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Green v. DG Louisiana, LLC

United States District Court, E.D. Louisiana

February 20, 2019

PAMELA GREEN
v.
DG LOUISIANA, LLC

         SECTION “F”

          ORDER AND REASONS

          MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE

         Before 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.

         Background

         This falling merchandise case arises out of a Dollar General customer's claim that she sustained severe bodily injuries while shopping for popsicles.

         On the 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 pound.

         Shortly 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 replacement surgery.

         On 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.

         Dollar 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.

         On 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.[1] 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 testimony.

         The 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.

         I.

         Federal 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).

         The 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.”).

         Summary 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 omitted).

         II.

         A.

         Under 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 provides:

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 procedures.
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.

         B.

         Dollar 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.

         First, 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 the accident:

Q. Did you touch this thermos or move it for any reason prior to the accident?
A. No.

         Accordingly, 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.

         However, 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.

         The 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 ...


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