United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN, UNITED STATES DISTRICT JUDGE
the Court are two motions: (1) the defendant's motion for
summary judgment; and (2) the defendant's motion in
limine to exclude the testimony of the plaintiff's
treating neurosurgeon, Dr. Peter Liechty. For the reasons
that follow, the motion for summary judgment is GRANTED and,
therefore, the motion in limine is DENIED as moot.
falling merchandise case arises out of a Dollar General
customer's claim that she sustained severe bodily
injuries while shopping for popsicles.
evening of March 25, 2016, Pamela Green visited a Dollar
General store located in Violet, Louisiana to purchase frozen
treats for her children. As she opened a door to the
store's freezer and placed her hand on a box of
popsicles, a plastic half-gallon jug called the Igloo Legend
Beverage Cooler fell from its perch on top of the freezer
onto Green's head. The jug weighs slightly less than one
after the incident, Ms. Green allegedly began suffering from
headaches and neck pain. According to her treating
physicians, the incident caused a cervical herniation at the
C-5/6 level, for which she ultimately underwent a disc
January 17, 2017, Green sued DG Louisiana, LLC (“Dollar
General”) in the 34th Judicial District Court for the
Parish of St. Bernard. In her state court petition, Green
alleges that Dollar General's negligence caused her to
sustain severe bodily injuries, necessitating treatment and
surgery. She itemizes her damages as follows: loss of
consortium, loss of past wages and future earning capacity,
permanent disability and disfigurement, past and future
medical expenses, mental anguish, and inconvenience.
General timely removed the lawsuit to this Court, invoking
the Court's diversity jurisdiction. Nearly a year later,
on March 5, 2018, Dollar General moved for summary judgement,
contending that there was no genuine issue of material fact
that it was not liable for Green's injuries under the
Louisiana Merchant Liability Act. That motion relied heavily
upon the deposition testimony of Mindy McBride, a Dollar
General assistant store manager. McBride testified that
Dollar General employees perform safety checks of the shelves
and freezers three times a day, that she personally tested
the stability of the coolers by performing a “bump
test, ” and that she had inspected the cooler placement
an hour and a half before the alleged incident. McBride
further testified that she also bumped up against the
freezers and slammed their doors shortly after the incident,
and the coolers did not move.
March 12, 2018, the plaintiff moved to continue the
submission date on the defendant's motion for summary
judgment until after the completion of discovery, pursuant to
Federal Rule of Civil Procedure 56(d). The plaintiff
submitted that, without additional discovery - namely, a
workable copy of the store's surveillance video,
deposition testimony of the employee on duty at the time of
the incident, and further probing of McBride to determine the
accuracy of her testimony - she could not present facts
essential to justify her opposition. Troubled by the allegations
concerning McBride's testimony, as well as by the delay
with which plaintiff's counsel addressed this issue, the
Court granted the plaintiff's motion to continue and
reset the submission date on the defendant's motion for
summary judgment to May 30, 2018. The plaintiff then
subpoenaed McBride, but she failed to appear for her
deposition. Accordingly, in its Order and Reasons dated June
4, 2018, this Court denied the defendant's motion for
summary judgment, without prejudice, and continued the
pre-trial conference and trial dates from June 7, 2018 and
June 25, 2018 to March 8, 2019 and March 25, 2019,
respectively. Thereafter, the plaintiff filed a motion to
compel and enforce the subpoena against McBride, which was
referred to Magistrate Judge Wilkinson. McBride ultimately
was re-deposed on August 22, 2018, during which she confirmed
that she was “intimidated” prior to her first
deposition; however, she adamantly denied giving false
defendant now moves for summary judgment for a second time,
contending that there is no genuine issue of material fact
that the plaintiff will be unable to satisfy her burden
pursuant to Subsection A of Louisiana's Merchant
Liability Act, La. R.S. § 9:2800.6.
Rule of Civil Procedure 56 instructs that summary judgment is
proper if the record discloses no genuine dispute as to any
material fact such that the moving party is entitled to
judgment as a matter of law. No genuine dispute of fact
exists if the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). A genuine dispute of
fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
mere argued existence of a factual dispute does not defeat an
otherwise properly supported motion. See id. In this
regard, the non-moving party must do more than simply deny
the allegations raised by the moving party. See Donaghey
v. Ocean Drilling & Exploration Co., 974 F.2d 646,
649 (5th Cir. 1992). Rather, he must come forward with
competent evidence, such as affidavits or depositions, to
buttress his claims. Id. Hearsay evidence and
unsworn documents that cannot be presented in a form that
would be admissible in evidence at trial do not qualify as
competent opposing evidence. Martin v. John W. Stone Oil
Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987);
Fed.R.Civ.P. 56(c)(2). “[T]he nonmoving party cannot
defeat summary judgment with conclusory allegations,
unsubstantiated assertions, or only a scintilla of
evidence.” Hathaway v. Bazany, 507 F.3d 312,
319 (5th Cir. 2007) (internal quotation marks and citation
omitted). Ultimately, “[i]f the evidence is merely
colorable . . . or is not significantly probative, ”
summary judgment is appropriate. Anderson, 477 U.S.
at 249 (citations omitted); King v. Dogan, 31 F.3d
344, 346 (5th Cir. 1994) (“Unauthenticated documents
are improper as summary judgment evidence.”).
judgment is also proper if the party opposing the motion
fails to establish an essential element of his case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most
favorable to the non-moving party. Scott v. Harris,
550 U.S. 372, 378 (2007). Although the Court must
“resolve factual controversies in favor of the
nonmoving party, ” it must do so “only where
there is an actual controversy, that is, when both parties
have submitted evidence of contradictory facts.”
Antoine v. First Student, Inc., 713 F.3d 824, 830
(5th Cir. 2013) (internal quotation marks and citation
Louisiana law, “falling merchandise” claims are
governed by Subsection A of Louisiana's Merchant
Liability Act, La. R.S. § 9:2800.6. Davis v.
Wal-Mart Stores, Inc., 00-0445 (La. 11/28/00); 774 So.2d
84, 90 (citing Smith v. Toys “R” Us,
Inc., 98-2085 (La. 11/30/99); 754 So.2d 209). Subsection
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.
La. R.S. § 9:2800.6(A). The Louisiana Supreme Court has
interpreted the plaintiff's burden of proof under La.
R.S. § 9:2800.6(A) as follows:
[A] plaintiff who is injured by falling merchandise must
prove, even by circumstantial evidence, that a premise hazard
existed. Once a plaintiff proves a prima facie premise
hazard, the defendant has the burden to exculpate itself from
fault by showing that it used reasonable care to avoid such
hazards by means such as periodic clean up and inspection
To prevail in a falling merchandise case, the customer must
demonstrate that (1) he or she did not cause the merchandise
to fall, (2) that another customer in the aisle at that
moment did not cause the merchandise to fall, and
(3) that the merchant's negligence was the cause of the
accident: the customer must show that either a store employee
or another customer placed the merchandise in an unsafe
position on the shelf or otherwise caused the merchandise to
be in such a precarious position that eventually, it does
fall. Only when the customer has negated the first two
possibilities and demonstrated the last will he or
she have proved the existence of an “unreasonably
dangerous” condition on the merchant's premises.
Davis, 774 So.2d at 90 (internal citations omitted).
Accordingly, to sustain her burden of proof, Ms. Green must
demonstrate through direct or circumstantial evidence that
(1) she did not cause the cooler to fall, (2) another
customer in the aisle at that moment did not cause the cooler
to fall, and (3) Dollar General's negligence was the
cause of the accident. See id.
General contends that it is entitled to judgment as a matter
of law because Ms. Green cannot satisfy the second prong of
the Davis test. The plaintiff counters that summary
judgment is inappropriate because her own testimony
demonstrates that another customer in the aisle did not cause
the cooler to fall and because conflicting testimony of
Dollar General employees creates a factual dispute as to
whether the merchant's negligence caused the accident.
the Court notes that it is undisputed that Ms. Green has
satisfied the first prong of the Davis test. During
her deposition taken on July 28, 2017, the plaintiff
testified that she did not touch or move the cooler prior to
Q. Did you touch this thermos or move it for
any reason prior to the accident?
she has satisfied on this record, in accordance with La. R.S.
§ 9:2800.6(A) and Louisiana jurisprudence, that she did
not cause the cooler to fall.
the parties disagree as to whether the plaintiff has
established the second prong of the Davis test.
Dollar General contends that Ms. Green has not satisfied her
burden of proving that an unidentified male who was in the
aisle with her did not cause the cooler to fall. The
plaintiff counters that this male customer could not have
caused the cooler to fall because he had just entered the
aisle and was at the opposite end when the incident occurred.
She further submits that Dollar General has attempted to
shift the blame to a customer simply to detract focus from
its failure to properly staff and maintain the store in
question and to follow its own guidelines.
Court finds that the plaintiff's own testimony concerning
the incident fails to negate the possibility that another
customer in the aisle caused the cooler to fall.
Specifically, Ms. Green testified that, upon entering the
store, she “[w]alked down the aisle, get [sic] to the
freezer section, looking at the ice cream. Opened the door,
proceeded to grab the Willy Wonka push-up pops; and come down
the cooler.” She further testified that she did not
“see the top shelf of ...