United States District Court, W.D. Louisiana, Lake Charles Division
D.CAIN, JR. UNITED STATES DISTRICT JUDGE.
the Court is a "Motion for Summary Judgment on Behalf of
Wal-Mart" (Doc. #46) wherein defendant, Wal-Mart
Louisiana, LLC moves for summary judgment in its favor
pursuant to Federal Rule of Civil Procedure 56 on the basis
that there is no genuine issue of material fact for trial.
For the reasons that follow, the motion for summary judgment
will be denied.
October 15, 2015, Plaintiff, Brandy Trahan slipped and fell
in a puddle of water near a Reddy Ice cooler at the front of
the Wal-Mart Store in DeRidder, Louisiana. Reddy Ice owned
the ice cooler that leaked and was responsible for its
maintenance. Fifteen Wal-Mart employees passed near the
water on the floor within 15 minutes prior to Trahan's
fall. Wal-Mart knew the ice coolers leaked and
the leaks spread beyond the confines of the safety
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/V
Risan, 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.
Clift, 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. Brumfleld v. Hollins, 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 she cannot satisfy
the third element of the LMLA. "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. § 9:28OO.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 known, of the condition." Id.
Accordingly, plaintiff bears "an onerous burden" in
satisfying this element of his claim. Scott v.
Dillard's, Inc., 169 So.3d 468, 472 (La. Ct. App.
5th Cir. 2015).
maintains that Mrs. Trahan has failed to submit evidence of
either actual or constructive notice. Wal-Mart relies on the
deposition of Mrs. Trahan and her husband who both testified
that they did not know how long the water had been on the
floor. Wal-Mart also relies on the deposition
testimony of Wal-Mart employees, Beverly Rainwater (Store
Manager) and Flora Pelt (Customer Service Manager), who
Wal-Mart asserts provided no information as to the source of
the water or how long it had been on the
floor. It is undisputed that the leaking Ready
Ice cooler was the source of the water. Wal-Mart also
relies on screen shots of the area where Mrs. Trahan fell to
support its allegation that there is no evidence that
Wal-Mart knew that this Reddy Ice cooler was leaking or had
leaked onto the floor prior to the accident. Wal-Mart
relies on the video surveillance, the screen shot, and Mrs.
Trahan's deposition to suggest that the cooler could not
have been leaking for more than two minutes at the time of
the accident. The video shows that two (2) minutes
earlier, Mrs. Trahan walked in front of the cooler toward the
Trahan maintains that Wal-Mart knew that the ice machines
were not leak-proof, and that they occasionally broke causing
water to leak on the floor. Rainwater testified that when
the coolers leaked, the water would collect on the area
outside of the safety mat placed in front of the ice
cooler. Mrs. Trahan complains that with this
knowledge, Wal-Mart took no action to fix the problem. Mrs.
Trahan suggests that Wal-Mart could ...