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Richard v. Wal-Mart Stores, Inc.

United States District Court, M.D. Louisiana

September 25, 2018

LINDA RICHARD
v.
WAL-MART STORES, INC., ET AL.

          RULING AND ORDER [1]

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE.

         Before the court is a Motion for Summary Judgment[2] filed by defendant, Wal-Mart Inc. f/k/a Wal-Mart Stores, Inc. (“Defendant”). Plaintiff, Linda Richard (“Plaintiff”), has filed an opposition, [3] and Defendant has filed a reply.[4] For the reasons set forth herein, the Motion for Summary Judgment is DENIED.

         I. Background

         In this personal injury action, Plaintiff alleges she sustained injuries and damages “when suddenly and without warning she slipped and fell on a puddle of water near the produce and freezer sections” of Defendant's store.[5] Plaintiff alleged in her Petition for Damages that “[t]he puddle of water that caused the fall appeared to be leaking from a nearby freezer or produce cooler.”[6] However, Plaintiff testified in her deposition that while her fall occurred “close to the freezer, ” she didn't “know if it was leaking from the freezer….”[7] Plaintiff testified that she slipped on what appeared to be water, but that she did not have any information to suggest how the water came to be on the floor or how long it was there, nor did she have any information suggesting that a Wal-Mart employee caused the water to be on the floor, or that a Wal-Mart employee was aware of the fact that there was water on the floor prior to her fall.[8] Plaintiff further testified that after the fall, she saw “a couple of streaks of water on the floor, ”[9] but that she did not notice any track or buggy marks through the area.[10] Relying on Plaintiff's deposition testimony, Defendant argues that Plaintiff “has not and cannot produce any evidence that Walmart created or had actual or constructive notice of the substance on the floor.”[11] Because Plaintiff cannot establish this necessary element of her claim under the Louisiana premises liability statute, La. R.S. § 9:2800.6, Defendant contends summary judgment is proper.

         Plaintiff opposes summary judgment based primarily on video surveillance of the area of the accident. Plaintiff argues that the surveillance video clearly shows two Wal-Mart employees pulling a large pallet immediately before the accident, the pallet striking a display located in the exact area where Plaintiff fell, and the two employees “scrambling around picking up items off of the ground that had fallen off of the pallet and picking up some items that had fallen off of the display.”[12] Plaintiff reasons that this video creates a question of fact as to whether Defendant actually created the hazardous condition or had constructive knowledge of the condition (because the employees should have seen any such condition when they were picking up the area).[13]

         II. Law and Analysis

         A. Summary Judgment Standard

         Pursuant to well-established legal principles, summary judgment is appropriate where there is no genuine disputed issue as to any material fact, and the moving party is entitled to judgment as a matter of law.[14] A party moving for summary judgment must inform the court of the basis for the motion and identify those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, that show that there is no such genuine issue of material fact.[15] If the moving party carries its burden of proof under Rule 56, the opposing party must direct the court's attention to specific evidence in the record which demonstrates that the non-moving party can satisfy a reasonable jury that it is entitled to a verdict in its favor.[16] This burden is not satisfied by some metaphysical doubt as to alleged material facts, by unsworn and unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of evidence.[17] Rather, Rule 56 mandates that summary judgment be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial.[18] Summary judgment is appropriate in any case where the evidence is so weak or tenuous on essential facts that the evidence could not support a judgment in favor of the non-moving party.[19] In resolving a motion for summary judgment, the Court must review the facts and inferences in the light most favorable to the non-moving party, and the Court may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual disputes.[20]

         B. The Louisiana Merchant Liability Statute

         Because the Court's subject matter jurisdiction is based on diversity, Louisiana substantive law applies, [21] and Louisiana substantive law “determines which facts are material.”[22] Louisiana Revised Statute § 9:2800.6 governs negligence claims brought against a merchant.[23] The statute provides, in pertinent part:

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 addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(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, alone, to prove failure to exercise reasonable care.

         The Louisiana Supreme Court has held that “[b]ecause the statute is clear and unambiguous and contains no provision for shifting the burden to the defendant to prove his lack of culpability…it is the plaintiff's burden to prove each element of her cause of action under La. R.S. 9:2800.6(B).”[24] Here, as noted above, Defendant argues that summary judgment is proper because Plaintiff cannot establish that Defendant either created the hazardous condition or had actual or constructive notice of the condition.

         1. A Genuine Issue of Material Fact Exists Regarding Whether Defendant Created the Condition

         With respect to a showing that Defendant created the hazardous condition, “there must be proof that the merchant is directly responsible for the spill or other hazardous condition.”[25] Here, the Court has reviewed the video surveillance and finds that a factual issue exists regarding whether Defendant created the hazardous condition.[26] Although the video is not as “clear” as Plaintiff suggests, on summary judgment, the undersigned must review the facts and inferences in the light most favorable to the non-moving party.[27] The video shows two individuals with a pallet passing through the same area in which Plaintiff fell.[28] Plaintiff correctly points out that it appears that the pallet strikes a display, and that the two individuals stop what they are doing to pick up things from the floor and return them to either the display or the pallet itself. Although the two individuals in the video have not been positively identified, it appears to the Court that they both are wearing khaki pants and dark, possibly blue, shirts. During the deposition testimony of Ms. Sonita Odoms, one of Defendant's assistant managers, Ms. Odoms testified that such clothes are normally worn by Wal-Mart employees and that she would assume that the two individuals were Wal-Mart employees if that was what they were wearing.[29] Given that the surveillance video arguably shows two Wal-Mart employees bumping into the display table and thereafter picking up things less than a minute prior to Plaintiff's fall in the same area, the Court finds an issue of fact exists as to whether Defendant created the hazardous condition.[30]

         Defendant argues that “Plaintiff's mere speculation that the water on the floor came from the box dropped by the Walmart employee is insufficient to defeat Walmart's motion for summary judgment.”[31] Defendant relies heavily on Williams-Ball v. Brookshire Grocery Co.[32] to support its position that speculation as to the source of the water is insufficient to defeat summary judgment.[33] As an initial matter, it appears that plaintiff's claims in Williams-Ball were dismissed by the trial court following a bench trial.[34] Further, the plaintiff in Williams-Ball - who testified during trial that she slipped and fell on a clear liquid that looked like egg - argued, inter alia, that the merchant created the hazardous condition based on surveillance video showing a grocery store employee stocking eggs in the area where the incident occurred 45 minutes prior to the fall.[35] The surveillance video did not show the employee spilling anything on the ground or dropping a carton of eggs, but it did show the employee “setting a box down in the area of the fall and dropping a piece of cardboard a few feet away.”[36] During 45-minute period between stocking and plaintiff's fall, “over 15 people, including several with shopping carts, traversed directly over or adjacent to the fall location” and not one of them “stopped to look at anything on the floor, slipped, or appeared to have any trouble navigating the area, ”[37] and despite the period of time, the testimony of witnesses confirmed that plaintiff slipped in something that appeared “fresh.”[38] Here, in contrast to Williams-Ball, video surveillance shows what appears to be two of Defendant's employees hitting a display and thereafter picking up in the area of Plaintiff's fall almost immediately prior to the fall. As explained above, the Court finds that a jury might reasonably infer that Defendant created the hazardous condition based on such surveillance video.[39]

         2. A Genuine Issue of Material Fact Exists Regarding Whether Defendant Had Constructive Notice of the Condition

         Likewise, the undersigned finds that there is a genuine issue of material fact regarding whether Defendant had constructive notice of the condition. La. R.S. § 9:2800.6(C)(1) defines “constructive notice” to mean that “the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.”

         As explained above, the video surveillance shows (presumably) two Wal-Mart employees picking up in the area where Plaintiff's fall occurred immediately prior to the accident. The parties agree that Plaintiff slipped on a clear liquid substance, likely water, [40] and Plaintiff argues based on Defendant's own policies and procedures that these two employees “should have NOT ONLY noticed the hazardous condition on the ground, but they should have cleaned up the hazardous condition immediately or stood by the hazardous condition until it could be cleaned up.”[41] In her deposition, Ms. Odoms agreed that if these employees were pulling a cart in the same vicinity as the accident, it would be a violation of Defendant's policies for the employees to “not locate that water.”[42] Based on the video surveillance, and drawing all reasonable inferences regarding what the video shows in favor of Plaintiff at this stage of these proceedings, the fact that two of Defendant's employees were picking up in the area of the accident immediately prior to Plaintiff's fall raises a genuine issue of material fact as to whether Defendant had constructive notice of the condition prior to the accident.[43]

         III. Conclusion

         For the reasons set forth herein, IT IS HEREBY ORDERED that the Motion for Summary Judgment[44] filed by defendant, Wal-Mart Inc. f/k/a Wal-Mart Stores, Inc. is DENIED.

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