United States District Court, E.D. Louisiana
ORDER AND REASONS
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
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.
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.
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.
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.
Summary Judgment Standard
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).
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).
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
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.
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.
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 ...