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" (Doc.
34) wherein Lowe's Home Centers, LLC
("Lowe's") seeks to be dismissed from this
lawsuit. Lowe's maintains that Plaintiff Naomi Pousson
cannot carry her burden of proof under the Louisiana Merchant
Liability Statute. For the reasons that follow, the motion
will be denied.
litigation arises out of an incident that occurred in the
women's restroom at the Lowe's Home Centers Store in
Sulphur, Louisiana. The restroom was empty when Mrs. Pousson
entered. Defendant asserts that there was no water on the
floor in the stall Mrs. Pousson used. Mrs. Pousson disputes
this and remarks that her testimony is that she did not
notice any water on the floor; in addition, the stall was not
well lit. She also testified that the water could
have been there before she entered the stall. Mrs. Pousson
noticed the water after she flushed the toilet, turned to
exit, and fell to the floor.
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.
1997). Plaintiffs failure to prove any of these required
elements will prove fatal to her claim. White v. Wal-Mart
Stores, Inc. 699 So.2d 1081, 1086 (La. 1997).
plaintiff has the burden to prove the merchant either created
or had actual or constructive notice of the condition which
caused the damage, prior to the occurrence. Bernard v.
Dolgencorp, LLC, 2017 WL 3273739 *2 (W.D. La.
08/01/2017). Lowe's argues that Mrs. Pousson cannot
provide competent summary judgment evidence showing that
Lowe's employees knew the toilet would leak, or that
Lowe's should have known the toilet would leak.
Lowe's relies on evidence that shows its employees
cleaned and flushed the toilet the night before Mrs.
Pousson's fall, and there have been no reports of this
toilet leaking, or issues with this toilet that required
repairs prior to her fall.
Pousson submits summary judgment evidence to create a genuine
issue of material fact. First, she submits her deposition
testimony wherein she testified that she did not notice the
water until after her fall as opposed to Lowe's
interpretation of her deposition testimony that there was no
water on the floor prior to her fall. Next, she submits
photographs of the toilet taken immediately after the fall
which indicate that the public toilet was not sealed to the
uneven tile floor.
also submits the affidavit of Earl Wright, II, a licensed and
bonded plumber who declares that based on the above-mentioned
photographs, Lowe's or its delegate had removed the
toilet for repairs, but the workers who performed the work
did not reseal the base of the toilet to the
floor. Mr. Wright also declared that because
there were no maintenance records for the women's
restroom for the year before, it is more likely than not that
the toilet was removed and replaced without a new seal around
the base more than a year before this slip and
fall. He further stated that it is essential to
seal the base of a toilet installed on a tile floor in a
public restroom to prevent it from rocking, leaking and to
prevent damage to the toilet that could cause
leaking. Mr. Wright opined that without being
sealed to the floor, the toilet would have leaked
intermittently, depending on the number and weight of the
store patrons using it, and that wobbling or rocking of the
toilet from use can also cause the flush valve assembly to
leak. Mr. Wright concluded that the toilet in
Lowe's restroom wobbled which caused water to leak from
the base of the toilet, or loosened a portion of the flush
valve assembly, which caused water to leak from the rear
toilet and pool on the floor.
relies on Maffei v. Dollar Tree Stores, Inc., 2016
WL 6474934 *1 (E.D. La. 11/02/16) wherein the plaintiff
alleged she fell off of a loose toilet seat that was missing
two nuts. Defendant was granted summary judgment based on
plaintiffs failure to establish that defendant had either
actual or constructive notice of the broken toilet seat. In
Maffei, the plaintiff attempted to satisfy the
constructive notice element by arguing that if the defendant
had exercised reasonable care by cleaning the bathroom
properly, it would have been put on constructive notice that
the toilet was defective. In the instant case, Lowe's
relies on evidence that the toilets were cleaned and flushed
the night before, the toilet did not leak, and no repairs
were performed on the toilet in the eight (8) months prior to
Ms. Pousson's fall.
though Ms. Pousson's plumbing expert opined that the
toilet must have been repaired in the past, that does not
prove that the toilet leaked prior to Ms. Pousson's fall
or moreover, that Lowe's had actual or constructive
notice of the leak. However, Ms. Pousson also contends that
Lowe's created the hazard by removing the caulk and
failing to reseal the toilet citing Deshotel v
Wal-Mart Louisiana LLC,850 F.3d 742, 747 (5th Cir.
2017). In Deshotel, the plaintiff slipped and fell
on water that had dripped from a leaking roof. The Fifth
Circuit reversed the district court's grant of summary
judgment in favor of Wal-Mart finding that plaintiff had
provided enough evidence that a reasonable jury could find
that she slipped on water that leaked through the roof, and
Wal-Mart's purportedly negligent maintenance of the roof
could suffice to show that it "created ... the condition
which caused the damage" under Louisiana Revised Section
9:2800.6. In Deshotel, there was evidence of various
leaks prior to plaintiffs fall when skylights were
installed-leaks that were repaired after she fell. Indeed,
there were issues of fact as to whether it had rained that
day and how long the roof had been leaking. Id.