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Braud v. Wal-Mart Stores, Inc.

United States District Court, M.D. Louisiana

July 25, 2019

DARLENE BRAUD
v.
WAL-MART STORES, INC., ET AL.

          RULING AND ORDER

          JOHN W. DEGRAVELLES, JUDGE

         This matter comes before the Court on a Motion for Summary Judgment filed by defendant Wal-Mart Stores, Inc. In its answer, Wal-Mart Stores, Inc. denied that it “own[ed] or operate[d] the retail establishment where the incident made the basis of this lawsuit occurred” and asserted “that establishment was owned and operated by Wal-Mart Louisiana, LLC.” (Doc. 3 ¶ 1.) At the July 18, 2019, status conference, the parties agreed that they would substitute the proper party defendant and file a joint stipulation into the record reflecting same. (Doc. 46.) On July 24, 2019, the parties filed that joint stipulation agreeing that they “substitute Wal-Mart Louisiana, LLC in the place of Wal-Mart Stores, Inc. for all purposes, including the pending Motion for Summary Judgment (Rec. Doc. 35).” (Doc. 52.) The Court entered an order effectuating the Stipulation. (Id.)

         Thus, the instant motion is filed by Wal-Mart Louisiana, LLC (“Wal-Mart”[1] or “Defendant”) and is ripe. (Doc. 35.) The motion is opposed by plaintiff Darlene Braud (“Plaintiff” or “Braud”). (Doc. 41.) Wal-Mart filed a reply brief in support of its motion. (Doc. 44.) The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and, for the following reasons, the motion is granted.

         BACKGROUND AND FACTUAL SUMMARY

         According to Plaintiff, on April 14, 2016, while pushing a shopping cart at the Wal-Mart store in Donaldsonville Louisiana, she slipped in what “appeared” to her to be ketchup or barbecue sauce and was injured. (Doc. 35-3 at 56-57, 60-61, 64.)[2] In her deposition, Plaintiff testified that she had gone to the Wal-Mart store to pick up a few items. (Doc. 35-3 at 41.) As she turned on to the condiment aisle, she passed a bucket of water at the “end” of the aisle which was sitting on the floor catching liquid from the ceiling. (Id. at 55.)[3] She proceeded down the aisle where she slipped on what she assumed was either ketchup our barbecue sauce. (Doc. 35-3 at 64.) In her deposition, she testified that the substance on which she slipped was approximately in the middle of the aisle. (Id. at 48-50, 55, 107.) Consistent with this testimony, on a diagram attached to the deposition, she placed the point of her slip and fall approximately midway between the aisle's two ends, some distance past the bucket:

         (Image Omitted)

(Doc. 35-3 at 107.)

         She testified she did not know how the substance got on the floor (id. at 64), did not know how long the substance had been on the floor prior to her accident (id. at 65), did not know who was responsible for putting the substance on the floor (id. at 64-65), did not see a Wal-Mart employee on the aisle (id. at 51), and did not know whether any Wal-Mart employee knew the substance was on the floor and failed to clean it up prior to her accident (id. at 65).

         ARGUMENTS OF THE PARTIES

         Wal-Mart argues that it is entitled to summary judgment because, based on the facts in the record as summarized above, Plaintiff cannot meet her burden of proof under La. R.S. 9:2800.6(B), which requires Plaintiff to prove that Wal-Mart “either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence…” La. R.S. 9:2800.6(B)(2). Wal-Mart's motion is supported by a Statement of Uncontested Facts. (Doc. 35-4.) Wal-Mart points the Court to Plaintiff's testimony where she concedes the substance causing her to fall was either barbecue sauce or ketchup (Doc. 44 at 3-4), and, given that she cannot state where it came from, how long it had been there, and that Wal-Mart was even aware of it before the accident, it is impossible for her to meet her burden under 9:2800.6(B)(2). (Id.)

         In violation of this Court's Local Rules, Plaintiff's opposition failed to “include a short, separate statement of the material facts as to which the opponent contends there exists a genuine issue to be tried.” M.D. La. L.R. 56(b). According to this Rule, “[a]ll material facts set forth in the [Mover's] statement…will be deemed admitted, for purposes of the motion, unless controverted as required by this Rule.” Id.

         Preliminarily, Plaintiff contends that her deposition cannot not be considered in connection with this motion because the required court reporter certification “is missing”. (Doc. 41. at 4.) Plaintiff also maintains that “Wal-Mart must prove that it is a merchant” in order to take advantage of 9:2800.6(B)(2), the statute upon which it relies, and it has not done so. (Id. at 6-7.)

         Next, relying upon an affidavit submitted by Plaintiff with her opposition (Doc. 41-1 at 1-3), Plaintiff argues that there is a question of fact as to whether the substance in which she slipped was, at least in part, made up from liquid in a bucket at the end of the aisle where she fell which, in turn, was catching liquid leaking from the ceiling. (Doc. 41 at 3.) Thus, reasons Plaintiff, since Wal-Mart created the condition which caused Plaintiff's fall and must have been aware of it, her burden under 9:2800.6(B)(2) has been met.

         Plaintiff minimizes the importance of her deposition concessions by faulting “defendant's hypothetical questions seeking and heavily depending upon plaintiff's guess as to the identity of the substance on the floor…” (Doc. 41 at 5.) Further, Plaintiff maintains that her affidavit makes clear that “[s]he never stated definitely that she fell in barbecue sauce or ketchup; [s]he was ...


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