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Stirgus v. Dillard Department Stores, Inc.

United States District Court, E.D. Louisiana

September 27, 2018

SONYA STIRGUS
v.
DILLARD DEPARTMENT STORE, INC.

         SECTION: “B” (1)

          ORDER AND REASONS

         Before the Court is Defendant Higbee LAMCOMS, LP's (“Dillard's”) Motion for Summary Judgment (Rec. Doc. 14), Plaintiff Sonya Stirgus' Opposition (Rec. Doc. 16), and Defendant's Reply Memorandum (Rec. Doc. 20). For the reasons discussed below, IT IS ORDERED that the Motion (Rec. Doc. 14) is DENIED. FACTS AND PROCEDURAL HISTORY

         Plaintiff is a resident of Louisiana, mother, and regular Dillard's customer. See Rec. Doc. 1-1 at 3; 14-1 at 9. Defendant is a Delaware limited partnership. See Rec. Doc. 1 at 2.

         On October 21, 2016, Plaintiff went with her two children to Defendant's store in Oakwood Mall. See Rec. Doc. 16. Plaintiff was looking through lingerie products which were located under a shelf with a mannequin on it. See Rec. Doc. 14-1 at 3. The mannequin fell off the shelf, striking Plaintiff. See id.

         Soon thereafter, a store associate came to the area and found Plaintiff standing, crying, and holding her face. See Rec. Doc. 16 at 2. Plaintiff states that she “heard” the associate picking up the mannequin. See id. The mannequin was never put back on display, it was placed in storage. See id. The mannequin has since “disappeared.” See id; Rec. Doc. 20. at 4.

         On August 7, 2018, Defendant filed its motion for summary judgment. See Rec. Doc. 14. On August 14, 2018, Plaintiff filed an opposition. See Rec. Doc. 16. On August 20, 2018, Defendant filed a reply memorandum. See Rec. Doc. Nos. 18, 19, 20.

         LAW AND ANALYSIS

         A. Summary Judgment Standard

         Under Federal Rule of Civil Procedure 56, summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). See also TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A genuine issue of material fact exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court should view all facts and evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory allegations are insufficient to defeat summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

         The movant must point to “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. If and when the movant carries this burden, the non-movant must then go beyond the pleadings and present other evidence to establish a genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, “where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). “This court will not assume in the absence of any proof that the nonmoving party could or would prove the necessary facts, and will grant summary judgment in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the [non-movant].” McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 357 (5th Cir. 2017).

         B. Plaintiff survives summary judgment because enforcement of an adverse inference sanction is due as neither the mannequin or the display shelf involved in the incident are available to her and Defendant offers no explanation as to their whereabouts.

         Spoliation is the destruction of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. See Richardson v. Cella, 1 F.Supp.3d 484, 498 (E.D. La. 2014). Federal courts have the power to sanction parties who have destroyed evidence. See id. The party seeking enforcement of the sanction bears the burden. See id.

         Courts have sanctioned spoilaters by imposing adverse inferences. See Bryant v. Wal-Mart La. LLC, 2017 U.S. Dist. LEXIS 211275, *1, *4 (W.D. La. December 22, 2017). The rationale of such is based on the notion that a party destroys evidence relevant to litigation because the evidence is harmful to their case. See id.

         To have a court enforce an adverse inference sanction, the party must show three things. See Condrey v. Sun Trust Bank of Georgia, 431 F.3d 191, 203 (5th ...


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