United States District Court, E.D. Louisiana
ORDER AND REASONS
ANN VIAL LEMMON, UNITE AR STATES DISTRICT JUDGE.
IS HEREBY ORDERED that Defendant's Motion for
Summary Judgment (Doc. #31) is DENIED.
matter is before the court on defendant's motion for
summary judgment. Defendant, Costco Wholesale Corporation,
argues that it is entitled to summary judgment because
plaintiff, Lisa Dupont, cannot prove all of the elements
necessary to recover for her alleged slip and fall,
specifically, she cannot prove that Costco had actual or
constructive knowledge of the water on the floor.
filed this action against Costco in the Civil District Court,
Parish of Orleans, State of Louisiana, alleging that she was
injured when she slipped and fell inside Costco's store
in New Orleans, Louisiana. Costco removed the action to the
United States District Court for the Eastern District of
Louisiana alleging that this court has diversity subject
matter jurisdiction over the action pursuant to 28 U.S.C.
§ 1332, because there is more than $75, 000 in
controversy and the named parties are completely diverse.
After conducting discovery, Costco filed a motion for summary
judgment arguing that it is entitled to judgment in its favor
because Dupont cannot prove that Costco had actual or
constructive knowledge of the condition that allegedly caused
Summary Judgement 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 properly to 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).
Costco's Motion for Summary Judgment
Revised Statutes § 9:2800.6, which establishes the
burden of proof in slip and fall cases brought against
A. A merchant owes a duty to persons who use his premises to
exercise reasonable care to keep his aisles, passageways, and
floors in a reasonably safe condition. This duty includes a
reasonable effort to keep the premises free of any hazardous
conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a
person lawfully on the merchant's premises for damages as
a result of an injury, death, or loss sustained because of a
fall due to a condition existing in or on a merchant's
premises, the claimant shall have the burden of proving, in