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Green v. Kroger Co.

United States District Court, W.D. Louisiana, Lake Charles Division

July 9, 2019

BOBBY GREEN, SR.; as administrator of the estate of KAYLA M. GREEN




         Before the court is a Motion for Summary Judgment [doc. 18] filed by defendant Kroger Company ("Kroger") in response to the persona! injury suit brought by decedent Kayla M. Green ("Green") and currently maintained by Bobby Green, Sr. ("plaintiff) in his capacity as administrator of her estate. Plaintiff opposes the motion [doc. 23], which is now ripe for review. Also before the court is a Motion to Amend [doc, 20], filed by plaintiff and opposed by Kroger.

         I. Background

         This action arises from a fall suffered by Green on March 12, 2017, at a Kroger store in Lake Charles, Louisiana. Doc. 1, art 4, p. 2. Green asserts that she slipped in a wet substance while shopping, fell back, and hit her head. Id., As a result she sustained "severe personal injuries," including neck and back pain and headaches, dizziness, and blurred vision. Id. at 3. She further maintains that there were no signs warning that the floor was wet, and that Kroger is therefore liable for failing to provide a safe passage or warn customers of the unreasonable risk of harm. Id. at 2-3.

         Green filed suit against Kroger and its insurer in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana, on April 8, 2017. Id., at 1-4. Kroger then removed the action to this court on the basis of diversity jurisdiction, 28 U.S.C. § 1332. Doc. 1. Green committed suicide in February 2018 and the plaintiff (her father) was substituted as plaintiff in his capacity as administrator of her estate. Docs. 13, 16; see doc. 13, att. 2 (providing cause of death).

         Kroger now moves for summary judgment, asserting that plaintiff has no evidence that it behaved negligently with respect to any condition that caused Green's accident. Doc. 18, att. 2. Plaintiff opposes the motion. Doc. 23. Plaintiff has also filed a motion to amend the complaint and add a wrongful death claim, because he maintains that Green suffered head trauma in the accident and that this trauma increased her risk of suicide. Doc. 20; doc. 20, att. 2. Kroger opposes the motion. Doc. 25.

         II. Summary Judgment Standard

         A court should grant a motion for summary judgment when 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." Fed.R.Civ.P. 56. The party moving for summary judgment is initially responsible for identifying portions of pleadings and discovery that show the lack of a genuine issue of material fact. Tubacex, Inc. v. M/VRisan, 45 F.3d 951, 954 (5th Cir. 1995). The court must deny the motion for summary judgment if the movant fails to meet this burden. Id.

         If the movant makes this showing, however, the burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotations omitted). This requires more than mere allegations or denials of the adverse party's pleadings. Instead, the nonmovant must submit "significant probative evidence" in support of his claim. State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249 (citations omitted).

         A court may not make credibility determinations or weigh the evidence in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court is also required to view all evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Clift v. Clifl, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material fact exists if a reasonable trier of fact could render a verdict for the nonmoving party. Brumfield v. Rollins, 551 F.3d 322, 326 (5th Cir. 2008).

         III. Application

         Under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), a federal court sitting in diversity jurisdiction applies the substantive law of the forum state.[1] E.g., Cates v. Sears, Roebuck & Co., 928 F, 2d 679, 687 (5th Cir. 1991). In Louisiana, claims against merchants based on falls on the premises are governed by the Louisiana Merchant Liability Act ("LMLA"), Louisiana Revised Statute § 9:2800.6. To prevail, a plaintiff must prove the following (in addition to all other elements of his claim): (1) a condition on the premises presented an unreasonable risk of harm; (2) this harm was reasonably foreseeable; (3) the merchant either created or had actual or constructive notice of the condition; and (4) the merchant failed to exercise reasonable care. La. Rev. Stat. § 9:2800.6(B); White v. Wal-Mart Stores, Inc., 699 So.2d 1081, 1084 (La. 1997).

         Kroger argues that plaintiffs suit fails because he cannot satisfy the third element of the LMLA. Doc. 18, att. 2, pp. 7-9. "To survive a motion for summary judgment, a plaintiff must submit 'positive evidence' that a merchant created or had actual or constructive notice of the conditions that allegedly caused a plaintiffs damages." Perez v. Winn-Dixie Montgomery, LLC, 2019 WL 1367526, at *2 (E.D. La. Mar. 26, 2019) (quoting Duncan v. Wal-Mart La., LLC,863 F.3d 406, 410 (5th Cir. 2017)). To show "constructive notice" under the LMLA, the plaintiff must prove "that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." La. Rev. Stat. ยง 9:2800.6(C)(1). An employee's presence near the condition "does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have ...

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