United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Summary Judgment
(Rec. Doc. 6) filed by Defendant, Winn-Dixie
Montgomery, LLC. Plaintiffs, Sandra and Nicolas Ferro, filed
an opposition (Rec. Doc. 14), to which
Defendant replied (Rec. Doc. 16).
Considering the Motion, the record, and the law, the Court
finds that the Motion should be DENIED.
Ferro slipped and fell at a Winn-Dixie grocery store on
Tchoupitoulas Street in New Orleans on August 17,
2017. She filed suit-along with her husband, for
loss of consortium-against Winn-Dixie for injuries she
sustained in her fall. Defendant argues that the Plaintiffs
cannot prevail upon the slip and fall claim because
Winn-Dixie acted with reasonable care in setting out cones
and the black and yellow absorption strips, thereby alerting
customers to the danger of moisture in the
oppose summary judgment, arguing there are material issues of
fact as to what cones were placed where. They also object to
summary judgment because discovery is still ongoing.
Plaintiffs note that several photos taken of the site of the
incident were only recently turned over to Plaintiffs, and
“[f]urther crucial facts still remain to be discovered
in this case.”
survey of Louisiana slip and fall cases reveals that courts
tend to rely on video or photographic evidence when granting
summary judgment in favor of a defendant merchant.
Ramirez v. PNK Lake Charles LLC, 2:15-CV-01448, 2017
WL 7798670, at *4 (W.D. La. Oct. 17, 2017) (Mag. J.
Whitehurst) (recommending summary judgment be denied because
of a lack of photographic evidence showing the
characteristics and placement of a wet floor sign); see,
e.g., Lee v. Popeye's Louisiana Kitchen,
Inc., No. CV 18-5831, 2019 WL 656164, at *4 (E.D. La.
Jan. 10, 2019) (granting summary judgment because
surveillance footage indicated slip hazard was open and
obvious), Melancon v. Popeye's Famous Fried
Chicken, 59 So.3d 513, 515 (La.App. 3d Cir. 2011)
(affirming summary judgment upon review of surveillance
video); c.f. Lee v. Ryan's Fam. Steak Houses, Inc.,
960 So.2d 1042, 1047 (La.App. 1st Cir. 2007)
(overturning trial court judgment upon review of surveillance
footage of the fall).
course, there is no hard and fast rule requiring any
particular type of evidence for summary judgment. But the
determination of whether a merchant's precautions against
slip and falls are reasonable is obviously a highly
fact-intensive inquiry. See Bertaut v. Corral Gulfsouth,
Inc., 209 So.3d 352, 357 (La.App. 5th Cir. 2016)
(“Whether protective measures in a particular business
establishment are reasonable must be determined in light of
the circumstances of the case, considering, commensurate with
the risk involved, the merchant's type and volume of
merchandise, the type of display, the floor space utilized
for customer service, the volume of business, the time of
day, the section of the business, and other
considerations.”). And often the details that determine
the outcome of such a case- the distance between the slip and
the sign warning of wet floors, for example-are in material
dispute when the only evidence available is witness
testimony, which is often conflicting and requires
credibility assessments. When photographic evidence of the
accident site as it existed at the time of the fall is
available-or better yet, there is actual video footage of the
fall-the chance of a genuine material issue of fact is
Defendant relies on the deposition testimony of two
Winn-Dixie employees and Ms. Ferro. The Winn-Dixie employees
testified that they put out two cones and absorption strips
in this case to warn customers of moisture coming from the
freezer aisle. At her deposition, Ms. Ferro was shown some
photographs displaying two cones in the frozen food aisle;
one of the cones was green. She denied that this photograph
accurately reflected the aisle as she encountered it.
Specifically, she denied that there was any green cone in the
area when she fell-this she would have
remembered. This photograph, considered and rejected
by Ms. Ferro, is one of several allegedly taken of the aisle
on the day of the accident and which the deponents, Mackie,
Roe, and Ferro, reference in their testimony. However, these
photographs have not been provided to the Court, and, so,
much of what is said in the depositions regarding these
images is without essential context. Defendant does attach a
single blurry photograph of the frozen food aisle, allegedly
displaying the aisle the day of the accident, but Defendant
does not explain who took this photograph, when it was taken,
or whether this is the photograph that was shown to Ms.
Ferro. Given that the cones in the photo provided
appear to both be yellow, the Court infers it is not the
photograph that Ms. Ferro rejected.
color, sizes, shapes, and markings of the cones, their
placement, and whether one or two were set out in the aisle
are facts material to the determination of whether Winn-Dixie
acted reasonably in this case. Thus, there is a genuine
material issue of fact and summary judgment is inappropriate.
IT IS HEREBY ORDERED that the Motion for
Summary Judgment (Rec. Doc. 6) is
 (See Rec. Doc. 1-5 at
 (Rec. Doc 6-1 at 4-5). Ms. Ferro's
claim is governed by the Louisiana Merchant Liability Act,
which sets out additional elements plaintiffs must prove in
order to succeed on a negligence claim for a slip and ...