United States District Court, W.D. Louisiana, Lake Charles Division
BOBBY GREEN, SR.; as administrator of the estate of KAYLA M. GREEN
KROGER COMPANY, ET AL.
D. CAIN, JR. UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
Summary Judgment Standard
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.
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
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).
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. 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.
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. § 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 ...