United States District Court, W.D. Louisiana, Lafayette Division
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE.
the Court is a Motion For Summary Judgment filed by
defendants, Wal-Mart Stores, Inc. (“Wal-Mart”)
[Rec. Doc. 11], Plaintiff Eloise Caldwell's Opposition
[Rec. Doc. 19] and Wal-Mart's Reply brief [Rec. Doc.
220]. For the reasons that follow, the motion for summary
judgment is GRANTED.
Eloise Caldwell, was walking in the Wal-Mart parking lot in
Abbeville, Louisiana on February 5, 2016. As she headed
toward the entrance to the store, Plaintiff was walking
between several cars when she tripped and fell in a pothole
located in a parking space on Row 9. Plaintiff alleges she
injured her knee and leg. Plaintiff filed this lawsuit
against Wal-Mart in the Fifteenth Judicial Court, Vermilion
Parish, Louisiana alleging Wal-Mart was negligent under the
provisions of Louisiana Civil Code Articles 2315, 2317 and
2322. Id. The case was removed to this Court on July
13, 2017. R. 1.
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 (citations omitted).
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, he must
come forward with competent evidence, such as affidavits or
depositions, to buttress his claims. Id. Hearsay
evidence and unsworn documents do not qualify as competent
opposing evidence. Martin v. John W. Stone Oil Distrib.,
Inc., 819 F.2d 547, 549 (5th Cir.1987). 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.
Louisiana, ‘every act ... of man that causes damage to
another obliges him by whose fault it happened to repair
it.' La. Civ. Code art. 2315(A). Under Louisiana's
‘standard negligence analysis'-the ‘duty-risk
analysis'-a plaintiff must prove five elements: first,
that the defendant had a duty to conform his conduct to a
specific standard (duty); second, that the defendant's
conduct failed to conform to the appropriate standard
(breach); third, that the defendant's substandard conduct
was a cause in fact of the plaintiff's injuries (cause in
fact); fourth, that the defendant's substandard conduct
was a legal cause of the plaintiff's injuries (legal
cause); and fifth, that the plaintiff suffered actual damages
‘merchants' like Wal-Mart, however, § 9:2800.6
of the Louisiana Revised Statutes alters this analysis
slightly. Merchants ‘owe [ ] a duty ... to exercise
reasonable care to keep [their] aisles, passageways, and
floors in a reasonably safe condition, ' which
‘includes a reasonable effort to keep the premises free
of any hazardous conditions which reasonably might give rise
to damage.' La. Stat. § 9:2800.6(A). When someone
sues a merchant for damages ‘as a result of an injury
... or loss sustained because of a fall due to a condition
existing in or on [the] premise, ' the plaintiff must
prove ‘in addition to all other elements of [the] cause
(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,