United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY, UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Summary Judgment (Rec. Doc.
10) filed by Defendants Target Corporation of
Minnesota and ACE American Insurance Company (hereinafter
collectively referred to as “Defendants”) set for
submission on June 26, 2019. Plaintiff does not oppose the
motion. Having considered the motion and
memorandum of counsel, the record, and the applicable law,
the Court finds that Defendants' Motion for
Summary Judgment (Rec. Doc. 10) is
matter arises out of Plaintiff's slip and fall at a
Target Store location which occurred on December 19, 2016.
(Rec. Doc. 10-2, p. 1). Originally filed in the 22nd Judicial
District Court for the Parish of St. Tammany, Defendants
removed the matter to this Court on September 7, 2018,
pursuant to 28 U.S.C. § 1332, diversity jurisdiction.
(Rec. Doc. 1, p. 3). Defendants now request this Court to
dismiss the case on summary judgment.
judgment is appropriate only if “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, ” when
viewed in the light most favorable to the non-movant,
“show that there is no genuine issue as to any material
fact.” TIG Ins. Co. v. Sedgwick James, 276
F.3d 754, 759 (5th Cir.2002) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986)). A dispute about a material fact is
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Id. (citing Anderson, 477 U.S. at
248, 106 S.Ct. 2505.). The court must draw all justifiable
inferences in favor of the non-moving party. Id.
(citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505).
Once the moving party has initially shown “that there
is an absence of evidence to support the non-moving
party's cause, ” Celotex Corp. v. Catrett,
477 U.S. 317, 325106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the
non-movant must come forward with “specific
facts” showing a genuine factual issue for trial.
Id. (citing Fed.R.Civ.P. 56(e); Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986)). Conclusory allegations and
denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for
trial. Id. (citing SEC v. Recile, 10 F.3d
1093, 1097 (5th Cir.1993)).
to Louisiana law, an essential element of a slip and fall
claim is that “the merchant either created or had
actual or constructive notice of the condition which caused
the damage, prior to the occurrence.” LSA-R.S.
9:2800.6(B)(2). “Constructive notice” is defined
[T]he claimant has proven that the condition existed for such
a period of time that it would have been discovered if the
merchant had exercised reasonable care. The presence of an
employee of the merchant in the vicinity in which the
condition exists does not alone constitute constructive
notice, unless it is shown that the employee knew, or in the
exercise of reasonable care, should have known of the
LSA-R.S. 9:2008.6(C)(1). The Louisiana Supreme Court has
held: “The statute does not allow for the inference of
constructive notice absent some showing of this temporal
element. The claimant must make a positive showing of the
existence of the condition prior to the fall.”
White v. Wal-Mart Stores, Inc., 699 So.2d
1081, 1084 (La. 1997).
argue that Plaintiff lacks evidence that Target had actual or
constructive notice of an unreasonably dangerous condition
prior to her incident. (Rec. Doc. 10-2, p. 5). Defendants
attach to the motion Plaintiffs deposition. (Rec. Doc. 10-6).
When asked how long the puddle had been on the floor before
she slipped, Plaintiff responded, “I have no
idea.” (Id. at 12). Plaintiff testified,
“I recall them asking me, ‘Where did this come
from?' And I said, ‘I don't know.'”
(Id. at 10). When asked if she saw anything on the
floor before she fell, Plaintiff answered, “I did
not.” (Id. at 11). Considering Plaintiffs
deposition and lack of additional evidence, the Court finds
that Plaintiff failed to establish a positive showing of the
existence of the puddle prior to Plaintiffs fall.