United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER, UNITED STATES DISTRICT COURT JUDGE.
the Court is a Motion for Summary Judgment
(Rec. Doc. 30) filed by Defendants,
Winn-Dixie Montgomery, LLC, and Winn-Dixie Stores, Inc.
(collectively, “Winn-Dixie”), an opposition
thereto (Rec. Doc. 32) filed by Diane Ratcliff
(“Plaintiff”), and a reply (Rec. Doc. 35) filed
by Winn-Dixie. Having considered the motion and legal
memoranda, the record, and the applicable law, the Court
finds that the motion should be DENIED.
AND PROCEDURAL BACKGROUND
litigation derives from a slip and fall accident that
occurred at a Winn-Dixie store located in New Orleans,
Louisiana. Plaintiff alleges that on August 4, 2016, while
grocery shopping with her friend, Paul Steiner (“Mr.
Steiner”), she slipped on a puddle of water located on
the floor of Winn-Dixie's freezer aisle. On March 28,
2017, Plaintiff filed suit against Winn-Dixie in Orleans
Civil District Court for damages sustained as a result of the
fall. Plaintiff alleges in her state court petition that
Winn- Dixie failed to maintain its premises in a safe and
hazard free condition, failed to warn its patrons of a
hazardous and dangerous condition, failed to repair a
hazardous and dangerous condition, failed to maintain a safe
place for its customers, and failed to insure the safety of
its visitors. Plaintiff also alleges that she suffered
injuries to her right hip, right buttock, neck, back, and
right knee as a result of Winn-Dixie's negligent acts.
subsequently removed the case to this Court on May 10, 2017,
and, on February 27, 2018, filed the instant Motion for
Summary Judgment (Rec. Doc. 30).
Winn-Dixie argues that it is entitled to summary judgment on
Plaintiff's claims because Plaintiff has failed to
establish its liability under Louisiana's Merchant
Liability Statute. Specifically, Winn-Dixie asserts that
Plaintiff has failed to establish: (1) that it either created
or had actual or constructive notice of the puddle; (2) that
the puddle presented an unreasonable risk of harm; and (3)
that it failed to exercise reasonable care. Plaintiff opposes
the motion. The motion is now before the Court on the briefs
and without oral argument.
judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56); Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact
exists, a court considers “all of the evidence in the
record but refrains from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co.
v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398
(5th Cir. 2008). All reasonable inferences are drawn in favor
of the nonmoving party, but a party cannot defeat summary
judgment with conclusory allegations or unsubstantiated
assertions. Little, 37 F.3d at 1075. A court
ultimately must be satisfied that “a reasonable jury
could not return a verdict for the nonmoving party.”
Delta, 530 F.3d at 399.
dispositive issue is one on which the moving party will bear
the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a
directed verdict if the evidence went uncontroverted at
trial.” Int'l Shortstop, Inc. v. Rally's,
Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The
nonmoving party can then defeat the motion by either
countering with sufficient evidence of its own, or
“showing that the moving party's evidence is so
sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.”
Id. at 1265.
dispositive issue is one on which the nonmoving party will
bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence
in the record is insufficient with respect to an essential
element of the nonmoving party's claim. See
Celotex, 477 U.S. at 325. The burden then shifts to the
nonmoving party, who must, by submitting or referring to
evidence, set out specific facts showing that a genuine issue
exists. See Id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that
establish a genuine issue for trial. See, e.g.,
id. at 325; Little, 37 F.3d at 1075.
R.S. 9:2800.6 governs negligence actions against merchants
for injuries sustained because of a fall due to a condition
existing in or on a merchant's premises. See La.
R.S. 9:2800.6. Specifically, the statute provides:
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