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Cullivan v. Wal-Mart Stores Inc.

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

March 16, 2018

Cullivan
v.
Wal-Mart Stores Inc

          MEMORANDUM RULING

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.

         By Consent of the Parties

         Before the Court is a Motion For Summary Judgment filed by defendants, Wal-Mart Stores, Inc. (“Wal-Mart”) [Rec. Doc. 21], Plaintiff Evangeline Cullivan's opposition to the motion [Rec. Doc. 27] and Wal-Mart's Reply thereto [Rec. Doc. 33]. For the reasons that follow, the motion for summary judgment will be denied.

         I. Background

         Plaintiff, Evangeline Cullivan, alleges she was struck by rugs that fell from a shelf at Wal-Mart Store No. 312 in Ville Platte, Louisiana on May 30, 2016. In her August 3, 2017 deposition, Plaintiff testified she was on an aisle displaying area rugs with her two daughters, Jaron Washington and Jillian Toussaint, and a family friend, Ebony Ceasar. R. 21-3, Cullivan Depo, p. 36:22-25, p. 37:1-4. After touching one of the area rugs as she was looking through them, several rugs fell on her head and left shoulder. Id., p. 39:11-20; R. 21-4, Toussaint Depo, p.8:3-15; R. 21-4, Ceasar Depo, p.7:17-20. There were no other customers on the aisle at the time of the accident. R. 21-3, p. 41:22-25, p. 42:1; R. 21-4, p. 7:19-24; R. 21-5, p. 7:15-19; R. 21-6, p. 8: 5-10. Further, there were no Wal-Mart employees present on the aisle at the time of the accident. R. 21-3, p. 48:11-14; R. 21-4, p. 7:25, p. 8:1; R. 21-5, p. 7:20-23; R. 21-6, p. 8: 11-12.

         Plaintiff and the three witnesses to the accident all agreed the rugs did not appear to be stacked in an unsafe manner. R. 21-3, p. 48:1-5; R. 21-4, p. 9:18-21; R. 21-5, p. 8:16-24; R. 21-6, p. 8:13-25. When describing how the rugs were stacked, Plaintiff testified they did not look unsafe and were in a vertical, upright position. R. 21-3, p.45: 23-25. Because the bin was not full, the rugs were leaning. Id. at p. 45: 2-4, p.46: 1-10. When the first rugs fell, the others started sliding down. Id. at p. 44:19-22, p. 45:3-4, 11-14, p. 46: 4-5. Plaintiff stated that the only evidence that Wal-Mart stocked the rugs in an unsafe manner was that “there was no safety bar across the front” of the rug rack. Id. at p. 48: 6-10.

         On May 1, 2017, Plaintiff filed this action in the Thirteen Judicial District Court, St. Landry Parish, Louisiana seeking to recover for physical pain and suffering, mental anguish, loss of earnings and earning capacity, and medical expenses. R. 1-2. On June 29, 2017, Wal-Mart removed the lawsuit to this Court based upon diversity of citizenship. R. 1.Plaintiff alleged in her Petition that Wal-Mart's negligence caused the incident, arguing the rugs were displayed in an unsafe and unsecure manner because there was no “protective bar, holding container, or other protective device” to keep them from falling, thereby presenting an unreasonable risk of harm. R. 1-2, ¶ 4.

         II. Legal Standards

         A. Summary Judgment Standard

         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine issue of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio., 475 U.S. 574, 586 (1986). A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, “[i]f the evidence is merely colorable, or is not significantly probative, ” summary judgment is appropriate. Id. at 249-50. Summary judgment is also proper if the party opposing the motion fails to establish an essential element of her case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir.1992). Rather, she must come forward with competent evidence, such as affidavits or depositions, to buttress her claims. Id. Finally, in evaluating the summary judgment motion, the Court must read the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255.

         B. Applicable Law-Merchant Liability

         The parties agree that this case is exclusively governed by the Louisiana Merchant Law, La. R.S. 9:2800.6, which sets forth in pertinent part the burden of proof in claims against merchants 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 duty includes a reasonable effort to keep the premises free of any ...

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