United States District Court, W.D. Louisiana, Lake Charles Division
R. SUMMERHAYS, UNITED STATES DISTRICT JUDGE
the Court is a Motion for Summary Judgment filed by
Defendant, DG Louisiana, LLC. Pursuant to its motion,
Defendant seeks dismissal with prejudice of this merchant
liability suit brought by Plaintiff Glenda Carter. For the
reasons that follow, Defendant's motion is DENIED.
brings this suit for damages allegedly sustained due to a
slip and fall at a Dollar General store owned by Defendant
and located at 1419 E. Prien Lake Road, in Lake Charles,
Louisiana. According to Plaintiff, on the evening of October
22, 2015, sometime between the hours of 7:00 and 8:30 p.m.,
she and her daughter stopped at Dollar General to purchase
personal items for Ms. Carter's grandson who had been
admitted to a local hospital,  Plaintiff testified she
turned left from the main aisle of the store onto the last
aisle on the eastern side of the store to look for a pair of
slippers. Plaintiff took about five steps into the aisle when
she slipped and fell on store merchandise (specifically,
clothing) discarded on the floor of the aisle. Thereafter,
Plaintiff filed suit in state court, alleging the fall caused
"injuries to her body as a whole, including, but not
limited to back and neck," as well as mental and
subsequently removed the suit to this Court on the basis of
diversity jurisdiction. Defendant now seeks dismissal of
Plaintiff s suit, contending "no trip and fall incident
occurred as claimed by Plaintiff," and Plaintiff has
been "untruthful about this alleged incident, and quite
possibly, is committing fraud." Alternatively,
Defendant argues "even if the incident did occur,"
Plaintiff cannot show Defendant had actual or constructive
notice of the condition which caused Plaintiffs damages, and
therefore summary judgment in Defendant's favor is
party may move for summary judgment, identifying each claim
or defense-or the part of each claim or defense-on which
summary judgment is sought." Fed.R.Civ.P. 56(a).
"The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Id. "A genuine issue of material
fact exists when the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Quality Infusion Care, Inc. v. Health Care Service
Corp., 628 F.3d 725, 728 (5th Cir. 2010). As summarized
by the Fifth Circuit:
When seeking summary judgment, the movant bears the initial
responsibility of demonstrating the absence of an issue of
material fact with respect to those issues on which the
movant bears the burden of proof at trial. However, where the
nonmovant bears the burden of proof at trial, the movant may
merely point to an absence of evidence, thus shifting to the
non-movant the burden of demonstrating by competent summary
judgment proof that there is an issue of material fact
Lindsey v. Sears Roebuck and Co., 16 F, 3d 616, 618
(5th Cir. 1994) (internal citations omitted).
reviewing evidence in connection with a motion for summary
judgment, "the court must disregard all evidence
favorable to the moving party that the jury is not required
to believe, and should give credence to the evidence favoring
the nonmoving party as well as that evidence supporting the
moving party that is uncontradicted and unimpeached."
Roberts v. Cardinal Servs.,266 F.3d 368, 373 (5th
Cir.2001); see also Feist v. Louisiana, Dept. of Justice,
Office of the Atty. Gen.,730 F.3d 450, 452 (5th Cir.
2013) (courts must view all facts and evidence in the light
most favorable to the non-moving party). "Credibility
determinations are not part of the summary judgment
analysis." Quorum Health Resources, L, L.C. v.
Maverick County Hosp. Dist, 308 F, 3d 451, 458 (5th Cir.
2002). Rule 56 "mandates the entry of summary judgment.
. . against a party who fails to make a showing sufficient to
establish the existence of an element ...