United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON UNITED STATES DISTRICT JUDGE.
the Court is the Motion for Summary Judgment (Doc. 11) and
the Motion to Strike (Doc. 20) by Defendant PetSmart, Inc.
Plaintiff Patricia Schilling filed oppositions. (Docs. 17 and
24). For the following reasons, the Motion for Summary
Judgment (Doc. 11) is DENIED and the Motion to Strike (Doc.
20) is DENIED AS MOOT.
a slip and fall case. The facts taken in the light most
favorable to Plaintiff are as follows. On January 2, 2017,
Plaintiff walked into a PetSmart store in Denham Springs,
Louisiana. (Doc. 11-2 at 23:13-21, 25:13-26:11). It had been
raining hard that day and for several days beforehand.
Id. at 24:2-3; Doc. 11-3 at 65:5-7. Plaintiff walked
through the store's exterior automatic sliding doors into
the store's vestibule and wiped her feet on a rubber
floor mat. (Doc. 11-2 at 26:13-19; Doc. 11-3 at 27:7-8). The
store has a set of exterior automatic sliding doors and a
vestibule that is eight to ten feet long that leads to
another set of interior automatic sliding doors that leads
inside of the store. (Doc. 11-3 at 26:5-24). The rubber floor
mat in the vestibule is about six feet long. Id. at
wiping her feet on the floor mat, Plaintiff walked to her
left onto a concrete floor to get a shopping cart, when all
of a sudden Plaintiffs "feet went flying from under
her." (Doc. 11-2 at 26:13-19). Plaintiff did not see any
water after walking inside and wiping her feet on the mat.
Id. at 28:16-21. After she fell, though, Plaintiff
saw several puddles of water between the floor mat and the
sliding doors. Id. at 29:13-16. The floor also felt
"damp." Id. Plaintiff was then taken by
ambulance to a local emergency room. Id. at 39:9-15.
She was in a lot of pain, and she underwent a total hip
replacement surgery the next day. Id. at 49:17-19.
that day, PetSmart's store manager had placed a wet floor
sign inside of the vestibule, but it kept blowing over. (Doc.
11-3 at 36:5-10; 85:23-25). As a result, she placed it inside
the store rather than in the vestibule, several feet beyond
the interior sliding doors of the entrance, so that it did
not fall down and pose a tripping hazard. (Doc. 11-3 at
Exhibit 4; 36:5-10; 85:23-25; 84:2-6). Plaintiff, however,
did not see the wet floor sign when she walked in the first
set of exterior doors and fell. (Doc. 11-2 at 33:5-18).
Throughout the day, the store manager had also looked to see
if the vestibule area was wet, and she did not see any
standing water on the concrete floor where the shopping carts
were located. (Doc. 11-3 at 32:3-24; 35:18-21). It is also
PetSmart's store policy to have employees periodically
monitor the vestibule for water, but there is no set time
period or schedule for doing so. Id. at 84:19:25.
claims that PetSmart is liable for damages because it acted
negligently. (Doc. 1-1 at p. 3). Plaintiff sued PetSmart and
ABC Insurance Company on June 6, 2017 in the 21st Judicial
District Court, Parish of Livingston, Louisiana. (Doc. 1-1 at
p. 2). Invoking the Court's diversity jurisdiction,
Defendant removed the case to this Court a month later. (Doc.
the Federal Rules of Civil Procedure, "[t]he court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). In determining whether the movant is entitled to
summary judgment, the court views the facts in the light most
favorable to the non-movant and draws all reasonable
inferences in the non-movant's favor. Coleman v.
Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.
1997). At this stage, the Court does not evaluate the
credibility of witnesses, weigh the evidence, or resolve
factual disputes. Int'l Shortstop, Inc. v.
Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
Louisiana law, a plaintiff seeking damages against a merchant
in a slip and fall case has the burden of proving that a
condition on the premises presented: (1) an unreasonable risk
of harm and that this harm was reasonably foreseeable; (2)
that the merchant either created or had actual or
constructive notice of the condition and; (3) that the
merchant failed to exercise reasonable care. La. R.S.
9:2800.6(B). "The burden of proof does not shift to the
defendant at any point and failure to prove any one of these
elements negates a plaintiffs cause of action."
Melancon v. Popeye's Famous Fried Chicken, 59
So.3d 513, 515 (La.App. Ct. 2011) (citing White v.
Wal-Mart Stores, Inc., 699 So.2d 1081 (La. 1997)).
Unreasonable Risk of Harm That Was Reasonably
first issue is whether the floor presented an unreasonable
risk of harm and that harm was reasonably foreseeable.
Defendant contends that there was no condition that presented
an unreasonable risk of harm because there was no water on
the vestibule floor. (Doc 11-1 at p. 8). If there is a puddle
of water on a floor or a floor mat is saturated with water in
a high traffic area, the floor poses an unreasonable risk of
harm that is reasonably foreseeable. See Barton v.
Wal-Mart Stores, Inc., 704 So.2d 361, 367 (La. Ct. App.
1997); Oalmann v. K-Mart Corp., 630 So.2d 911, 913
(La. Ct. App. 1993). In Barton, for example, the
court concluded that a floor presented an unreasonable risk
of harm that was reasonably foreseeable because it was
raining, the store failed to change its floor mats in a high
traffic area once they became wet, and the plaintiff
testified that the floor he fell on was wet. Id; see also
Oalmann, 630 So.2d at 913 (finding that a puddle of
water on a K-Mart floor created an unreasonable risk of harm
that was reasonably foreseeable).
it was raining the day Plaintiff fell, she testified that she
saw puddles of water on the floor after she fell, (Doc 11-2
at pp. 29:13-16), and the Defendant's store manager
admitted that the floor mat had never been changed. True
enough, the manager testified that she did not see any water
on the floor, (Doc 11-3 at p. 35:18-21, 88:9-:24), but the
Court must make all reasonable inferences in Plaintiffs
favor, and therefore it is reasonable to infer that the floor
mat was saturated with water because it was windy and rainy
the day Plaintiff fell. The Court therefore ...