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Peterson v. Brookshire Grocery Co.

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

November 6, 2017




         Before the Court are Defendants Brookshire Grocery Company ("Brookshire") and Travelers Indemnity Company of Connecticut's ("Travelers") Motion for Summary Judgment (Record Document 11) under Rule 56 of the Federal Rules of Civil Procedure seeking dismissal of all of Plaintiff, Quandrala Peterson's ("Peterson") claims. For the reasons stated in the instant Memorandum Ruling, Defendants' Motion for Summary Judgment is hereby GRANTED.


         This case arises from a slip and fall at Super One Foods, which is owned and operated by Brookshire. See Record Document 1-1 (Peterson's state court petition). On November 2, 2016, Peterson filed suit in state court against Brookshire pursuant to the Louisiana Merchant Liability Act, La. Rev. Stat. 9:2800.6 ("LMLA"). See id. Brookshire then removed the action to this Court based on 28 U.S.C. § 1332, diversity jurisdiction. See Record Document 1. On March 9, 2017, both Peterson and Super One Foods' store manager, George Neill ("Neill"), gave depositions. The deposition testimony was attached to Defendants' Motion for Summary Judgment and Peterson's Opposition to Defendants' Motion for Summary Judgment. The Defendants also attached video surveillance, labeled Exhibit C, to their Motion for Summary Judgment.

         The facts that make up this present action are as follows: on November 24, 2015, Peterson and her mother, Tammy Peterson, were shopping at Super One Foods. See id.; see Record Document 11-5 (Peterson's deposition page 26, lines 5-9). The store closes at 10:00 pm and just prior to closing, an announcement was made over the intercom system notifying all remaining customers of the impending closure. See Record Document 11-4 (Neill's deposition page 18, lines 18-23); see Record Document 11-5 at 38, lines 5-10. As Peterson was finishing up her shopping at the rear of the store, in the dairy/beer section, Peterson realized she had forgotten the whipping cream needed for her macaroni and cheese recipe. See Record Document 11 -5 at 39, lines 10-23. Peterson stopped her buggy and "trotted down" the aisle to grab the whipping cream and "trotted back" to her buggy. See id. at 45, lines 2-12. Upon reaching the buggy, Peterson slipped and fell on what has been described as a clear liquid. See id. at 40, lines 19-24. As a result of the fall, Peterson sustained an injury to her right knee. See id. at 25, lines 3-6.

         Subsequent to the slip and fall, Neill arrived at the scene and took a photograph of the clear liquid and drafted a "Customer Accident Report" detailing the facts as they occurred to Peterson. See Record Document 11-4 at 47-49 (photograph and customer accident report). In his deposition, Neill testifies and the video surveillance affirms that Neill was at the scene of the incident approximately twenty-two minutes prior to Peterson's slip and fall. See id. at 29 and 30, lines 18-25 and 1; see Exhibit C. Neill testified that he did not recall seeing any water at that point in time. See id. at 32, lines 18-20. In her deposition, Peterson testified that she walked through the area where she fell on two prior occasions without incident and without notice of any substance on the floor and did not see the substance prior to her fall. See Record Document 11-5 at 41, lines 1-23. The video surveillance illustrates that the scene of the incident was heavily traversed from the time Neill was at the scene twenty-two minutes prior to the time of Peterson's slip and fall. See Exhibit C. Peterson testified and the photograph illustrates no signs of grocery shopping tracks, footprints, or any other marks or skidding through the liquid. See Record Document 11-5 at 42, lines 10-18; see Record Document 11-4 at 47 (photograph).

         In their Motion for Summary Judgment, the Defendants argue that Peterson must prove that "Brookshire knew or should have known about the clear substance on the floor prior to Peterson falling." Record Document 11 at 2, ¶ 6. Specifically, the Defendants focus their Motion for Summary Judgment on whether Brookshire had "constructive notice" of the condition which caused the damage, prior to the occurrence. See Record Document 11 at 2-3, ¶¶ 6-7. The Defendants further argue that Peterson has failed to prove that the clear liquid existed for such a period of time that it would have been discovered had Brookshire exercised reasonable care. See id. Lastly, the Defendants argue that the presence of an employee of Brookshire, Neill, in the vicinity in which the condition existed does not, alone, constitute "constructive notice, " unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition. See id. The Defendants contend that Peterson has only offered speculation in an attempt to support an inference of "constructive notice." See id. at 3, ¶ 7.

         Peterson opposes the Motion for Summary Judgment asserting that there are numerous genuine issues of material fact. See Record Document 13-1 at 1-2. Specifically, Peterson alleges that:

(1) Brookshire's manager, George Neill, failed to discover the hazardous liquid.
(2) Brookshire's manager trains his employees to keep watch for dangerous hazards like this liquid on the floor.
(3) Video surveillance from the store indicates that Brookshire's manager walked over the hazard approximately twenty-two (22) minutes before the plaintiff's fall.
(4) Brookshire's manager testified that the liquid could be seen and was visible.
(5) Brookshire's manager walked within a few feet of the liquid and admits he should have been able to see the liquid.
(6) Video surveillance from the store does not show anyone spilling a liquid on the floor in the twenty-two (22) minutes after Brookshire's manager walked ...

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