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Phillis Cone v. DG Louisiana, LLC

United States District Court, E.D. Louisiana

March 11, 2019

PHILLIS CONE
v.
DG LOUISIANA, LLC

         SECTION “F”

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE.

         Before the Court is the defendant's motion for summary judgment. For the reasons that follow, the motion is GRANTED.

         Background

         This 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 chips.

         On 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.[1] 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.

         As a 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.

         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.

         The Louisiana Merchant Liability Act, La. R.S. § 9:2800.6, establishes the plaintiff's burden of proof in ...


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