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Apelacion v. Wal-Mart Stores, Inc.

United States District Court, E.D. Louisiana

December 18, 2018

JEAN APELACION
v.
WAL MART STORES, INC., ET AL

         SECTION: "S" (2)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.

         IT IS 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.

         BACKGROUND

         This 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 floor.

         APPLICABLE LAW

         Summary Judgment Standard

         Summary 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).

         Premises Liability in Louisiana

         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 the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, ...

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