United States District Court, W.D. Louisiana, Lafayette Division
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.
Consent of the Parties
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.
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:
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.
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,
Summary Judgment Standard
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
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.
Applicable Law-Merchant Liability
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 ...