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Pledger v. Dollar General Store No. 871

United States District Court, E.D. Louisiana

July 23, 2019

CHERYL PLEDGER
v.
DOLLAR GENERAL STORE NO. 871

         SECTION "F"

          ORDER AND REASONS

          MARTIN[L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before the Court are two motions by the defendant: (1) motion for summary judgment; and (2) motion for partial summary judgment on the absence of medical causation and motion in limine. For the reasons that follow, the motion for summary judgment is GRANTED, and the motion for partial summary judgment on the absence of medical causation and motion in limine are DENIED as MOOT.

         Background

          This premises liability lawsuit arises from the plaintiff's allegations that she was injured after slipping on silicon packets on the shoe aisle floor at a Dollar General store.

         On June 16, 2017, Cheryl Pledger and her sister went shopping for “beach slippers” at a Dollar General store in Houma, Louisiana. After being in the store for about five minutes, Ms. Pledger slipped and fell in the shoe aisle. After she fell, she saw silicon packets on the floor.[1] Ms. Pledger was on the floor for only a few seconds and she was able to stand up on her own. Meanwhile, Ms. Pledger's sister went to find a Dollar General employee. The employee, Ms. May, checked on Ms. Pledger and then alerted the store manager of the incident. The manager asked Ms. Pledger questions, including whether she wanted an ambulance (she declined), and completed an incident report. About 10 minutes after her alleged fall, Ms. Pledger went home.

         On January 3, 2018, Ms. Pledger sued Dollar General Louisiana, LLC in state court, alleging that Dollar General's negligence caused her accident. Alleging that the fall caused injuries to her hands, right leg, right thigh, left elbow, and left wrist, she seeks to recover for past and future medical expenses, physical pain and suffering, mental pain and anguish. DG Louisiana, LLC removed the lawsuit to this Court, invoking the Court's diversity jurisdiction. The defendant now moves for summary judgment.

         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, 586 (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 Court emphasizes that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted). 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 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). In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the nonmoving 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.

         Louisiana law governs this diversity case. Louisiana Revised Statute § 9:2800.6 establishes the plaintiff's burden of proof in slip and fall claims against merchants like Dollar General:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any ...

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