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Peterson v. Brookshire Grocery Co.

United States District Court, W.D. Louisiana, Shreveport Division

December 13, 2018

ROY PETERSON
v.
BROOKSHIRE GROCERY CO., ET AL

          MAGISTRATE JUDGE HORNSBY

          MEMORANDUM RULING

          ELIZABETH E. FOOTE UNITED STATES DISTRICT JUDGE.

         Pending before the Court is a Motion for Summary Judgment [Record Document 16] submitted by Defendants, Brookshire Grocery Company ("Brookshires") and The Travelers Indemnity Company of Connecticut, which prays for this Court to dismiss all claims brought against them by Plaintiff, Roy Peterson. Defendants argue that Plaintiff cannot satisfy his burden of proof pursuant to Louisiana Revised Statute 9:2800.6(B)(2), that Brookshires had constructive notice of the alleged condition on the floor that caused Plaintiff to fall. Id. Plaintiff opposes the motion. [Record Document 26]. Upon consideration of the briefs filed by the parties, and for the reasons stated below, Defendants' motion for summary judgment is GRANTED.

         BACKGROUND

         Plaintiff filed this suit for damages arising out of a slip and fall incident at a store operated by Brookshire Grocery Company d/b/a Super 1 Foods in Shreveport, Louisiana. According to the filings, Plaintiff entered the Super 1 Foods on May 21, 2017, and was shopping in the produce section when he fell. Record Document 1-1, ¶s 2-3. The fall occurred when Plaintiff stepped on a grape. Record Document 26, p. 4. According to a surveillance video that was viewed during the deposition of store employee Detrick Phillips ("Phillips"), Plaintiff fell at approximately 1:39 p.m. in the produce department, a few feet away from the salad and grape case. Record Document 26- 2, p. 2. The same surveillance video showed three people near the salad case between 1:32 and 1:39 p.m. Id. at 5. The video does not show what those individuals were doing, just that they were near the salad case. Id.

         Approximately five or six minutes before Plaintiff fell, Phillips had instructed another employee, Jamichael, to go check the floor of the produce department. Id. at 7, 9. According to Phillips, "checking the floor" involved checking to see if any areas of inventory were empty and if anything was on the floor itself. Id. Instead of going out onto the floor, Jamichael looked at the floor of the produce department from the doors that led to the back of the store and decided that no action was needed. Id. at 7. Jamichael was "written up" in connection with this incident when Phillips found out that he had not checked the floor in accordance with store procedures. Id. at 9.

         According to the deposition of assistant store manager Kenneth Cotton ("Cotton"), Plaintiff came to his office after the fall and said he had slipped on a grape. Record Document 26-3, p. 2. When Cotton inspected the scene, he saw a skid mark from Plaintiffs shoe and a grape in the middle of that skid mark. Id. Cotton saw no liquid or anything else on the floor. Id. On the accident report, the customer description of the incident stated, "Walking through produce and slipped on a grape." Id. at 5.

         Plaintiff alleges that the fall caused him to sustain severe injuries and that Defendants are responsible for his past, present, and future medical expenses, pain and suffering, mental pain and anguish, permanent injuries and disability, loss of wages and economic opportunity, and loss of enjoyment of life. Record Document 1-1, ¶s 8, 10.

         LEGAL STANDARD

         Summary judgment under Federal Rule of Civil Procedure 56 is appropriate when the pleadings, answers to interrogatories, admissions, depositions, and affidavits on file indicate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the burden at trial will rest on the non-moving party, the moving party need not produce evidence to negate the elements of the non-moving party's case; rather, it need only point out the absence of supporting evidence. See Id. at 322-323.

         If the movant satisfies its initial burden of showing that there is no genuine dispute of material fact with the motion for summary judgment, the nonmovant must demonstrate that there is, in fact, a genuine issue for dispute at trial by going "beyond the pleadings" and designating specific facts for support. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). "This burden is not satisfied with 'some metaphysical doubt as to the material facts, '" by conclusory or unsubstantiated allegations, or by a mere scintilla of evidence. Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1985) (internal citations omitted); Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986) (the court must "review the facts drawing all inferences most favorable to the party opposing the motion"). While not weighing the evidence or evaluating the credibility of witnesses, courts should grant summary judgment where the critical evidence in support of the nonmovant is so weak and tenuous that it could not support a judgment in the nonmovant's favor. Little, 37 F.3d at 1075.

         Additionally, Local Rule 56.1 requires the moving party to file a statement of material facts as to which it contends there is no genuine issue to be tried. Pursuant to Local Rule 56.2, the party opposing the motion for summary judgment must set forth a "short and concise statement of the material facts as to which there exists a genuine issue to be tried." All material facts set forth in the statement required to be served by the moving party "will be deemed admitted, for purposes of the motion, unless controverted as required by this rule." Local Rule 56.2.

         LAW AND ANALYSIS

         The Court begins by noting that Plaintiffs own version of events is internally inconsistent. In his complaint, Plaintiff alleges that a Brookshires employee allowed a liquid to remain on the floor of the produce department and that Plaintiff slipped on the liquid and fell. Record Document 1-1, ¶s 4-5. In Plaintiffs deposition, he describes the incident in detail, stating that he fell onto his right side after slipping on some liquid that was on the floor. Record Document 16-3, p. 6. Plaintiff stated that he knew his right side hit the ground first because his pants were wet. Id. at 7. Defendants' main argument in support of their motion for summary judgment is that Plaintiff admitted in his deposition that he had no evidence as ...


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