United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court is the defendant's motion for summary judgment.
For the reasons that follow, the motion is GRANTED.
slip-and-fall case arises out of a Dollar General
customer's claim that she slipped on a piece of plastic
and sustained serious injuries while shopping for potato
December 29, 2016, Phillis Cone, accompanied by her two
grandchildren, visited a Dollar General store located in
Bush, Louisiana. As Ms. Cone approached the potato chip
aisle, with her grandchildren trailing behind, she allegedly
slipped and caught her right arm on a potato chip rack.
Although an incident report was not completed, Dollar
General's surveillance video footage captures the
forty-one minutes preceding Ms. Cone's slip-and-fall, as
well as the incident itself. Referring to the plastic object
as a “milk tab, ” Ms. Cone attributes the cause
of her slip-and-fall to a white, circular, plastic lid used
to seal a jug of milk.
result of the incident, Ms. Cone allegedly sustained a tear
to her right rotator cuff and a disc bulge at the L4-L6
levels. Cone sued DG Louisiana, LLC (“Dollar
General”) on December 27, 2017 in the 22nd Judicial
District Court for the Parish of St. Tammany, asserting that
Dollar General's negligence caused her injuries. On
February 7, 2018, Dollar General removed the lawsuit to this
Court, invoking the Court's diversity jurisdiction.
Dollar General now seeks summary judgment in its favor,
contending that Ms. Cone cannot prove all of the essential
elements of her claim under Louisiana's Merchant
Liability Act, La. R.S. § 9:2800.6, or establish that
the piece of plastic caused her to fall.
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 Merchant Liability Act, La. R.S. § 9:2800.6,
establishes the plaintiff's burden of proof in