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Free v. Wal-Mart Louisiana LLC

United States District Court, W.D. Louisiana, Alexandria Division

November 5, 2019

MARILYNN FREE
v.
WAL-MART LOUISIANA LLC

          MAGISTRATE JUDGE PEREZ-MONTES

          MEMORANDUM RULING

          DEE D. DRELL, JUDGE UNITED STATES DISTRICT COURT

         Before the court is a motion for summary judgment filed by defendant, Wal-Mart Louisiana, LLC ("Wal-Mart") in the above-captioned personal injury suit. (Doc. 24). For the reasons explained herein, the motion will be GRANTED in full, dismissing all claims by plaintiff, Marilyn Free, against Wal-Mart.

         I. Background

         A. Relevant Facts

         Plaintiff claims that, on or about November 7, 2016, while shopping at the Wal-Mart location at 3636 Monroe Highway in Pineville, Louisiana, she was injured when she reached up to pull a boxed toy from a shelf above her head, at which time several books slid from their location on top of the boxed toy and hit her in the face. (Doc. 1-2 at ¶ HI; Doc. 24-2 at 22:8-23). As a result of the impact of these books to her "face, head and neck area[, ]" plaintiff alleges she suffered various damages and injuries, including physical pain and suffering, mental anguish, lost wages, loss of enjoyment of life and loss of consortium. (Doc. 1-2 at ¶ IV). Plaintiff attributes her injuries to Wal-Mart's negligence in failing to properly inspect the toy section where she was shopping.

         Wal-Mart denies negligence in conjunction with plaintiffs claims in this suit. Specifically, Wal-Mart responds with the affidavit of Rodney Lowery (Lowery), the then-manager of Wal-Mart's toy department, who attests that, on the date in question, he and fellow toy department employees conducted inspections of the toy department. Lowery attests that these inspections specifically sought misplaced merchandise, including in the area around the ride-on toys where plaintiffs accident occurred. (Doc. 24-3). Wal-Mart urges dismissal of plaintiffs' claims based on a lack of prima facie evidence.

         B. Relevant Standard

         Fed. R. Civ. P. 56 provides that any party may move for summary judgment as to one or more claims or defenses. "Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986).

         II. Analysis

         Plaintiffs claims arise under Louisiana's theory of merchant premises liability found at La. R.S. 9:2800.6(A). Specifically, subsection (A) provides that

[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 hazardous conditions which reasonably might give rise to damage.
Interpreting this statute, the Fifth Circuit explains,
[t]o prevail in a falling merchandise case, the customer must demonstrate that (1) he or she did not cause the merchandise to fall, (2) that another customer in the aisle at that moment did not cause the merchandise to fall, and (3) that the merchant's negligence was the cause of the accident[.] [T]he customer must show that either a store employee or another customer placed the merchandise in an unsafe position on the shelf or otherwise caused the merchandise to be in such a precarious position that eventually, it does fall. Only when the customer has negated the first two possibilities and demonstrated the last will he or she have proved the existence of an "unreasonably dangerous" condition on the ...

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