questions:
“Was a duty owed? Was the duty breached? Did the breach
of duty cause the plaintiff's harm?” Edminson
v. Caesars Entm't Co., 177 F.Supp.3d 972, 976 (E.D.
La. 2016); see also Bufkin v. Felipe's La., LLC,
2014-0288, p. 4-5 (La. 10/15/14); 171 So.3d 852, 855. As a
result, a plaintiff can only prevail on a negligence claim if
she establishes (1) that the defendant owed her a duty, (2)
that the defendant breached that duty, (3) that the breach
was a cause-in- fact of her injuries, (4) that the breach was
a legal cause of her injuries, and (5) actual damages.
Bufkin, 171 So.3d at 855.
storeowner who opens his business to the public is
responsible for injuries caused by dangerous conditions that
pose “an unreasonable risk of harm to others.”
Broussard v. State ex rel. Office of State Bldgs.,
2012-1238, p. 9 (La. 4/5/13); 113 So.3d 175, 183-84.
Louisiana courts have adopted a “risk-utility balancing
test to determine whether . . . a condition is unreasonably
dangerous[, ]” such that a defendant would owe a duty
to an injured plaintiff. Bufkin, 171 So.3d at 856.
The test weighs four factors: “(1) the utility of the
complained-of condition; (2) the likelihood and magnitude of
harm, including the obviousness and apparentness of the
condition; (3) the cost of preventing harm; and (4) the
nature of the plaintiff's activities in terms of social
utility or whether the activities were dangerous by
second factor is especially consequential because “a
defendant generally does not have a duty to protect against
an open and obvious hazard.” Broussard, 113
So.3d at 184. As a result, a plaintiff's negligence claim
will fail if the allegedly dangerous condition was
“open and obvious.” See, e.g.,
Bufkin, 171 So.3d at 855-58. Given its potential to
dispose of Plaintiff's claims, the second factor merits
discussion before the rest of the risk-utility test.
condition is open and obvious when it is “open and
obvious to all, i.e., everyone who may potentially
encounter it.” Broussard, 113 So.3d at 184.
“If the complained-of condition should be obvious to
all, then it may not be unreasonably dangerous.”
Id. at 188. In this vein, courts have held that the
danger posed by an unpaved parking lot is open and obvious to
drivers who park in the lot. See Allen v. Lockwood,
2014-1724 (La. 2/13/15); 156 So.3d 650, 653. The danger that
an obstructed view poses to pedestrians crossing a street is
open and obvious because pedestrians know the risks inherent
to crossing a street, especially when they cannot see the
cross traffic clearly. Bufkin, 171 So.3d at 856-58.
Similarly, the absence of yellow lines separating the steps
on an escalator is an open and obvious condition because
“[i]t is no secret that the steps on an escalator move
and eventually separate as they begin to go up or down”
and all riders can readily determine whether the steps on any
given escalator are demarcated by yellow stripes.
Edminson, 177 F.Supp.3d at 979.
alleged lack of seating in the TJX shoe department is an open
and obvious condition. Plaintiff alleges that she did not see
the seating that TJX had provided in the shoe department or
in other areas of the store. Rec. Doc. 73-1 ¶¶ 3,
8. Plaintiff's subjective unawareness of the location of
the seating in the store is immaterial because, under
Louisiana negligence law, the relevant question is whether
any risks ...