United States District Court, W.D. Louisiana, Lake Charles Division
T. TRIMBLE, JR. UNITED STATES DISTRICT JUDGE.
the court are three (3) motions: (1) motion for summary
judgment (R. #21) filed by Defendant, Brookshire Brothers
Inc., (2) motion for summary judgment (R. #25) filed by
Defendant, Coca Cola Bottling Co. United Inc.
("Coca-Cola") and (3) a motion for oral argument
(R. #28) filed by Plaintiffs, Cynthia Conner and Tim Conner.
Both Defendants seek to be dismissed pursuant to Rule 56 of
the Federal Rules of Civil Procedure. Plaintiffs request oral
arguments as to both motions.
March 12, 2016, Plaintiffs, Cynthia Conner and her husband,
Tim Conner were shopping at the Brookshire Brothers Grocery
Store in Sulphur, Louisiana. While purchasing her groceries,
Mrs. Conner realized she left her keys in her vehicle. Mrs.
Conner walked towards the store's exit and as she passed
in front of several glass-door beverage coolers,
slipped and fell in a clear liquid substance.
judgment is appropriate "if the pleadings, depositions,
answers to interrogatories and admissions on file, together
with the affidavits, if any, when viewed in the light most
favorable to the non-moving party, indicate that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of
A fact is "material" if its existence or
nonexistence "might affect the outcome of the suit under
governing law." A dispute about a material fact is
"genuine" if the evidence is such that a reasonable
jury could return a verdict for the non-moving
party. As to issues which the non-moving party
has the burden of proof at trial, the moving party may
satisfy this burden by demonstrating the absence of evidence
supporting the non-moving party's
claim." Once the movant makes this showing, the
burden shifts to the non-moving party to set forth specific
facts showing that there is a genuine issue for
trial. The burden requires more than mere
allegations or denials of the adverse party's pleadings.
The non-moving party must demonstrate by way of affidavit or
other admissible evidence that there are genuine issues of
material fact or law. There is no genuine issue of material fact
if, viewing the evidence in the light more favorable to the
non-moving party, no reasonable trier of fact could find for
the non-moving party. If the evidence is merely colorable,
or is not significantly probative, summary judgment may be
granted. The court will construe all evidence in
the light most favorable to the nonmoving party, but will not
infer the existence of evidence not presented.
Defendants, Brookshire Brothers, Inc. and Coca Cola Bottling
Co. United Inc. have filed motions for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The court will consider each motion separately due to the
distinct claims assert against each Defendant.
Brookshire Brothers, maintains that Plaintiffs cannot
establish that (1) the condition that may have caused Mrs.
Conner to slip and fall was created by Brookshire Brothers,
nor (2) Brookshire Brothers had actual or constructive notice
of the condition. Brookshire Brothers submits that Mrs.
Conner did not see the liquid that accumulated on the floor
and could provide few details. Brookshire Brothers allege
that Plaintiffs surmise that the clear liquid came from a
nearby glass-door cooler. Brookshire Brothers further asserts
that there is no evidence to suggest that it had knowledge,
or should have been aware, of the liquid on the floor prior
to Mrs. Conner's fall.
White v. Wal-Mart Stores, Inc., a two-prong analysis
requires Plaintiff to (1) "come forward with positive
evidence showing that the damage causing condition existed
for some period of time, " and (2) show "that such
time was sufficient to place the merchant defendant on notice
of its existence."
Revised Statute 9:2800.6 governs slip-and-fall accidents in
merchant retail stores and is as follows:
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 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
addition to all other elements of his cause of action, all of
(1) The condition presented an unreasonable risk of harm to
the claimant and that risk of harm was reasonably
(2) The merchant either created or had actual or constructive
notice of the condition which caused the damage, prior to the
(3) The merchant failed to exercise reasonable care. In
determining reasonable care, the absence of a written or
verbal uniform cleanup or safety procedure is insufficient,
alone, to prove failure to exercise reasonable care.
(1) "Constructive notice" means the claimant has
proven that the condition existed for such a period of time
that it would have been discovered if the merchant had
exercised reasonable care. The presence of an employee of the
merchant in the vicinity in which the condition exists 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.
(2) "Merchant" means one whose business is to sell
goods, food, wares, or merchandise at a fixed place of
business. For purposes of this Section, a merchant includes
an innkeeper with respect to those areas or aspects of the
premises which are similar to those of a merchant, including
but not limited to shops, restaurants, and lobby areas of or
within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant
may have under Civil Code arts. 660, 667, 669, ...