United States District Court, E.D. Louisiana
ORDER AND REASONS
ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.
HEREBY ORDERED that the Motion for Summary Judgment (Rec.
Doc. 10) filed by defendants, Wal-mart Stores, Inc. and
Wal-Mart Louisiana, L.L.C. (hereinafter, collectively
"Wal-Mart") is DENIED.
matter is before the court on Walmart's motion for
summary judgment. Walmart argues that it is entitled to
summary judgment because plaintiff, Jean Apelacion, cannot
prove all of the elements necessary to recover for her
alleged slip and fall; specifically, she cannot prove that
Walmart had actual or constructive knowledge of a liquid
substance on the floor. Plaintiff opposes the motion, arguing
that a genuine fact issue exists as to whether Walmart had
constructive notice of a slipping hazard on the vestibule
judgment is proper when, viewing the evidence in the light
most favorable to the non-movant, "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. Proc. 56(a).
A factual dispute is "genuine" if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party, and "material" if it might affect
the outcome of the suit under the governing substantive law.
Cutting Underwater Techs. USA. Inc. v. Eni U.S. Operating
Co.. 671 F.3d 512, 517 (5th Cir. 2012).
Liability in Louisiana
Revised Statutes § 9:2800.6, which establishes the
burden of proof in slip and fall cases brought against
merchants, provides in part:
A. A merchant owes a duty to persons who use his premises to
exercise reasonable care to keep his aisles, passageways, and
floors in a reasonably safe condition. This duty includes a
reasonable effort to keep the premises free of any hazardous
conditions which reasonably might give rise to damage,
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
(1) The condition presented an unreasonable risk of harm to
the claimant and that risk of harm was reasonably
(2) The merchant either created or had actual or constructive
notice of the condition which caused the damage, ...