The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ERNESTINE BOLIN and CIVIL ACTION
ROBERT BOLIN
VERSUS NO. 19-11176
LOWE’S HOME CENTERS, L.L.C., ET AL. SECTION: “G”
ORDER AND REASONS
In this litigation, Plaintiffs Ernestine Bolin (“Ms. Bolin”) and Robert Bolin (“Mr. Bolin”)
(collectively, “Plaintiffs”) bring suit against Lowe’s Home Centers, L.L.C. (Lowe’s), Stanley
Access Technologies, L.L.C. (“Stanley”), and DH Pace Company, Inc. (“DH Pace”) (collectively,
“Defendants”). Plaintiffs allege that Ms. Bolin was injured when automatic doors at a Lowe’s
store in Jefferson, Louisiana, closed on her and caused her to fall.1 Before the Court is Lowe’s
“Motion for Summary Judgment.”2 Plaintiffs have not filed an opposition to the instant motion
and therefore the motion is deemed unopposed. Considering the motion, the memoranda in
support, the record, and the applicable law, the Court grants the motion.
I. Background
On April 22, 2019, Plaintiffs filed a Petition against Lowe’s and Stanley in the 24th
Judicial District Court for the Parish of Jefferson, State of Louisiana.3 On June 12, 2019,
Defendants removed the case to this Court asserting diversity jurisdiction pursuant to 28 U.S.C.
1 Rec. Doc. 1-4; Rec. Doc. 20.
2 Rec. Doc. 41.
3 Rec. Doc. 1-4.
§ 1332.4 On December 18, 2019, Plaintiffs filed a First Amended and Supplemental Complaint,
adding DH Pace as a defendant.5
In the Amended Complaint, Plaintiffs allege that they went to a Lowe’s store in Jefferson,
Louisiana, on April 28, 2018.6 Plaintiffs claim that Ms. Bolin attempted to walk to Lowe’s
outdoor garden center through open automatic doors but that the doors closed as she was walking
through.7 Plaintiffs assert that the closing doors hit Ms. Bolin, causing her to fall and injure her
head and right hip.8 Plaintiffs allege that Ms. Bolin was taken by an ambulance to the emergency
room where it was determined that Ms. Bolin’s hip was broken and needed to be replaced, and
that she required several stitches on her head.9
Plaintiffs seek damages for Ms. Bolin’s physical injuries, pain and suffering, emotional
trauma, and loss of enjoyment of life, as well as Mr. Bolin’s loss of consortium and mental
anguish from witnessing the alleged incident.10 Plaintiffs bring claims against Lowe’s as the
alleged premises owner or lessee, Stanley as the company allegedly “responsible for the
manufacture and installation . . . of the automatic doors where Ms. Bolin fell,” and DH Pace as
the company allegedly responsible for the servicing of the automatic doors.11
On December 3, 2020, Lowe’s filed the instant motion for summary judgment.12 Pursuant
4 Rec. Doc. 1.
5 Rec. Doc. 20.
6 Id. at 2.
7 Id. at 3.
8 Id.
9 Id.
10 Id. at 7.
11 Id. at 3–7.
12 Rec. Doc. 41.
to Local Rule 7.5, any opposition to the motion was due eight days before the noticed submission
date.13 Plaintiffs have not filed an opposition to the instant motion and therefore the motion is
deemed unopposed. Plaintiffs further indicated in an email to the Court and all counsel of record
that they do not oppose the instant motion.14 A federal district court may grant an unopposed
motion if the motion has merit.15
II. Lowe’s Arguments in Support of the Motion
Lowe’s urges this Court to grant the instant motion for summary judgment because,
Lowe’s argues, there is no genuine issue of material fact in dispute as to its liability under either
Louisiana Civil Code Article 2317.1 or Louisiana Revised Statute § 9:2800.6.16 Lowe’s argues
that to bring a valid claim under either statute, Plaintiffs “must first prove that [Lowe’s] had, or
should have had, some sort of knowledge of the condition which caused their injury.”17 Lowe’s
contends that Plaintiffs cannot meet this burden.
First, to prove liability for a product defect under Louisiana Civil Code Article 2317.1,
Lowe’s asserts that Plaintiffs must prove “(1) the [sensor] was in [Lowe’s] custody or control; (2)
it had a vice or defect that presented an unreasonable risk of harm; (3) [Lowe’s] knew or should
have known of the unreasonable risk of harm, and (4) the damage was caused by the defect.”18
Lowe’s argues that Plaintiffs cannot meet this standard because they can “offer no evidence to
show that Lowe’s had actual or constructive knowledge of an allegedly defective automatic
13 See EDLA Local Rule 7.5.
14 See Exhibit A.
15 See Braly v. Trail, 254 F.3d 1082 (5th Cir. 2001).
16 Rec. Doc. 41-1.
17 Id. at 7.
18 Id. at 6.
sensor” in the automatic doors that caused Ms. Bolin’s injury.19 Lowe’s asserts that a party is held
to have constructive knowledge only if “the conditions that caused the injury existed for such a
period of time that those responsible, by the exercise of ordinary care and diligence, must have
known of their existence in general and could have guarded the public from injury.”20 Lowe’s
argues that it was unaware of any defect in the door’s sensor because DH Pace “certified the doors
as industry compliant” and because Lowe’s had not received any complaints about the doors for
the entirety of the three years preceding Ms. Bolin’s alleged injury or on the day of the alleged
injury.21 Lowe’s contends that many customers, including Plaintiffs themselves, entered through
the automatic doors on the day in question and noticed no issues.22
Second, to prove liability for a fall on store premises under Louisiana Revised Statute
§ 9:2800.6, Lowe’s argues that Plaintiffs must prove that “(1) a fall occurred on [Lowe’s]
premises due to a condition which presented an unreasonable risk of harm to the claimant and
that risk of harm was reasonably foreseeable; (2) [Lowe’s] either created the condition or had
actual or constructive notice of the condition prior to the occurrence; and (3) [Lowe’s] failed to
exercise reasonable care.”23 Lowe’s contends that Plaintiffs cannot meet this burden because
Plaintiffs cannot prove that Lowe’s created the sensor or that Lowe’s had actual or constructive
notice of its alleged defect.24 Lowe’s claims that Plaintiffs fail to provide any evidence that the
alleged “damage-causing condition existed for some period of time” such that Lowe’s had
19 Id. at 7.
20 Id. (quoting Thibodeaux v. Allstate Ins. Co., 293 So. 3d 797, 805 (La. App. 5th Cir. 2020)).
21 Id. at 8–9.
22 Id. at 11.
23 Id. at 6.
24 Id. at 12.
constructive notice of the condition.25 Lowe’s contends that, without evidence that the doors had
been malfunctioning for at least some period of time, Plaintiffs “cannot establish a genuine issue
of material fact” on the merchant liability claim.26
Plaintiffs have not presented any evidence to contradict Lowe’s assertions. Moreover,
Plaintiffs have represented to the Court that they do not oppose the instant motion.27
III. Legal Standard for Summary Judgment
Summary judgment is appropriate when the pleadings, discovery, and affidavits
demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”28 To decide whether a genuine dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations
or weighing the evidence.”29 All reasonable inferences are drawn in favor of the nonmoving party.
Yet “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”30
If the entire record “could not lead a rational trier of fact to find for the non-moving party,” then
no genuine issue of fact exists and, consequently, the moving party is entitled to judgment as a
matter of law.31 The nonmoving party may not rest upon the pleadings.32 Instead, the nonmoving
25 Id.
26 Id. at 13–14.
27 See Exhibit A.
28 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
29 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
30 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
31 Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
32 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
party must identify specific facts in the record and articulate the precise manner in which that
evidence establishes a genuine issue for trial.33
The party seeking summary judgment always bears the initial responsibility of showing
the basis for its motion and identifying record evidence that demonstrates the absence of a genuine
issue of material fact.34 “To satisfy this burden, the movant may either (1) submit evidentiary
documents that negate the existence of some material element of the opponent’s claim or defense,
or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at
trial, demonstrate that the evidence in the record insufficiently supports an essential element of
the opponent’s claim or defense.”35 If the moving party satisfies its initial burden, the burden
shifts to the nonmoving party to “identify specific evidence in the record, and to articulate”
precisely how that evidence supports the nonmoving party’s claims.36 The nonmoving party must
set forth “specific facts showing the existence of a ‘genuine’ issue concerning every essential
component of its case.”37
The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied
merely by creating “some metaphysical doubt as to the material facts,” “by conclusory
allegations,” by “unsubstantiated assertions,” or “by only a scintilla of evidence.”38 Moreover,
the nonmoving party may not rest upon mere allegations or denials in its pleadings.39 Hearsay
33 See id.; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
34 Celotex, 477 U.S. at 323.
35 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (quoting Little, 939 F.2d at 1299).
36 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris
v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
37 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
38 Little, 37 F.3d at 1075 (internal citations omitted).
39 Morris, 144 F.3d at 380.
evidence and unsworn documents that cannot be presented in a form that would be admissible in
evidence at trial do not qualify as competent opposing evidence.
IV. Analysis
Lowe’s urges this Court to grant its motion for summary judgment because there is no
genuine issue of material fact in dispute and it is entitled to judgment as a matter of law for claims
brought under either Louisiana Civil Code Article 2317.1 or Louisiana Revised Statute
§ 9:2800.6.40 Lowe’s argues that to bring a valid claim under either statute, Plaintiffs “must first
prove that [Lowe’s] had, or should have had, some sort of knowledge of the condition which
caused their injury.”41 Lowe’s contends that Plaintiffs cannot show the requisite knowledge under
either statute.
There are two Louisiana statutes governing premise liability: Louisiana Civil Code Article
2713.1 and Louisiana Revised Statute § 9:2800.6.42 A claim may be brought under both statutes
when an individual is injured by a defect on store premises.43 Louisiana Civil Code Article 2317.1
“provides the negligence standard for damages caused by defects in things” in the custody of a
party:44
The owner or custodian of a thing is answerable for damage occasioned by its ruin,
vice, or defect, only upon a showing that he knew or, in the exercise of reasonable
care, should have known of the ruin, vice, or defect which caused the damage, that
the damage could have been prevented by the exercise of reasonable care, and that
he failed to exercise such reasonable care. Nothing in this Article shall preclude the
court from the application of the doctrine of res ipsa loquitur in an appropriate case.
40 Rec. Doc. 41-1.
41 Id. at 7.
42 Jones v. Bank One Corp., No. 03-0925, 2004 WL 439894, at *1 (E.D. La. Mar. 8, 2004) (Porteous, J.).
43 Capriotti v. Brookshire Grocery Co., No. 18 -00304, 2019 WL 2611037, at *3 (W.D. La. June 25, 2019).
44 Geraci v. Ryan's Family Steak Houses, E., Inc., No. 04-3041, 2005 WL 8174013, at *2 (E.D. La. Nov.
10, 2005) (Feldman, J.).
To prevail on a custodial liability claim under Louisiana Civil Code Article 2317.1 a plaintiff
must demonstrate: (1) the object that caused injury was in the defendant’s custody; (2) the object
contained a vice or defect which presented an unreasonable risk of harm to others; (3) the
defective conditions caused the damage; (4) the defendant knew or should have known of the
defect; (5) the damage could have been prevented by the exercise of reasonable care; and (6) the
defendant failed to exercise such reasonable care.45
Louisiana Revised Statute § 9:2800.6 provides the negligence standard for claims brought
by an individual against a merchant for injuries sustained by a fall on store grounds.46 It provides,
in pertinent part:
B. In a negligence claim brought against a merchant by a person lawfully on the
merchant's premises for damages as a result of an injury, death, or loss sustained
because of a fall due to a condition existing in or on a merchant's premises, the
claimant shall have the burden of proving, in addition to all other elements of his
cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant
and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the
condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining
reasonable care, the absence of a written or verbal uniform cleanup or safety
procedure is insufficient, alone, to prove failure to exercise reasonable care.
To succeed on a merchant liability claim, the plaintiff must prove all three elements of the
statute.47 Therefore, even if the plaintiff prevails on the “risk of harm” and “reasonable care”
elements, it may not sustain a negligence cause of action unless it can also prove that the merchant
had actual or constructive notice of the condition that caused the damage.48
45 Cormier v. Dolgencorp, Inc., 136 F. App'x 627, 628 (5th Cir. 2005).
46 Geraci, 2005 WL 8174013, at *2.
47Error! Main Document Only.White v. Wal-Mart Stores, Inc., 97-0393 (La. 9/9/97), 699 So. 2d 1081,
1084.
48 See id.
Lowe’s contends that Plaintiffs cannot meet the notice requirement of either statute
because Plaintiffs cannot show that Lowe’s had actual or constructive knowledge of any issues
related to the automatic doors’ sensor. To prove that Lowe’s had constructive knowledge of
problems with the sensor, Plaintiffs must point to evidence showing that any issues “existed for
such a period of time that it would have been discovered if [Lowe’s] had exercised reasonable
care.”49 The Fifth Circuit has noted that this requirement means that a plaintiff “must come
forward with positive evidence showing that the damage-causing condition existed for some
period of time, and that such time was sufficient to place the merchant defendant on notice of its
existence” and that a “claimant who simply shows that the condition existed without also showing
that the condition existed for some time before [the accident] has not carried the burden of proving
constructive notice . . . .”50
Lowe’s, as the party seeking summary judgment, bears the initial responsibility of
showing the basis for the motion for summary judgment51 either by “(1) submit[ing] evidentiary
documents that negate the existence of some material element of the opponent’s claim or defense,
or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at
trial, demonstrat[ing] that the evidence in the record insufficiently supports an essential element
of the opponent’s claim or defense.”52 In the instant motion, Lowe’s has demonstrated that there
is no evidence in the record to show it had notice of the alleged defect, an essential element of
Plaintiffs’ claims under either Louisiana Civil Code Article 2713.1 or Louisiana Revised Statute
49 Duncan v. Wal-Mart Louisiana, L.L.C., 863 F.3d 406, 409 (5th Cir. 2017).
50 Id. at 409–10 (quoting White, 699 So. 2d at 1082–84).
51 Celotex, 477 U.S. at 323.
52 Duplantis, 948 F.2d at 190 (quoting Little, 939 F.2d at 1299).
§ 9:2800.6. Lowe’s asserts that the doors’ sensor was certified as industry compliant by DH Pace,
Lowe’s had not received any complaints about the doors not working, no similar accident had
occurred in the store prior to Ms. Bolin’s alleged accident, and the doors had been working
properly on the day in question.53
Because Lowe’s satisfied its initial burden in the instant motion, the burden then shifts to
Plaintiffs to “identify specific evidence in the record, and to articulate” precisely how that
evidence supports Plaintiffs’ claims.54 Plaintiffs have failed to file an opposition to Lowe’s
motion for summary judgment and have failed to present any evidence to show that Lowe’s had
notice of the alleged defect. Therefore, Plaintiffs have failed to prove an essential element of their
claims under Louisiana Civil Code 2713.1 and Louisiana Revised Statute § 9:2008.6.
Accordingly, there are no genuine issues of material fact in dispute and Lowe’s is entitled to
judgment as a matter of law.
V. Conclusion
Considering the foregoing reasons, there are no genuine issues of material fact in dispute
and Lowe’s is entitled to judgment as a matter of law. Accordingly,
53 Rec. Doc. 41-1 at 9–11.
54 Forsyth, 19 F.3d at 1537; see also Morris, 144 F.3d at 380.
IT IS HEREBY ORDERED that Lowe’s “Motion for Summary Judgment’>*> is
GRANTED.
. 30th
NEW ORLEANS, LOUISIANA, this ~~~ dayof April, 2021.
NANNETTE JOLIVETTE BROWN _
CHIEF JUDGE
UNITED STATES DISTRICT COURT
* Rec. Doc. 41.
11
□□□□ □
From: owen@courregeslaw.com
To: eFile-Brown; bcooper@alllaw.com; gforte@grhg.net; ppolitz7@twpdlaw.com; skalis@twpdlaw.com;
switman@witmanlaw.com; wlanglois@grhg.net; eFile-Brown
Ce: Katie White
Subject: RE: 19-11176, Bolin et al. v. Lowe's Home Centers, LLC et al.
Date: Wednesday, January 13, 2021 11:11:08 AM
CAUTION - EXTERNAL:
Judge Brown's Chambers,
I apologize for the lateness of this reply. After conversations with counsel for Lowe's,
additional discovery, and the acceptance of Plaintiff's Reply Memorandum to DH Pace's
Opposition to Plaintiff's Motion for Partial Summary Judgment, the Plaintiffs have decided
not to seek leave to file an opposition to Lowes' Motion for Summary Judgment.
I trust that the other defendants are likewise not opposing Lowes' motion in conjunction
with their respective affirmative defenses of third party fault, or that they will file the
appropriate pleadings as soon as possible.
Thank you for your patience, and if you have any other questions or concerns regarding this
matter, please do not hesitate to contact my office.
Sincerely,
Owen M. Courréges
Attorney at Law
1450 Josephine Street
New Orleans, LA 70130
PH: (504) 304-7916
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