The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
EBONEE FRANCOIS CIVIL ACTION
VERSUS 24-781-SDD-EWD
RACETRAC INC., ET AL.
RULING
This matter is before the Court on the Motion for Summary Judgment1 filed by
Defendants RaceTrac, Inc. (“RaceTrac”) and Starr Indemnity and Liability Company
(“Starr”) (collectively, “Defendants”). Plaintiff Ebonee Francois (“Plaintiff”) filed an
Opposition,2 to which Defendants replied.3
For the reasons that follow, Defendants’ motion is granted.
I. BACKGROUND
Plaintiff filed an original Petition for Damages against Defendants in the Nineteenth
Judicial District Court, Parish of East Baton Rouge, State of Louisiana.4 Plaintiff alleges
bodily injury due to a slip and fall on August 15, 2023, at a RaceTrac convenience store.5
Defendants removed under this Court’s diversity jurisdiction.6
Plaintiff claims she entered the RaceTrac, traversed the store, and slipped and fell
as a result of a puddle of water in the aisle, which allegedly was leaking from a cooler
1 Rec. Doc. 12.
2 Rec. Doc. 13.
3 Rec. Docs. 14; 15.
4 Rec. Doc. 1-3.
5 Id. at ¶¶2-3.
6 Rec. Docs. 1; 5. Plaintiff is a citizen of Louisiana. Rec. Doc. 1 at p. 2. Race Trac is a citizen of Georgia.
Id. Starr is a citizen of Texas and New York. Id. Plaintiff admits that the alleged amount in controversy
exceeds $75,000. Rec. Docs. 1 at p. 2; 5 at p. 2.
prior to the incident.7 Plaintiff asserts she learned from an employee that the leak was an
ongoing problem that had been reported to corporate headquarters.8 She alleges that
RaceTrac created an unreasonable risk of harm, failed to maintain its cooler, had actual
or constructive notice of the dangerous condition, failed to take reasonable measures to
remedy the condition, and failed to prevent the leaking cooler from creating an
unreasonably dangerous condition.9
Defendants now seek summary judgment based on Plaintiff’s inability to establish
the essential elements of Louisiana’s Merchant Liability Statute, La. R.S. 9:2800.6, et
seq.10 Defendants contend that RaceTrac warned of the existence of the allegedly
unreasonably dangerous condition – the wet floor – with three unobstructed warning
signs, thereby making it an “open and obvious” condition.11 Defendants further argue that
RaceTrac exercised reasonable care in its clean-up and in warning patrons of the
condition.12 Plaintiff opposes, arguing that genuine issues of material fact remain as to
whether the condition constituted an unreasonable risk of harm and whether Defendants
lacked reasonable care in keeping a leaking cooler operational and the aisles open.13
II. LAW AND ANALYSIS
A. Summary Judgment Standard
In reviewing a party’s motion for summary judgment, the Court will grant the motion
if (1) there is no genuine issue of material fact, and (2) the mover is entitled to judgment
7 Rec. Doc. 1-3 at ¶3.
8 Id. at ¶4.
9 Id. at ¶6.
10 Rec. Doc. 12-1 at p. 7 (citing La. R.S. 9:2800.6).
11 Id. at p. 1; Rec. Doc. 14 at pp. 5-7.
12 Rec. Doc. 12-1 at pp. 10-15.
13 Rec. Doc. 13.
as a matter of law.14 This determination is made “in the light most favorable to the
opposing party.”15 “When seeking summary judgment, the movant bears the initial
responsibility of demonstrating the absence of a genuine issue of material fact with
respect to those issues on which the movant bears the burden of proof at trial.”16 If the
moving party satisfies its burden, “the non-movant must respond to the motion for
summary judgment by setting forth particular facts indicating that there is a genuine issue
for trial.”17 However, the non-moving party’s burden “‘is not satisfied with some
metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated
assertions, or by only a scintilla of evidence.’”18
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”19 All reasonable factual
inferences are drawn in favor of the nonmoving party.20 However, “[t]he Court has no duty
to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”21 “Conclusory allegations unsupported by specific
facts . . . will not prevent an award of summary judgment.”22
14 Fed. R. Civ. P.. 56(a).
15 Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970) (citing United States v. Diebold, Inc., 369 U.S.
654, 655 (1962); 6 Moore, Fed. Prac. 56.15(3) (2d ed. 1966)).
16 Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718 (5th Cir. 1995) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 333–34 (1986)).
17 Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248–49 (1986)).
18 Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995) (quoting Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994)).
19 Pylant v. Hartford Life and Accident Ins. Co., 497 F.3d 536, 538 (5th Cir. 2007) (quoting Anderson, 477
U.S. at 248)).
20 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
21 RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010) (citing Ragas v. Tenn. Gas Pipeline Co., 136
F.3d 455, 458 (5th Cir.1998)).
22 Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir. 1994).
B. Louisiana’s Merchant Liability Statute
Because this is a diversity action, state law controls.23 “Louisiana’s Merchant
Liability Statute, La. R.S. 9:2800.6, et seq., [ ] governs negligence claims arising from a
fall due to a condition on a merchant's premises.”24 The statute 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.”25 The statute also specifies the requirements for a merchant
liability claim as follows:
(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,26 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.27
23 Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).
24 Expose v. Rouses Enter., LLC, 2023-0587 (La. App. 4 Cir. 5/7/24), 401 So.3d 117, 123.
25 La. R.S. 9:2800.6(A).
26 “Though there is some overlapping, these remaining elements are duty, breach, cause in fact, risk and
harm within the scope of duty, and actual damages.” White v. Wal-Mart Stores, Inc., 97-0393 (La. 9/9/97),
699 So. 2d 1081, 1084, n.3.
27 La. R.S. 9:2800.6(B).
It is undisputed that, to survive summary judgment, Plaintiff must submit evidence
sufficient to preclude summary judgment on all three elements under Louisiana’s
Merchant Liability Statute.28 The United States Court of Appeals for the Fifth Circuit
observes that the statute “‘places a heavy burden of proof on plaintiffs’ in slip and fall
cases.”29 Because Plaintiff must prove all three additional elements of La. R.S.
9:2800.6(B), “the failure to prove any is fatal to the claimant’s cause of action.”30 This
burden of proof never shifts to the defendant.31
C. Defendants are entitled to summary judgment.
Defendants assert that Plaintiff cannot establish multiple essential elements to
support her slip and fall claim under La. R.S. 9:2800.6(B).32 Defendants submit in support:
(1) Plaintiff’s deposition transcript and exhibits (still images from store surveillance
video);33 (2) former RaceTrac shift manager Lashay Wilson’s (“Wilson’s”) deposition
transcript;34 and (3) the Affidavit of RaceTrac General Liability Specialist Jordan Romeo
(“Romeo”).35 Defendants contend the undisputed evidence shows that: (1) in response to
a leak, RaceTrac placed multiple yellow caution signs in the vicinity of a suspected wet
area from condensation from a refrigerator; (2) video evidence, along with Plaintiff’s
testimony, show Plaintiff walked past multiple yellow caution signs on her path to the drink
machines, before allegedly slipping and falling on a wet floor, right after recognizing the
28 Rec. Doc. 13 at p. 5.
29 Bagley v. Albertson’s, Inc., 492 F.3d 328, 330 (5th Cir. 2007) (quoting Jones v. Brookshire Grocery Co.,
847 So. 2d 43, 48 (La. App. 2 Cir. 2003)).
30 White, 699 So. 2d at 1086; see also Bertaut v. Corral Gulfsouth, Inc., 16-93 (La. App. 5 Cir. 12/21/16),
209 So. 3d 352, 356.
31 Ferrant v. Lowe’s Home Ctrs., Inc., 494 F. App’x. 458, 460 (5th Cir. 2012) (citing Melancon v. Popeye’s
Famous Fried Chicken, 59 So.3d 513, 515 (La. App. 3 Cir. 2011) (citing White, 699 So. 2d at 1081)).
32 Rec. Doc. 12-1 at pp. 1, 15.
33 Rec. Doc. 12-4.
34 Rec. Doc. 12-5.
35 Rec. Doc. 12-6.
last one as a warning sign but stepping around it.36 Thus, Defendants assert Plaintiff
cannot establish her heavy burden under La. R.S. 9:2800.6(B) as she cannot show that
the allegedly wet floor represented an unreasonably dangerous condition or that
RaceTrac failed to exercise reasonable care when it placed the signage after mopping.37
Based on a review of the record, the following facts are deemed as uncontroverted,
unless otherwise indicated.38
This litigation arises out of a slip and fall at the RaceTrac store at 8940 Greenwell
Springs Road in Baton Rouge on August 15, 2023.39 Plaintiff lost her footing while walking
around a “wet floor” sign that she had recently seen.40 The store video shows Plaintiff,
36 Rec. Doc. 12-1 at p. 1.
37 Id. at p. 15.
38 Plaintiff states the basic facts are not disputed. Rec. Doc. 13 at p. 1. Plaintiff admits most of the
Defendants’ Statement of Uncontested Facts. Rec. Doc. 13-1. Plaintiff also responds with her own
Statement of Uncontested Facts (Rec. Doc. 13-2 at pp. 1-4), some of which Defendants admit (Rec. Doc.
15 at pp. 1-4) and are included herein as undisputed.
39 Rec. Docs. 12-2 at ¶1 (citing Rec. Doc. 1-3 at ¶2); 13-1 at ¶1.
40 It is undisputed that Plaintiff slipped and fell. Rec. Docs. 12-2 at ¶¶1-2, 9; 13-1 at ¶2; 13-2 at ¶¶2-5.
Defendants submit Plaintiff’s testimony where she stated, “I see this wet floor sign, I do like this, and as I
walk around the wet floor sign, I lose my feet, and I slip and fall.” Rec. Doc. 12-2 at ¶2 (citing Rec. Doc. 12-
4 at p. 48). This is supported by the still images of the video surveillance. Rec. Doc. 12-4 at pp. 10. Plaintiff
makes a qualified denial as written based on the definition of “vicinity” and the timing of the fall after walking
past the sign. Rec. Doc. 13-1 at ¶2 (citing Rec. Doc. 12-4 at pp. 81-82). Plaintiff’s counsel objected to the
form of the question that Plaintiff slipped and fell generally in the “vicinity” of the “wet floor” sign. Id. Plaintiff
responded, “yes” to the question. Id. Plaintiff’s own Statement of Uncontested Facts establishes that she
approached the third “wet floor” sign, paused and walked around it, and slipped after getting a cup from the
beverage center. Rec. Doc. 13-2 at ¶¶1-5.
Review of the still images of the video surveillance shows Plaintiff paused at 8:36:55 a.m. to
observe the third “wet floor” sign in her path on the way to the beverage center. Rec. Doc. 12-4 at p. 106.
By 8:37:00 a.m., she had a cup in her hand, standing in front of the beverage center. Id. at p. 108. Two
seconds later at 8:37:02 a.m., she had turned back toward the that same third “wet floor” sign she paused
to observe. Id. at pp. 109, 110. And it is undisputed this sign is unobscured to anyone approaching the drink
machine in the path used by Plaintiff. Rec. Doc. 13-1 at ¶6. At 8:37:05 a.m., the video surveillance depicts
Plaintiff on the ground with a cup in her hand in front of the beverage center. Rec. Doc. 12-4 at p. 111.
Plaintiff’s testimony regarding the presence of the “wet floor” signs in the area where she fell is inconsistent
with that which is clearly evident in the still images. Still images of the video surveillance show Plaintiff
pointing to the third “wet floor” sign after falling. Rec. Doc. 12-4 at p. 113.
Additionally, Plaintiff admittedly testified she saw a puddle of water under the third “wet floor” sign.
Rec. Doc. 13-2 at pp. 67-69. She also testified that Exhibit 13 depicts her pointing to a wet spot essentially
between the two “wet floor” signs. Rec. Doc. 12-4 at p. 67. She later testified she saw water under the third
“wet floor” sign. Rec. Doc. 12-4 at pp. 76-77. The evidence and arguments relied on by Plaintiff are
insufficient to create a disputed issue of material fact for trial, as it does not contradict Defendants’ assertion.
Based on the record evidence, the Court deems this fact admitted.
who was pregnant at the time, walking into the store at 8:36 a.m., and walking past a
yellow “wet floor” sign near the front of the store and several feet to her left.41 She then
veered somewhat to her right, walking through a passageway between a large pizza
display on her left a display of hot dogs on her right, with another yellow sign directly in
front of Plaintiff, next to and near the far end of the hot dog stand.42 Plaintiff saw this
second sign but did not pause for it because she did not see any water near it.43
Plaintiff then veered to her left to go around a display of chips on her way to the
drink fountains to get a cup for her coffee ice.44 A third yellow sign is shown in front of
Plaintiff and in her path at the end of the display of chips.45 That sign is right in the path
of anyone approaching the drink machine from that side of the chips display, it is
unobscured, and there is a mop and bucket a few feet behind and to the left of the sign.46
Plaintiff specifically paused to look at this sign because she could see some accumulated
water under it, though she denied seeing the mop bucket.47 Plaintiff testified the
accumulated water she saw was the size of a “small plate.”48 She knew that the sign was
41 Rec. Docs.12-2 at ¶3 (citing Rec. Doc. 12-4 at pp. 50-51, 72, 12-4 at p. 102); 13-1 at ¶3.
42 Rec. Docs. 12-2 at ¶4 (citing Rec. Doc. 12-4 at pp. 55-57, 59-60, 72-74, 77, 12-4 at pp. 104-05); 13-1 at
¶4.
43 Rec. Docs. 12-2 at ¶5 (citing Rec. Doc. 12-4 at pp. 60, 73); 13-1 at ¶¶1,5. Plaintiff submits in her own
alleged uncontested facts that she entered the store and passed two “wet floor” signs with no adjacent
water on the floor. Rec. Doc. 13-2 at ¶1 (citing Rec. Doc. 12-4 at p. 58, 102, 105). Defendants deny this
fact as written, admitting that Plaintiff testified she did not see water next to the first two signs. Rec. Doc.
15 at ¶1 (citing Rec. Doc. 12-4 at p. 58). The Court finds it is undisputed, however, that the Plaintiff did not
see water next to the first two signs upon entering the store. Rec. Docs. 12-2 at ¶¶3-7; 13-1 at ¶¶3-7; 13-2
at ¶1; 15 at ¶1; 12-4 at pp. 50-61.
44 Rec. Docs. 12-2 at ¶6 (citing Rec. Doc. 12-4 at pp. 48, 60); 13-1 at ¶6.
45 Rec. Docs. 12-2 at ¶6 (citing Rec. Doc. 12-4 at pp. 57-61, 73, 77, 78, 82, 12-4 at p. 106); 13-1 at ¶6.
46 Rec. Docs. 12-2 at ¶6; 13-1 at ¶6.
47 Rec. Docs. 12-2 at ¶7 (citing Rec. Doc. 12-4 at pp. 61, 74); 13-1 at ¶7.
48 Rec. Doc. 13-2 at ¶4 (citing Rec. Doc. 12-4 at p. 69). Defendant does not dispute that this is Plaintiff’s
testimony. Rec. Doc. 15 at ¶4 (citing Rec. Doc. 12-4 at p. 69).
a warning about wet floors.49 Plaintiff walked around the third “wet floor” sign after
pausing.50
Within the next five seconds, Plaintiff had walked past that third sign to the fountain
area and grabbed a cup.51 The puddled water was between the sign near the hot dog
stand and the sign behind the chips.52 Three seconds later, she had turned back around
and had fallen near the drink machines.53 Plaintiff appears to have fallen within feet of
that third sign was that she had encountered twice within the previous few seconds.”54
49 Rec. Docs. 12-2 at ¶7 (citing Rec. Doc. 12-4 at p. 54); 13-1 at ¶7.
50 Rec. Docs. 13-2 at ¶¶2-3 (citing Rec. Docs. 12-4 at pp. 60, 106); 13-1 at ¶8; 15 at ¶¶2-3.
51 Rec. Docs. 12-2 at ¶8 (citing Rec. Doc. 12-4 at pp. 62-65, 12-4 at p. 109); 13-1 at ¶8. Plaintiff makes a
qualified denial as written but does not point to any record evidence refuting this fact, which is supported
by the still images of the video surveillance. Rec. Doc. 13-1 at ¶8, n. 2. Thus, the Court deems this fact
admitted.
52 Rec. Docs. 12-2 at ¶8 (citing Rec. Doc. 12-4 at pp. 67-68); 13-1 at ¶8. Although Plaintiff admits that there
was water under the “wet floor” sign (Rec. Doc. 13-1 at ¶8, n.2), she responds with a qualified denial as
written, arguing that she also identified the reflection of water on the floor on the beverage aisle in Exhibits
10 and 11, which she argues is a “different aisle.” Rec. Doc. 13-1 at ¶8, n. 2 (citing Rec. Doc. 12-4 at pp.
79-80, 111-12). Plaintiff further argues that Wilson testified that patrons had to walk through the area of the
leak to get to the beverage center. Id. (citing Rec. Doc. 12-5 at p. 24). The cited testimony reflects Wilson
responded “Yes, sir” when asked to confirm that his testimony is that “this piece of equipment was leaking
in an area that peope[sic] had to traverse on a regular basis to get to the fountain/soda area of the store[.]”
Rec. Doc. 12-5 at p. 24. However, Defendants undisputed fact, and supporting evidence, relates to the
location of the puddled water relative to the third “wet floor” sign, as evidenced by still images of Plaintiff
pointing to the third “wet floor” sign after falling. Rec. Doc. 12-4 at p. 113. Additionally, Plaintiff admittedly
testified she saw a puddle of water under the third “wet floor” sign. Rec. Doc. 13-2 at pp. 67-69. She also
testified that Exhibit 13 depicts her pointing to a wet spot essentially between the two “wet floor” signs. Rec.
Doc. 12-4 at p. 67. She later testified she saw water under the third “wet floor” sign. Rec. Doc. 12-4 at pp.
76-77. However, Plaintiff does not cite to record evidence controverting Defendants’ assertion in the context
in which it is submitted. Thus, the Court deems this supported fact as admitted relative to the third “wet
floor” sign.
53 Rec. Doc. 12-2 at ¶9 (citing Rec. Doc. 12-4 at pp. 63-64, 66, 77, 79, 81, 111). Plaintiff asserts a qualified
denial as written but does not address this fact. Thus, the Court deems this fact, supported by video images,
as admitted.
54 Id. Plaintiff makes a qualified denial as written, disputing Defendants’ representation that Plaintiff fell “five
feet or so” from the original “wet floor” sign. Rec. Doc. 13-1 at ¶9. Plaintiff points to Exhibits 5 and 10 of her
deposition, arguing that Exhibit 5 shows the “wet floor” sign at least four, perhaps five, 12-inch by 12-inch
tiles away from the beverage center. Id. (citing Rec. Doc. 12-4 at pp. 106, 111). Plaintiff argues she slipped
three to four, 12-inch by 12-inch tiles, into the beverage center rendering the fall seven to nine feet from the
“wet floor” sign. Id. However, in Plaintiff’s Opposition, she asserts that a review of Exhibit 5 and Exhibit 10
show she fell between five to eight feet from the “wet floor” sign. Rec. Doc. 13 at p. 3, n. 21. Plaintiff points
to no record evidence controverting the undisputed facts other than to refute the exact number of feet of
Plaintiff’s fall from the third “wet floor” sign depicted in Exhibit 5. Nevertheless, as noted, the parties’
contentions and record evidence indicate the fall to be anywhere from five feet to nine feet from the third
“wet floor” sign. No record evidence cited establishes the exact number of feet. However, the still images
The uncontested facts further show that Wilson is a former shift manager for
RaceTrac.55 Wilson testified that the “grab & go” refrigeration unit was actively leaking at
the time of the subject accident.56 Wilson testified that the leak was caused by
condensation.57 Wilson testified that RaceTrac “had constant problems with this machine
leaking.”58 Wilson testified that the leak had been ongoing “for a couple of weeks. Maybe
like a month or so.”59 The signs and mop bucket were out because of a leaking refrigerator
near the pizza display that was awaiting repairs.60 During the time leading up to Plaintiff’s
fall, the store followed its procedure by mopping the area and placing yellow “wet floor”
caution signs where the leak was.61 There were three routes to the beverage center.62
Wilson testified that it was common for people to walk through the area of the leak
and, in his experience, customers sometimes track liquid into the area of the beverage
center.63 Wilson testified that there were multiple near miss slip events in the area of the
support that Plaintiff fell within a matter of feet from the third sign. Thus, these factual assertions are deemed
admitted for purposes of this motion, except as to the exact distance of the fall from the third “wet floor”
sign.
55 Rec. Docs. 13-2 at ¶5 (citing Rec. Doc. 12--5 at pp. 8-9); 15 at ¶5.
56 Rec. Docs. 13-2 at ¶6 (citing Rec. Doc. 12-5 at p. 20); 15 at ¶6.
57 Rec. Docs. 13-2 at ¶7 (citing Rec. Doc. 12-5 at p. 19); 15 at ¶7.
58 Rec. Docs. 13-2 at ¶8 (citing Rec. Doc. 12-5 at p. 19); 15 at ¶8.
59 Rec. Docs. 13-2 at ¶9 (citing Rec. Doc. 12-5 at p. 20); 15 at ¶9.
60 Rec. Docs. 12-2 at ¶10 (citing Rec. Doc.12-5 at pp. 19-21); 13-1 at ¶10.
61 Rec. Docs. 12-2 at ¶11 (citing Rec. Doc. 12-5 at p. 55); 13-1 at ¶11.
62 Rec. Docs. 13-2 at ¶13 (citing Rec. Doc. 12-5 at p. 36); 15 at ¶13. Plaintiffs submit that it is undisputed
that, “this ongoing leak was located in the most direct path for patrons to traverse to reach the beverage
center of the store.” Rec. Doc. 13-2 at ¶12 (citing Rec. Doc. 12-5 at p. 24). Defendants qualify their
response stating that the “most direct path” to the beverage center area depends on one’s point of
origination. Rec. Doc. 15 at ¶12 (citing Rec. Doc. 12-2). A review of the evidence does not support Plaintiff’s
characterization of the testimony and evidence as the leak being in the “most direct path” of any patrons
traversing to the beverage area. Thus, the Court deems this a disputed fact.
63 Rec. Docs. 13-2 at ¶15 (citing Rec. Doc. 12-5 at p. 35); 15 at ¶15. Plaintiffs submit Wilson’s statement
as an uncontested fact that it “was common for people to walk through the area of the leak and track water
into the beverage center.” Rec. Doc. 13-2 at ¶15. However, Defendants qualify their response, arguing that
Wilson did not testify that people “tracked water” into the beverage area, though she did testify that they
walked through the leak area. Rec. Doc. 15 at ¶15. The testimony referenced by Plaintiff states that Wilson
agreed that it was common for people to walk through the area where the leak was occurring to get to the
beverage center, and that, he agreed in his experience that customers sometimes track additional liquid
into the area. Rec. Doc. 12-5 at p. 35. Thus, the Court deems this testimony as undisputed.
water leak prior to Plaintiff’s fall.64 She also testified that the near miss slip events
occurred despite the store policy of mopping the ongoing spill and putting out “wet floor”
signs.65 The “grab and go” refrigeration unit was not taken out of service.”66 RaceTrac
employees were instructed to put out wet floor signs and mop.67 RaceTrac did not block
the aisle where the leak was located.68
The parties focus their arguments on the first and third elements of La. R.S.
9:2800.6(B).69 Thus, the only issues before the Court are whether Plaintiff encountered
64 Rec. Doc. 13-2 at ¶16 (citing Rec. Doc. 12-5 at pp. 51-52); 15 at ¶16. Defendants qualify their response,
admitting that Wilson testified to that, but RaceTrac cannot confirm that “near miss slip events” occurred.
Rec. Doc. 15 at ¶16.
65 Rec. Doc. 13-2 at ¶17 (citing Rec. Doc. 12-5 at p. 52); 15 at ¶17. Defendants qualify their response on
the basis that they cannot confirm that “near miss” slip events occurred. Rec. Doc. 15 at ¶17. However,
Defendants do not dispute that this is Wilson’s testimony.
66 Rec. Docs. 13-2 at ¶10 (citing Rec. Doc. 12-5 at pp. 21-22); 15 at ¶10. Plaintiff submits it is undisputed
that, “Despite the ongoing leak, the ‘grab and go’ refrigeration unit was not taken out of service.” Rec. Doc.
13-2 at ¶10. Defendants qualify their response as to the fact that it is uncontested that the leak was
“ongoing,” as RaceTrac disagrees with Wilson’s characterization of the leak in his testimony. Rec. Doc. 15
at ¶10. Defendant does not address the asserted fact that the unit was not taken out of service; thus, to
that extent this fact is deemed admitted. However, Defendants point to Romeo’s affidavit attesting that the
condensation issue was reported on July 19, 2023 and fixed the next day and another issue was reported
on August 14, 2023 and fixed the following day – the day of Plaintiff’s accident. Id. (citing Rec. Doc. 12-6 at
¶¶3, 4). Because the “ongoing” nature of the leak is disputed by record evidence, the Court does not deem
admitted the fact as written.
67 Rec. Docs. 13-2 at ¶11 (citing Rec. Doc. 12-5 at p. 22); 15 at ¶11. Plaintiff submits that it is undisputed
that, “Instead, RaceTrac employees were instructed to put out wet floor signs and mop.” Rec. Doc. 13-2 at
¶11. Defendants qualify their response, presumably taking issue with Plaintiff’s insertion of “[i]nstead,” and
point to Romeo’s affidavit that, in response to the issue, RaceTrac also placed a service call and had the
problem repaired. Rec. Doc. 15 at ¶11 (citing Rec. Doc. 12-6 at ¶¶3-4). This evidence, along with Wilson’s
testimony, supports Defendants’ contention. Thus, the Court deems admitted only the fact that RaceTrac
employees were instructed to put out wet floor signs and mop.
68 Rec. Docs. 13-2 at ¶14 (citing Rec. Doc. 12-5 at pp. 36-37); 15 at ¶14. Plaintiff submits it is undisputed
that, “RaceTrac did not block off aisle wherein the ongoing leak was located.” Rec. Doc. 13-2 at ¶14.
However, for the same reason previously stated, the Court does not admit the fact that the leak was
“ongoing.” However, Defendants do not point to record evidence disputing that RaceTrac did not block the
aisle where the leak was located. Thus, the Court deems this portion of the fact admitted.
69 Rec. Docs. 12-1 at pp. 8-15; 13 at pp. 7-13. The parties do not address the second element as to whether
RaceTrac either created or had actual or constructive notice of the condition which allegedly caused the
damage, prior to the occurrence. Presumably, this is because it is undisputed that Defendants placed “wet
floor” signs as to the condition of the floor, pending repair of a leaking cooler. Although neither party directly
briefs the second element, Plaintiff conflates facts pertaining to, and which would implicate, the second
element of notice with the first and third elements in arguing that disputed facts remain at issue. Rec. Doc.
13 at pp. 6-13.
an unreasonably dangerous condition and whether RaceTrac exercised reasonable
care.70
1. Whether the Wet Floor Presented an Unreasonable Risk of Harm
Defendants argue that Plaintiff did not encounter an unreasonably dangerous
condition because clear video evidence and Plaintiff’s testimony show that she observed
and walked around a yellow “wet floor” sign a few feet from where she fell.71 Defendants
cite numerous cases granting summary judgment because of a plainly visible “wet floor”
sign in the vicinity, especially when confirmed by video evidence.72 Thus, Defendants
assert that the wet floor did not create an unreasonable risk of harm, the risk was
reasonably foreseeable, and RaceTrac exercised reasonable care.73
Plaintiff admits that jurisprudence supports Defendants’ position.74 However, she
contends the facts of each case cited by Defendant are distinguishable from this case
“based on the immediacy of the hazard involved.”75 Plaintiff contends that each decision
includes “active involvement” by a defendant, such as “active mopping,” in creating a
temporary hazard or addressing a temporary hazard.76 Plaintiff contends that here
RaceTrac not only had actual knowledge of an “ongoing” leak, but created an additional
hazard by keeping the cooler in service and leaving “the location” of the leak open for
patrons to traverse.77 Plaintiff argues that the continued foot traffic resulted in water from
70 Rec. Doc. 12-1 at pp. 8-15.
71 Id. at p. 8.
72 Id. at pp. 8-10.
73 Id. at p. 8 (citing Perrin v. Ochsner Baptist Med. Ctr., LLC, No. 2019-CA-0265 (La. App. 4 Cir. 8/7/19),
2019 WL 3719546, at *5).
74 Rec. Doc. 13 at p. 5.
75 Id. at pp. 5-6.
76 Id. at pp. 6,10.
77 Id. at p. 6.
the leak being tracked down a separate aisle where Plaintiff fell.78 She contends that the
location where she fell was not only removed from the visible hazard that she avoided,
but also of a different type than the puddle of water marked by the “wet floor” sign.79 Thus,
Plaintiff argues genuine issues of material fact preclude summary judgment as to whether
the condition was an “unreasonably dangerous condition.”80
The first element under La. R.S. 9:2800.6 requires a plaintiff to establish a
condition that presented an unreasonable risk of harm.81 The mere fact that an accident
occurred does not establish that a condition was unreasonably dangerous.82 To determine
whether a condition presents an unreasonable risk of harm, courts “must decide whether
the social value and utility of the hazard outweigh, and thus justify, its potential harm to
others[.]”83 In making this determination, Louisiana courts apply a risk-utility balancing
test consisting of four factors: “(1) the utility of the complained-of condition; (2) the
likelihood and magnitude of harm, including the obviousness and apparentness of the
condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities
in terms of social utility or whether the activities were dangerous by nature.”84 Although
the unreasonable risk of harm determination is “a matter wed to the facts,” a court “may
78 Id.
79 Id. at p. 7.
80 Id. at p. 10.
81 La. R.S. 9:2800.6(B)(1).
82 Griffin v. Wal-Mart Louisiana, L.L.C., No. CIV.A. 14-110-JJB, 2015 WL 4162905, at *4 (M.D. La. July 9,
2015) (citing Durmon v. Billings, 873 So.2d 872, 876 (2nd Cir. 2004).
83 Latour v. Steamboats, LLC, 2023-00027 (La. 10/20/23), 371 So. 3d 1026, 1035 (quoting Reed v. Wal-
Mart Stores, Inc., 97-1174 (La. 3/4/98), 708 So.2d 362, 365).
84 Latour, 371 So. 3d at 1036 (citing Farrell v. Circle K Stores, Inc., 2022-00849 (La. 3/17/23), 359 So. 3d
467, 474).
determine by summary judgment that a defect is open and obvious and, therefore, does
not present an unreasonable risk of harm.”85
The Court considers each factor in turn.
a. Utility of the Complained-Of Condition
Here, it is undisputed that the complained-of-condition is the allegedly wet floor
due to a leaking “grab & go” cooler. Defendants assert that, although this case turns
primarily on the second factor, the other three factors also militate against finding an
85 See Temple v. Morgan, 2015-1159, pp. 11–13 (La. App. 1 Cir. 6/3/16), 196 So. 3d 71, 77–79, writ denied,
2016-1255 (La. 10/28/16), 208 So. 3d 889; see also Butler v. Int'l Paper Co., 636 F. App'x. 216, 221 (5th
Cir. 2016), as revised (Jan. 15, 2016) (“[T]he Louisiana Supreme Court has instructed that one factor may
often be determinative under the risk-utility balancing test.”); Rayburn v. Regions Fin. Corp., No. CV 22-
484-JWD-RLB, 2025 WL 630654, at *8 (M.D. La. Feb. 26, 2025) (“Whether a condition is not an
unreasonable risk of harm by virtue of being open and obvious is a proper question for summary
judgment.”).
In Temple, the Louisiana Court of Appeal for the First Circuit examined the appropriateness of
summary judgment on the issue of “open and obvious,” observing that the Louisiana Supreme Court
“clarified the matter in a series of opinions, beginning with Bufkin, where the court reversed the district court
and granted summary judgment in favor of the defendant. Temple, 196 So. 3d at 78 (citing Bufkin v. Felipe's
La., LLC, 14-0288 (La. 10/15/14), 171 So.3d 851, 856); see also Longino v. City of Oakdale, 2021-296 (La.
App. 3 Cir. 11/2/21), 332 So. 3d 753, 755-56 (stating the Louisiana Supreme Court clarified prior
jurisprudence and clearly stated that summary judgment should not be precluded in cases where the
plaintiff is unable to produce factual support for her claim that a complained-of-condition is unreasonably
dangerous).
In Bufkin, the Louisiana Supreme Court elucidated that its opinion in Broussard “should not be
construed as precluding summary judgment when no legal duty is owed because the condition encountered
is obvious and apparent to all and not unreasonably dangerous.” Bufkin, 171 So. 3d at 859, n. 3 (discussing
Broussard v. State ex rel. Office of State Bldgs., 12-1238 (La. 4/5/13), 113 So. 3d 175).
In Allen v. Lockwood, the Louisiana Supreme Court further explained that its comments under
“Broussard did not involve summary judgment practice nor did [its] discussion infer that issues of this nature
must be determined by a trial. Any reading of Broussard interpreting it as a limit on summary judgment
practice involving issues of unreasonable risk of harm is a misinterpretation of the Broussard case.” 14-
1724 (La. 2/13/15), 156 So. 3d 650, 652-53
Thus, “a court may determine by summary judgment that a defect is open and obvious and,
therefore, does not present an unreasonable risk of harm.” Temple, 196 So. 3d at 78. The Louisiana
Supreme Court further clarified its statements in Farrell v. Circle K Stores, Inc., stating that “whether a
condition is open and obvious is embraced within the breach of duty element of the duty/risk analysis and
is not a jurisprudential doctrine barring recovery, but only a factor of the risk/utility balancing test.
Specifically, it falls within the second factor which considers the likelihood and magnitude of harm, and it is
not a consideration for determining the legal question of the existence of a duty.” 22-00849 (La. 3/17/23),
359 So. 3d 467, 478. If application of the risk/utility balancing results in a determination that the hazard is
not an unreasonably dangerous condition, a defendant is not liable because there was no duty breached.
Id. Summary judgment, based on the absence of liability, may be granted upon a finding that reasonable
minds could only agree that the condition was not unreasonably dangerous; therefore, the defendant did
not breach the duty owed. Id.
unreasonably dangerous condition.86 Defendants contend the “grab & go” cooler at issue
provided chilled food options for patrons, as well as profit to the store, which serves some
utility and weighs in their favor.87
Plaintiff admits the “grab and go” cooler provided chilled food options for patrons
of the store – the utility of which is to “keep perishable and consumable items fresh and
convenient.”88 Although it points to the third factor, Plaintiff reasons here that the store
had other sources of income, such as dry goods, beverages, and vehicle fuel, therefore
turning off the leaking machine would play only a small role in store profit.89 Plaintiff
contends that RaceTrac’s decision to leave the leaking cooler, with an ongoing leak in an
aisle of the store, serves minimal utility to patrons when contaminated by water.90
Here, it is undisputed that the “grab & go” cooler and beverage aisle have utility
because it allows (even if leaking) a patron to utilize convenient “grab & go” options while
providing a profit to the RaceTrac. Moreover, the beverage aisle, to which there are
undisputably three route options, has utility in allowing patrons to continue to traverse the
beverage area which was still functional and part of providing profit to the store. Therefore,
this factor weighs in favor of Defendants.
b. Likelihood and Magnitude of Harm
“The likelihood of the harm factor asks the degree to which the condition will likely
cause harm. If it is likely to cause harm, that weighs in favor of finding it unreasonably
dangerous. If it is unlikely to cause harm, that weighs in favor of it not being unreasonably
86 Rec. Doc. 14 at p. 5. Defendants did not cite the specific risk-utility analysis in their original memorandum
because numerous courts have found, as a matter of law, that an open and obvious condition cannot be
unreasonably dangerous. Id. at p. 3. However, Defendants analyzed the factors in their Reply. Id.
87 Id.
88 Rec. Doc. 13 at p. 8.
89 Id.
90 Id.
dangerous.”91 In evaluating this factor, “relevant considerations include the size, context,
and location of the condition, as well as the accident history.”92 Additionally, the Louisiana
Supreme Court recently clarified that the notion of “open and obvious risks” is included in
this part of the risk-utility balancing test.93 That is, “[t]he more obvious the risk, the less
likely it is to cause injury because it will be avoided.”94
Defendants essentially argue that they warned of the condition alleged to have
caused Plaintiff’s fall with three warning signs, as shown by video evidence; thus, making
the condition “open and obvious.”95 Defendants note that the large number of cases
granting summary judgment in wet floor cases, when appropriate signage is used,
demonstrates that there is minimal risk that a reasonably cautious person would slip on
a wet floor just a few feet from a warning sign.96 Defendants maintain it was unreasonable
for Plaintiff to assume, after walking past three “wet floor” signs, the third of which had an
“open and obvious” pool of water underneath, that the sign pertained only to the visible
pooling of water she immediately observed under it and not in the general vicinity.97 Given
the facts, Defendants state that the risk of encountering wetness a few feet away would
be obvious to a prudent person acting with due care, even without more visible pooling
there.98 Defendants further note that Plaintiff cites no supporting authority as to their
91 Farrell, 359 So. 3d at 474.
92 Latour, 371 So. 3d at 1036.
93 Farrell, 359 So. 3d at 478.
94 Id. at 474. The Farrell court also clarified that “it is inaccurate to profess that a defendant generally does
not have a duty to protect against an open an obvious condition.” Id. at 478. Therefore, the fact that a
condition was open and obvious does not operate as a bar to recovery.
95 Rec. Doc. 14 at pp. 3-4.
96 Id. at p. 4.
97 Id.
98 Id. at p. 5.
contention that an unobstructed “wet floor” sign a few feet from an alleged wet spot is
insufficient to reasonably warn the Plaintiff.99
Plaintiff argues the hazard was not “open and obvious.”100 While it is undisputed
there were three routes to the beverage center, Plaintiff argues that, even though the area
of the leak could have been blocked off to prevent tracking of water into the beverage
center, Wilson’s testimony established that it was the most direct route.101 Plaintiff points
to Wilson’s testimony that store management chose to keep this direct route open.102
Wilson testified the “leak had been occurring for a period of weeks.103 Plaintiff contends
this was long enough for the store to attempt other methods to keep the cooler in use.104
Plaintiff notes Wilson testified that the “regular process” to deal with the ongoing leak was
“[t]o just clean it up as the water comes out. Sometimes we would put, like little towels
down behind the machine to try to stop it. But it would just leak through and leave a big
old mess. So we just pick up the towels, and just mop as often as possible.”105 Plaintiff
argues that because RaceTrac permitted the ongoing leak to remain present in a highly
traversed area, the likelihood and magnitude of the harm is “undeniable.”106
Plaintiff admits it is undisputed that she passed two “wet floor” signs where she
testified there was no visible water hazard, then encountered a third “wet floor” sign where
there was an “open and obvious” pool of water.107 Plaintiff testified the water “underneath”
99 Id.
100 Rec. Doc. 13 at pp. 8-9.
101 Id. at p. 9 (citing Rec. Doc. 12-5 at p. 29).
102 Id.
103 Id. (citing Rec. Doc. 12-5 at p. 29).
104 Id.
105 Id. (citing Rec. Doc. 12-5 at pp. 29-30).
106 Id.
107 Id.
the third sign was the size of a “small plate.”108 Plaintiff argues she then turned and walked
down the beverage aisle and slipped on what the jury can conclude “is water tracked from
the ‘open and obvious’ hazard,” created by RaceTrac’s refusal to shut down the leaking
cooler.109 Thus, Plaintiff posits that a genuine issue of material fact remains “relative to its
‘open and obvious’ nature.”110
Plaintiff relies on Morales v. McPherson Co.,111 wherein the United States District
Court for the Eastern District of Louisiana denied summary judgment after performing
risk/utility analysis.112 There, the plaintiff was a store employee who slipped while
attempting to clean an oil spill.113 Plaintiff here argues that, just like the “actively
spreading” oil in Morales, Defendants here allowed an “ongoing” leak to continue
spreading.114 Plaintiff seeks to apply the Morales case to the risk/utility analysis to present
a genuine issue of fact that RaceTrac permitted the ongoing leak to remain in a highly
traversed are; thus, was it not “open and obvious.”115
Plaintiff however conflates assertions of facts pertaining to the element of
unreasonable risk of harm with those pertaining to the second element of notice under
La. R.S. 9:2800.6.116 Morales however does not analyze the facts under the elements of
La. R.S. 9:2800.6, although it does apply a risk/utility analysis. Additionally, unlike the oil
in Morales that was “not meant to be there” and “lacked social utility,”117 there is social
108 Id.
109 Id. at p. 10.
110 Id.
111 22-3376 (E.D. La. May 8, 2023), 2023 WL 3303451.
112 Rec. Doc. 13 at pp. 7-9.
113 Id.
114 Id. at p. 8 (citing Morales, 2023 WL 3303451, at *7).
115 Id. at pp. 8-9.
116 Id. at pp. 7-10.
117 Morales, 2023 WL 3303451, at *3.
utility in keeping the functional but leaking cooler in operation, while awaiting repair of the
leak, for patrons’ use and the RaceTrac’s profit, which Plaintiff here admits.118
Compounding on her conflation of the second element of notice with the first
element, Plaintiff contends RaceTrac’s actual knowledge of an “ongoing” leak “created an
additional hazard” in keeping the cooler in service and leaving the location open to
patrons.119 However, as noted herein, facts as they pertain to the second element were
not disputed or briefed before the Court. Additionally, the existence of the leaking cooler
in not disputed and while Plaintiff contends the evidence reflects an “ongoing” nature of
the leak, Wilson’s testimony establishes the store repaired the cooler when the leaks
occurred, and implemented store policy of mopping and placing wet-floor warning signs,
which Plaintiff also does not dispute.
The Court finds that the second factor under the risk/utility analysis of the first
element under La. R.S. 9:2800.6(B) is dispositive here. “Courts have refused to hold
merchants liable for slip and fall incidents in which a patron testifies to seeing a wet floor
or noticing a merchant's warning signs before proceeding to walk in a slippery area.”120 If
a risk of harm is obvious, universally known, and easily avoidable, it is not unreasonable,
118 Rec. Doc. 13 at p. 8.
119 Id. at p. 6.
120 Domingue v. TA Operating, LLC, No. CV 21-606-SDD-RLB, 2023 WL 174967, at *7 (M.D. La. Jan. 12,
2023) (citing Lee v. Ryan's Family Steak Houses, Inc., 2006-1400 (La. App. 1 Cir. 5/4/07), 960 So.2d 1042
(holding factfinder's conclusions as to liability in slip and fall case were manifestly erroneous, as patron
testified that she noticed the floor was slippery and wet and walked within a foot or two of a three-foot-tall
warning cone placed on the wet floor by merchant.); Rowell v. Hollywood Casino Shreveport, 43,306 (La.
App. 2 Cir. 9/24/08), 996 So.2d 476, 479 (“Most significantly, while [the plaintiff] may take issue with the
exact location of the wet floor cone, she admits observing the wet floor warning upon entering the women's
restroom.”)
and the defendant has no duty to warn or protect against it.121 Thus, “an open and obvious
condition cannot be unreasonably dangerous as a matter of law.”122
Moreover, “the Louisiana Supreme Court has relied upon [a] plaintiff's testimony or
photographs of [a] scene to establish that a condition is “open and obvious” in several
different cases.”123 In Butler v. Int’l Paper Co., the Fifth Circuit, observed that the Louisiana
Supreme Court “recently clarified that the application of the risk-utility balancing test is
not necessary at the summary judgment stage[,]” where the condition is “open and
obvious” to anyone who may encounter it.124 “[Louisiana] jurisprudence has held that
where caution signs are set up within a clear line of sight of visitors, there is no genuine
issue of material fact that a wet floor does not create an unreasonable risk of harm.”125
“[T]here is no requirement, jurisprudential or otherwise, that a merchant must cardon off
121 Id. (citing Buchanan v. Wal-Mart Stores, Inc., 834 F. App’x. 58 (5th Cir. 2020) (citing Smith v. Winn Dixie
Montgomery, LLC, CIV.A. 13-194-SDD, 2014 WL 2740405, at *3 (M.D. La. June 17, 2014)); see also
Durman v. Billings, 38,514 (La. App. 2 Cir. 3/12/04), 873 So.2d 872; Hayes v. Entergy Corp., 37,190 (La.
App. 2 Cir. 6/25/03), 850 So.2d 916.
122 Moore v. Fam. Dollar Stores, Inc., No. 1:21-CV-03764, 2023 WL 3662706, at *3 (W.D. La. Apr. 17, 2023)
(citing Massery v. Rouse's Enter., L.L.C., 16-0121, p. 6 (La. App. 4 Cir. 6/29/16), 196 So. 3d 757, 762 (“[I]t
is well settled that a condition which is open and obvious is not unreasonably dangerous, and a merchant
has no duty to protect against it.”)).
123 Butler, 636 F. App'x at 221(citing Allen, 156 So.3d at 653; Bufkin, 171 So.3d at 856; Dauzat v. Curnest
Guillot Logging Inc., 2008-0528, p. 6 (La. 12/2/08), 995 So.2d 1184, 1187).
124 Butler, 636 F. App'x at 219 (citing Allen, 156 So. 3d at 653). “Indeed, the Louisiana Supreme Court has
concluded in several cases that the balancing “revolve[d] around the second factor, namely, the substantial
likelihood and magnitude of harm from the [defect], with consideration to whether the [defect] was apparent
or obvious.” Id. at 221 (citing Dauzat, 995 So.2d at 1187; Bufkin, 171 So.3d at 856–59) (resting decision to
grant summary judgment on second factor); Pryor v. Iberia Par. Sch. Bd., 10-1683, p. 6 (La. 3/15/11), 60
So.3d 594, 598 (per curiam) (same)); see also Thibodeaux v. Home Depot USA, Inc., 816 F. App'x 988,
990 (5th Cir. 2020).
125 Perrin, 364 So. 3d at 15 (citing Schroeder v. Hanover Ins., Co., 2018-0294, p. 7 (La. App. 3 Cir. 9/19/18),
255 So.3d 1123, 1127 (citing Melancon, 59 So.3d at 516); Schroeder v. Walgreens Family of Cos., 2014-
0322, p. 6 (La. App. 4 Cir. 9/24/14), 150 So.3d 926, 929, rev'd on other grounds, 2014-2238 (La. 1/23/15),
159 So.3d 449 (“when proper signage is used to warn patrons of the floor's condition, a wet floor does not
create an unreasonable risk of harm”) (citing Rowell, 996 So.2d at 479); see also Migliore v. Ambassador
P’ship., LLC, 22-599 (La. App. 5 Cir. 12/1/23), 376 So.3d 1178, 1182 (citing cases).
an area of the floor after mopping it.”126 Plaintiff offers no other caselaw to support her
assertions.
Here, the undisputed material facts indicate that the condition of the wet floor would
have been obvious to a reasonable person traversing the area.127 The undisputed record
evidence shows that RaceTrac warned Plaintiff of the condition of the floor from the
moment she walked in the door. As clearly depicted from images of video surveillance,128
Plaintiff admittedly encountered three “wet floor” signs, with the last one being in her path
at the end of the chip display in her path to the beverage center, unobscured and in the
path of anyone approaching the drink machine from that side of the chip display, with a
mop and bucket a few feet behind and to the left of it.129 It is undisputed that Plaintiff
paused to look at the sign, saw accumulated water under it, and knew the sign was a
warning about wet floors.130 The irrefutable images show the sign was in her path,
seconds prior to her falling and within feet of the fall.131 Although she points to Wilson’s
testimony that the leak had been ongoing “for a couple of weeks. Maybe a month or
so[,]”132 Plaintiff does not dispute that the store followed its procedure by mopping the
126 Migliore, 376 So.3d at 1182.
127 See Bufkin, 171 So.3d at 855 (observing that “a pedestrian has a duty to see that which should be seen
and is bound to observe [her] course to see if [her] pathway is clear”).
128 When considering claims arising under the Merchant Liability Act on a motion for summary judgment,
“[t]he Fifth Circuit has indicated that courts should give greater weight . . . to facts evidenced from video
recordings taken at the scene.” See Smith v. Circle K Stores, Inc., 2021 WL 4853846, at *5 (W.D. La. Oct.
18, 2021) (citing Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011)).
129 Rec. Docs. 12-2; 13-1; 13-2.
130 Id.
131 Rec. Doc. 12-4 at pp. 105-111.
132 Rec. Doc. 13-2 at p. 2. Wilson testified that the leak was a slow drip that “would go into that pathway of
where the chips and the fountain area is.” Rec. Doc. 12-5 at pp. 23-24. Wilson testified that that customers
would still bypass the sign. Id. at p. 24. Wilson testified it was an “active leak,” and that the store would
clean the area and put down wet floor signs while awaiting repairs. Id. at pp. 25-27. Wilson testified that
multiple repair tickets had been put in for the leaking equipment, which leaked often, maybe over ten times.
Id. at pp. 27-28. Wilson further testified that when they came in to repair the cooler, it would not continue
to leak immediately, but would slowly start back leaking a “real, real slow leak.” Id. at p. 46. Wilson also
area and placing the “wet floor” signs where the leak was, while the leaking refrigerator
was awaiting repairs.133
Thus, the Court finds that the undisputed evidence shows no genuine issue of
material fact as to whether the condition was open and obvious and that the risk of harm
was reasonably foreseeable.134 Because the risk of harm was open and obvious,
RaceTrac had no duty to protect against it.135 Thus, Plaintiff’s failure to establish the first
element under La. R.S. 2800.6(B)(1) is fatal to this cause of action.136
In finding the condition did not present an unreasonable risk of harm to Plaintiff,
the remainder of the risk/utility analysis bears little weight. Nevertheless, the Court
considers the parties’ assertions.
c. Cost of Preventing the Harm
Defendants argue this factor weighs against finding an unreasonable risk of harm
because, as Plaintiff admits, her preferred remedy of taking the cooler out of service or
blocking customers from the area would “[c]learly” impose “some cost.”137 Defendants
state that Racetrac was already committed to incurring the cost to fix the problem as it is
undisputed that it had requested service for the machine by the time Plaintiff fell.138
testified that Plaintiff came into the store on a regular basis to get ice from the beverage center in the back
right of the store, wherein the leak had been reoccurring in the most direct path to the area for weeks
preceding the accident. Id. at pp. 28-29. He also testified it was common for people to walk through the
area and would track additional liquid into the area in front of the beverage center. Id. at pp. 35-36. Wilson
could not think of another incident of a patron actually falling, but he stated customers have slipped and
caught themselves. Id. at p. 41. Wilson also admitted he was fired from RaceTrac for putting hours in that
he was not working. Id. at p. 53.
133 Rec. Docs. 12-2 at ¶¶10-11; 13-1 at ¶¶10-11.
134 “Rather than looking to whether the Plaintiff had actual knowledge of the condition, ‘the open-and-
obvious inquiry is objective, looking to whether the condition is obvious to all who may encounter it.’”
Thibodeaux, 816 F. App’x. at 990 (citing Broussard, 113 So. 3d at 184).
135 See Buchanan, 834 F. App’x. at 58 (citing Smith, 2014 WL 2740405, at *3); see also Massery, 196 So.
3d at 762; Broussard, 113 So. 3d at 188.
136 See White, 699 So. 2d at 1086; see also Bertaut, 209 So. 3d at 356; Migliore, 376 So. 3d at 1183.
137 Rec. Doc. 14 at p. 6.
138 Id. (citing Rec. Doc. 12-6 at ¶¶4-6 and p. 2).
Plaintiff concedes there is some cost to turning off the leaking cooler,
acknowledging RaceTrac would not make sales from the “grab & go” cooler if it was taken
out of service.139 Plaintiff suggests RaceTrac could have kept the cooler running and
leaking, while blocking off the ability of customers to traverse and track water from the
area, or it could have fixed or replaced the faulty unit.140 Plaintiff argues the cost of these
actions to prevent harm are relatively low compared to the risk of serious injury.141
However, as stated herein, Plaintiff shows no supporting authority that a merchant
must remove a leaking unit, or cardon off an area, to prevent an unreasonable risk of
harm under the statute. Thus, this factor does not weigh in favor of Plaintiff.
d. Nature of Plaintiff’s Activities
Defendant argues that the fourth factor “weighs heavily against finding an
unreasonably dangerous condition because there is no particular social utility in Plaintiff’s
going to get a cup for her ‘coffee ice.’”142 Defendants state that Plaintiff’s unreasonable
assumption that the area by the drink machines was dry merely because the pooled water
and sign she saw was a few feet away increased her danger.143
Plaintiff asserts she was a regular store customer, which is the purpose of the
store.144 She argues it should not be dangerous by nature to enter a merchant’s facility
as a customer.145 Plaintiff contends the sole reason it was dangerous by nature was
RaceTrac’s ongoing tort of keeping an actively leaking piece of machinery in service.146
139 Rec. Doc. 13 at p. 10.
140 Id.
141 Id.
142 Rec. Doc. 14 at p. 6.
143 Id.
144 Rec. Doc. 13 at p. 10.
145 Id.
146 Id.
“The last factor of the risk-utility analysis requires consideration of the nature of
[the plaintiff’s] activities in terms of social utility or whether the activities were dangerous
by nature.”147 Here, the nature of Plaintiff’s activity was not dangerous by nature and
bears social utility as a patron. However, although the utility of Plaintiff’s activity “may be
important and it is not dangerous in nature, it does not weigh heavily as a consideration
in determining an unreasonably dangerous condition.”148
Based on the undisputed material facts, including images of video surveillance to
which the Court gives greater weight,149 the Court finds there are no genuine issues of
material fact that the wet floor, marked by caution signs, was open and obvious, and thus
did not create an unreasonable risk of harm.
2. Failure to Exercise Reasonable Care
The undisputed material facts relevant to the third element under La. R.S.
2800.6(B)(1) is equally fatal to Plaintiff’s cause of action.150 Defendants contend Plaintiff
cannot prove RaceTrac failed to exercise reasonable care because there is unrebutted
evidence that RaceTrac deployed unobstructed yellow “wet floor” signage just a few feet
from where Plaintiff fell.151 Defendants assert elements one and three factually overlap
because the reason the alleged wet floors did not pose an “unreasonable risk of harm” is
that RaceTrac used “reasonable care” by placing warning signage in the area.152
Defendants argue that RaceTrac had a policy of calling a repairman when the
leaking cooler was reported, and in the meantime, mopping the floor and placing yellow
147 Latour, 371 So. 3d at 1038.
148 Farrell, 359 So.3d at 479.
149 See Carnaby, 636 F.3d at 187.
150 See White, 699 So. 2d at 1086; see also Bertaut, 209 So. 3d at 356; Migliore, 376 So. 3d at 1183.
151 Rec. Doc. 12-1 at p. 10.
152 Id. at p. 11.
caution signage at the site of the problem.153 Plaintiff’s friend and former shift manager
Wilson admits that was done here.154 Thus, Defendants contend RaceTrac exercised
reasonable care.155 Further, Defendants argue the unrebutted evidence shows RaceTrac
exercised reasonable care by placing yellow “wet floor” signage a few feet from where
Plaintiff fell.156 Plaintiff admits that before she fell, she recognized the sign as a “wet floor”
sign that cautioned her to be careful.157
Defendants point to numerous Louisiana federal and state court decisions holding
that a merchant exercises reasonable care by placing an unobstructed caution sign in the
vicinity of a wet floor, and they argue nothing distinguishes the instant case.158 Defendant
contends that even where a plaintiff fails to see the “wet floor” sign, summary judgment is
appropriate.159 Plaintiff admits she saw the sign, as well as puddled water under the sign,
and she paused to observe the sign before proceeding around it.160 Defendants state that
Plaintiff’s testimony that there should have been a “wet floor” sign immediately on top of
or next to the spot where she slipped is a notion rejected by the courts.161 “[C]ourts require
only that visible warning signage be placed in the reasonable vicinity of the wet area.”162
Plaintiff states her arguments as to the first element apply to whether RaceTrac
failed to exercise reasonable care.163 Plaintiff asserts Defendants acknowledged that the
153 Id.
154 Id.
155 Id.
156 Id. (citing Rec. Doc. 12-4 at pp. 82, 106).
157 Id. (citing Rec. Doc. 12-4 at p. 54).
158 Id. at pp. 12-13.
159 Id. at p. 13.
160 Id. (citing Rec. Doc. 12-4 at pp. 61, 74).
161 Id. at p. 14.
162 Id. at p. 15 (citing Cruz v. W.H. Braum, Inc., No. 21-40477 (5th Cir. Feb. 3, 2022), 2022 WL 325469, at
*3).
163 Rec. Doc. 13 at p. 11.
“home office” had knowledge of a leak from the leaking cooler from at least July 19, 2023
and that it was again reported on August 14, 2023.164 Plaintiff further argues the record
evidence shows personnel in the store had knowledge that the unit was actively leaking
in the weeks leading up to the fall and failed to address to source of the leak.165
Plaintiff again asserts the facts of this case are distinguishable from those cited by
Defendants wherein courts found that the placing of a “wet floor” sign for a leak constitutes
reasonable care.166 She claims this case involves an “ongoing” leak distinguishable as an
“ongoing hazard” versus a temporary hazard such as “active mopping” or a spilled
soda.167 Plaintiff posits that taking the cooler out of service or blocking the aisle would be
more reasonable.168 Plaintiff contends that RaceTrac had ongoing knowledge that
mopping the accumulated water and putting out “wet floor” signs was insufficient, pointing
to Wilson’s testimony that she saw “near-miss” slip incidents despite the use of signage
164 Id. (citing Rec. Doc. 12-6). Plaintiff questions the accuracy of Romeo’s attestation that “Plaintiff fell on
August 15, 2023, before the repairman arrived.” Rec. Doc. 13 at p. 11 (citing Rec. Doc. 12-6 at ¶6). Plaintiff
questions whether repair was made the same day after Plaintiff fell and questions the efficacy of the repairs
to the cooler. Id. at p. 11, n. 35. Plaintiff bases her assertion on Exhibit 16 of her deposition which she
contends is an image of “a large active leak under a wet floor sign taken the day following the August 15,
2023 fall.” Id. Plaintiff does not point to any other record evidence supporting this assertion. A review of
Plaintiff’s testimony establishes that “the puddle on Exhibit 16” “was taken after the accident,” “on either the
day after the accident or some other day[.]” Rec. Doc. 12-4 at pp. 53-54, 68. Exhibit 16 was discussed in
terms of discussing a comparison of the representative size of the puddle and a discussion of the quality,
color, style, and wording of the type of sign she saw. Id. Additionally, in support of Romeo’s attestation, a
service invoice shows a repair order created August 14, 2023 at 6:37 CST with a repair scheduled for
August 15, 2023 at 18:30 CST. Rec. Doc. 12-6 at pp. 1-4. It also shows repair work completed on August
15, 2023 at 12:40 CST consisting of “clean coils and clean out drain[.]” Id. at p. 3. Wilson testified that the
“ongoing leak that was occurring” was due to condensation, that the store would put in repair tickets, and
that maintenance people would come fix it and it would start back leaking again. Rec. Doc. 12-5 at pp. 20-
21, 46-47. Plaintiff does not point to record evidence refuting Romeo’s attestation and repair order.
Regardless, Plaintiff does not dispute that during the time leading up to her fall, the store followed its
procedure by mopping the area and placing a yellow “wet-floor” sign where the leak was, which was
because of a leaking refrigerator that was awaiting repairs. Rec. Docs. 12-2 at ¶¶10-11; 13-1 at ¶¶10-11.
165 Rec. Doc. 13 at p. 11.
166 Id.
167 Id.
168 Id. at pp. 11-12.
and mopping.169 Plaintiff disputes that Defendants are relieved of liability simply because
Plaintiff admittedly saw the sign and the puddle under the sign.170 Rather, Plaintiff claims
it was only after she entered a “different aisle” that she encountered tracked water and
fell.171 She asserts that the facts establish that she fell at least five feet up to eight or nine
feet from the warning sign.172 She questions the “protective radius” of a “wet floor” sign.173
Thus, Plaintiff argues RaceTrac’s actions lacked reasonable care by “keeping the
malfunctioning cooler operational, the aisles open and the hazardous condition continuing
to spread.”174
Defendants respond that Plaintiff provides no authority for the “invented
proposition that warning signage is adequate for ‘temporary’ problems but not for
‘ongoing’ problems.”175 Defendants argue that Plaintiff cannot survive summary judgment
by arguing that her preferred approach to the leak is “more reasonable” than the
jurisprudentially approved method of mopping and placing signage.176
Under La. R.S. 9:2800.6, “a merchant such as [RaceTrac] owes a duty to persons
who use its premises to exercise reasonable care to keep its 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
169 Id. (citing Rec. Doc. 12-5 at pp. 51-52).
170 Id. at p. 12.
171 Id.
172 Id. at pp. 3, 13. Plaintiff initially argues she fell approximately five to eight feet from the visible puddle
and “wet floor” sign. Id. at p. 3, n. 21. Plaintiff later contends she was at least five and up to nine feet from
the warning sign. Id. at p. 13.
173 Id. at p. 13.
174 Id.
175 Rec. Doc. 14 at p. 6.
176 Id. (citing Simmons v. Berglin, 401 F. App’x. 903, 908-09 (5th Cir. 2010)).
damage.”177 “However, merchants are not insurers of their patrons' safety, and a customer
is under a duty to use ordinary care to avoid injury.”178 Plaintiff must establish that
RaceTrac failed to exercise reasonable care.179 The absence of a written or verbal
uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise
reasonable care.180
Melancon v. Popeye's Famous Fried Chicken181 is more typical of many Louisiana
slip and fall cases. In Melancon, summary judgment was found to be proper where two
“wet floor” signs were present in the area where an employee was mopping during
business hours and the patron walked directly past the signs and the employee.182 This
was held to be sufficient notice that a wet floor condition existed throughout a fast-food
restaurant.183 “Jurisprudence has specifically found that mopped floors do not create an
unreasonable risk of harm when the appropriate signage is used to warn patrons of the
condition of the floor.”184
Under similar facts, the Fifth Circuit affirmed summary judgment, finding the
defendant did not create an unreasonable risk of harm and exercised reasonable care by
placing three warning signs throughout the store, which plaintiff passed, along with an
employee actively mopping, before her fall.185 There, the court stated that whether or not
177 Mincey v. Rouse's Eng’g, LLC, 23-0251, p. 4 (La. App. 1 Cir. 11/3/23), 378 So. 3d 126, 129 (citing La.
R.S. 9:2800.6(A), and Lewis v. Jazz Casino Co., LLC., 17-0935, p. 7 (La. App. 4 Cir. 4/26/18); 245 So.3d
68, 73).
178 Short v. RaceTrac Petroleum, Inc., 22-0859, p. 11 (La. App. 1 Cir. 2/24/23), 361 So. 3d 1051, 1060.
179 La. R.S. 9:2800.6(B)(3).
180 Id.
181 10-1109 (La. App. 3 Cir. 2011); 59 So. 3d 513.
182 Melancon, 59 So. 3d at 515-16.
183 Id. at 516.
184 Id. (citing Rowell, 996 So.2d at 476; Lee, 960 So.2d 1042; see also McDonald v. PNK (Bossier City),
LLC, 304 So. 3d 143 (La. Ct. App. 2 Cir. 2020).
185 Foreman v. Circle K Stores, Inc., 766 F. App’x. 165, 168 (5th Cir. 2019) (stating that Louisiana
jurisprudence “has specifically found that mopped floors do not create an unreasonable risk of harm when
plaintiff actually saw the “wet floor” sign, the defendant did not act negligently, as there
were multiple opportunities to observe the warning signs before her fall.186
Plaintiff establishes that it is undisputed that the “grab & go” refrigeration unit was
actively leaking at the time of the accident, caused by condensation according to former
RaceTrac shift manager Wilson’s testimony. It is undisputed that Wilson testified that
RaceTrac “had constant problems with this machine leaking,” and that the leak had been
ongoing for “a couple of weeks” to “maybe like a month or so.” Plaintiff further shows that
Wilson testified that patrons would “walk directly through” the water and “track that whole
section where the beverages, in front of the chips, even by the section where the drinks
are in the refrigerated area.”187
Plaintiff references RaceTrac’s actual knowledge of the leak, arguing that it
“created an additional hazard” by keeping the cooler in service and the aisle open to
patrons to track water.188 However, Plaintiff’s arguments regarding the “ongoing” nature
of the leak go to the second element of notice under La. R.S. 9:2800.6(B)(2) as to whether
the potentially negligent maintenance or keeping the cooler in service “created” the
“condition which caused the damage, prior to the occurrence.”189 As noted herein, neither
the appropriate signage is used to warn patrons of the conditions of the floor” and that “[d]espite the fact
that [the plaintiff] denied seeing any warning signs or cones, she had multiple opportunities to observe the
warning sign or cone upon entering and exiting through the corridor”); see Douglas v. PNK (Lake Charles)
LLC, 2019 WL 1368532, at *4 (quoting Melancon, 59 So. 3d at 516).
186 Foreman, 766 F. App’x. at 168 (citing Turner v. Brookshire Groc. Co., 34,562, p. 5 (La. App. 2 Cir. 4/4/01),
785 So. 2d 161, 165); Melancon, 59 So. 3d at 516).
187 Rec. Doc. 12-5 at p. 36.
188 Rec. Doc. 13 at p. 6.
189 See Deshotel v. Wal-Mart La., LLC., 850 F.3d 742, 747-48 (5th Cir. 2017) (synthesizing Fifth Circuit and
Louisiana state court cases finding that it must be evident that a defendant “created” the hazardous
condition, explaining that “[t]he ordinary meaning of ‘creation’ admits of creation both through direct action
– pounding holes into the roof with hammers –and failure to act –e.g., a failure to fix a known leaky roof,
leading to the creation of hazardous puddles on the floor.”); see also Kennedy v. Wal-Mart Stores, Inc., 98-
1939 (La. 4/13/99), 733 So. 2d 1188, 1191 (Though the time period need not be specific in minutes or hours,
constructive notice requires the claimant prove the condition existed for some time prior to the fall.”).
party briefed the second element as it was undisputed that Defendants had knowledge of
the leaking cooler, which was awaiting repairs, and that the area had been recently
mopped, with three yellow “wet floor” signs and a mop bucket out in the interim.190 Plaintiff
raises this assertion regarding the alleged “ongoing” nature of the leak to establish
Defendant failed to exercise reasonable care in not taking the cooler out of service, failing
to address the source of the leak, or blocking access to the area of the leak.191 Plaintiff
does not provide any caselaw supporting this assertion as it relates to the third element.
Along those same lines, in asserting RaceTrac “created” an additional hazard,
Plaintiff tries to distinguish the “immediacy of the hazard” in this case from the facts in the
cases cited by Defendant.192 Plaintiff summarizes that each case included “active
involvement,” such as “actively mopping” or “recently mopped,” in “creating a temporary
hazard or addressing a temporary hazard.”193
However, Plaintiff oversimplifies her characterizations of those hazards as “active”
while failing to account for the material facts as to the exercise of reasonable care by a
merchant in warning of such hazards by its cleanup and signage. Plaintiff’s argument
“blurs the lines of the elements of proof required by La. R.S. 9:2800.6” by asserting that
RaceTrac failed to exercise reasonable care by creation of the hazard or failure to remedy
or maintain the cooler creating the hazard.194 Assertions as to Defendants’ alleged failure
to remedy an “ongoing” nature of a condition or hazard would be germane to determine
190 Rec. Docs. 12-2 at ¶¶10-11; 13-1 at ¶¶10-11.
191 Rec. Doc. 13 at p. 12.
192 Id. at pp. 5-6.
193 Id.
194 See Matlock v. Brookshire Grocery Co., 53,069 (La. App. 2 Cir. 11/20/19), 285 So. 3d 76, 82 (finding that
such arguments would nullify an element of La. R.S. 9:2800.6).
whether Defendants “created the condition” and thus had constructive or actual notice of
the condition under the second element.195 Notice is not at issue here.
Although Defendants admit Wilson testified that the leak was ongoing, RaceTrac
disputes that characterization with the affidavit of RaceTrac General Liability Specialist
Romeo.196 Romeo attests that a leak in the cooler was reported on July 19, 2023, and
fixed the next day, and another issue was reported on August 14, 2023, with a similar
condensation issue and fixed on August 15, 2023 – the day of Plaintiff’s accident.197 In
the interim between the report and the repairman arriving and fixing the problem, the
store’s policy was to mop the area of the spill and place “wet floor” signage near the store
entrance and in the immediate vicinity of the spill.198
Plaintiff also does not provide support for the assertion that RaceTrac had to place
a sign directly over the spot where she fell or block off the aisle. This Court has previously
rejected a similar argument, observing that “[p]laintiff does not cite, nor is the Court aware
of any case that holds signage is unreasonable if water is slightly outside of a wet floor
sign.”199
It is undisputed that the three yellow “wet floor” signs and mop bucket were out
because of a leaking refrigerator near the pizza display that was awaiting repairs. Video
surveillance indicates the three signs, a mop bucket by the third sign, Plaintiff walking by
the first two, then observing the unobscured third sign in the path of anyone approaching
195 See La. R.S. 9:2800.6(B)(2).
196 Rec. Doc. 15 at ¶10 (citing Rec. Doc. 12-6 at ¶¶3-4).
197 Rec. Doc. 12-6 at ¶¶3-5.
198 Id.
199 Ward v. American Multi-Cinema, Inc., 2018 WL 3552335, at *2 (M.D. La. Jul. 24, 2018) (granting
summary judgment where plaintiff admittedly fell within a foot or two of a “wet floor” sign); Jones v. Circle K
Stores, Inc. No. 16-cv-00691 -BAJ-EWD, 2018 WL 910163, at *2 (M.D. La. Feb. 15, 2018) (citing Melancon,
59 So. 2d at 516) (finding the merchant exercised reasonable care by placing two “wet floor” within a few
feet of an employee mopping, one of which was “near” where plaintiff fell).
the drink machine from that side of the chips display, walking past it, and falling within feet
of the third sign and mop bucket.200 Plaintiff admits she paused to look at the sign because
she could see accumulated water under it and knew the sign was a warning about wet
floors.201 It is also undisputed that during the time leading up to Plaintiff’s fall, the store
followed its procedure by mopping the area and placing a yellow “wet floor” caution sign
where the leak was.
Moreover, the still images of the video surveillance with time-stamps clearly depict
the three “wet floor” signs, located from Plaintiff’s entry into the RaceTrac throughout her
path and up to the beverage center the third of which she paused to observe, walked
around it and obtained a cup, turned around again facing the same sign, and falling within
seconds at the beverage center. The Court “need not rely on the plaintiff’s description of
the facts where the record discredits that description but should instead consider ‘the
facts in the light depicted by the videotape.’”202 The images establish that the RaceTrac
used the appropriate signage to warn patrons such as Plaintiff of the wet condition of the
floor.203 They further discredits Plaintiff’s argument that she “fell on a different aisle” than
the third “wet floor” sign as the video surveillance from multiple angles shows that, in the
path she traversed (one of three access points to beverage center), the sign was directly
in front of her within a few feet to the beverage center.204 The images depict Plaintiff
successfully grabbed a cup from the beverage center, turned around facing the same sign
200 Rec. Docs. 12-2 at ¶¶3-7, 10, 11; 13-1 at ¶¶3-7, 10, 11; 12-4 at pp. 102-115.
201 Rec. Docs. 12-2 at ¶7; 13-1 at ¶7.
202 Carnaby, 636 F.3d at 187 (quoting Scott v. Harris, 550 U.S. 372, 381 (2007)).
203 Rec. Doc. 12-4 at pp. 102-116.
204 Id.
again from the other direction, and within three seconds fell after turning back again to
the beverage center.205
Thus, the undisputed facts establish that RaceTrac followed its safety procedure
and exercised reasonable care by placing three “wet floor” signs to warn Plaintiff of the
wet floor, which Plaintiff saw unobscured in her direct path and recognized as a warning
about wet floors. On the record before the court, even assuming the hazardous condition
(ongoing leaking cooler) existed and RaceTrac knew of the ongoing leak, there is no basis
to conclude that RaceTrac failed to exercise reasonable care to protect its patrons.
Here, construing all facts and inferences in favor of Plaintiff as the nonmoving
party, Plaintiff’s failure to prove the first and third elements of the additional requirements
of La. R.S. 9:2800.6(B) is “fatal to the claimant’s cause of action.”206 Thus, summary
judgment is warranted.
III. CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment207 is
GRANTED, and Plaintiff’s suit is hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this _1_7_th day of ____S_e_p_te_m__be_r____, 2025.
S
________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
205 Id. at pp. 109-10.
206 White, 699 So. 2d at 1086; see also Bertaut, 209 So. 3d at 356.
207 Rec. Doc. 12.