United States District Court, W.D. Louisiana, Shreveport Division
MAGISTRATE JUDGE HORNSBY
ELIZABETH E. FOOTE UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
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.
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.
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.
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 ...