United States District Court, E.D. Louisiana
ORDER AND REASONS
ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.
IS HEREBY ORDERED that Family Dollar Stores of
Louisiana, Inc.'s Motion for Summary Judgment (Doc. #45)
is GRANTED, and plaintiffs' claims
against it are DISMISSED.
matter is before the court on a motion for summary judgment
filed by defendant, Family Dollar Stores of Louisiana,
19, 2015, Dalton Baham, III was driving a motorcycle north in
the center lane of Carrollton Avenue, under the I-10 overpass
near Tulane Avenue in New Orleans when he struck a shopping
cart that was in the roadway. Baham was ejected from the
motorcycle, hit a wall, and died on the scene.
October 5, 2016, plaintiffs, Latory Jones (Baham's wife),
individually and as natural tutrix of her minor child S.J.B.
(Baham's daughter), Dalton Baham, IV (Baham's son),
and Brandi Payton, as natural tutrix of her minor child
B.B.P. (Baham's son), filed this action in the Civil
District Court, Parish of Orleans, State of Louisiana against
Family Dollar and Gatekeeper Systems Inc. Plaintiffs allege
that Family Dollar owned the shopping cart involved in the
accident and that it was negligent for failing properly to
maintain its shopping carts. Plaintiffs also allege claims
against Family Dollar under Louisiana Civil Code articles
2317, 2317.1 and 2322.
Gatekeeper sells a shopping cart containment system to equip
carts with a special wheel that responds to a radio frequency
around the perimeter of the property and locks the wheel if
the cart is moved beyond the perimeter. Plaintiffs also
allege that Family Dollar had a master service agreement with
Gatekeeper to use Gatekeeper's cart containment system on
its shopping carts. Plaintiffs allege that the Gatekeeper
safety wheel on the subject shopping cart was unreasonably
dangerous in design, construction and composition, failed to
provide adequate warnings and failed to conform to safety
Dollar filed a motion for summary judgment arguing that
plaintiffs cannot prevail on their claims brought under
Louisiana Civil Code articles 2317, 2317.1 or 2322, or
Louisiana negligence principles. Plaintiffs argue that
summary judgment is premature because discovery has not been
Summary Judgment Standard
of the Federal Rules of Civil Procedure provides that the
"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."
Granting a motion for summary judgment is proper if the
pleadings, depositions, answers to interrogatories,
admissions on file, and affidavits filed in support of the
motion demonstrate that there is no genuine issue as to any
material fact that the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby, Inc., 106 S.Ct. 2505, 2509-10 (1986). The
court must find "[a] factual dispute . . . [to be]
'genuine' if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party . . .
[and a] fact . . . [to be] 'material' if it might
affect the outcome of the suit under the governing
substantive law." Beck v. Somerset Techs.,
Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing
Anderson, 106 S.Ct. at 2510).
moving party meets the initial burden of establishing that
there is no genuine issue, the burden shifts to the
non-moving party to produce evidence of the existence of a
genuine issue for trial. Celeotex Corp. v. Catrett,
106 S.Ct. 2548, 2552 (1986). The non-movant cannot satisfy
the summary judgment burden with conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc). If the opposing party bears the burden
of proof at trial, the moving party does not have to submit
evidentiary documents to properly support its motion, but
need only point out the absence of evidence supporting the
essential elements of the opposing party's case.
Saunders v. Michelin Tire Corp., 942 F.2d 299, 301
(5th Cir. 1991).
Louisiana Civil Code articles 2317 and 2317.1
Dollar argues that plaintiffs cannot prevail on their claims
brought under Louisiana Civil Code articles 2317 and 2317.1
because there is no evidence that the accident was ...