Hogg

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

AMBER HOGG CASE NO. 6:24-CV-01752

VERSUS MAGISTRATE JUDGE CAROL B.

WHITEHURST

WALMART STORES INC ET AL

MEMORANDUM RULING

Before the Court is Defendant Walmart Inc. and Walmart Claims Services,

Inc.’s (collectively “Walmart”) Motion for Summary Judgment. (Rec. Doc. 21).

Plaintiff opposed the motion (Rec. Doc. 25), and Walmart replied (Rec. Doc. 28).

Considering the evidence, the law, and the parties’ arguments, and for the following

reasons, Walmart’s motion is granted.

Facts and Procedural History

Plaintiff filed this suit in state court in May 2023 after she slipped and fell on

water on the floor at the Walmart in Eunice, Louisiana. (Rec. Doc. 1-2). Walmart

removed the case based on diversity jurisdiction and now moves to dismiss

Plaintiff’s claims under Louisiana’s merchant liability statute, La. R.S. 9:2800.6.

The evidence supports the following findings of undisputed facts:

• On July 28, 2023, Plaintiff was walking down the water aisle at Walmart,

carrying a case of bottled water, when she slipped and fell. (Rec. Doc. 21-4,

Depo. p. 36-39). Following her fall, she observed two puddles of clear water

each about the size of her hand. (Depo. p. 43-45).

• Three Walmart employees were on the aisle at the time of her fall, but she did

not know if they knew the water was on the floor. (Depo. p. 39; 42).

• Plaintiff did not know how the water came to be on the floor (Depo. p. 41).

She did not observe any bottle caps or other evidence of opened water on the

aisle. (Depo. p. 50).

• Plaintiff did not know how long the water had been on the floor before her

fall. (Depo. p. 42-43; 46). She did not observe the water prior to her fall and

could not say whether it had been stepped in or tracked through before. She

observed only her own skid mark through a puddle. (Depo. p. 44-45).

• The incident was not captured on Walmart’s video surveillance, and

photographs do not provide any indication of how the water came to be on the

floor or for how long it may have been there prior to the incident. (Rec. Doc.

21-7; 21-8).

Walmart moves to dismiss Plaintiff’s claims on the grounds that she has no

evidence to show that Walmart had actual or constructive notice of the water, as

essential for her to prevail.

Law and Analysis

“In diversity cases, a federal court must apply federal procedural rules and the

substantive law of the forum state.” Hyde v. Hoffmann-La Roche, Inc., 511 F.3d 506,

510 (5th Cir. 2007). Thus, F.R.C.P. Rule 56, regarding motions for summary

judgment, and Louisiana’s merchant liability law govern this case.

I. Rule 56 Motion for Summary Judgment

Under F.R.C.P. Rule 56(a), summary judgment is appropriate when there is

no genuine dispute as to any material fact, and the moving party is entitled to

judgment as a matter of law. Rule 56(a) also permits partial summary judgment on

any part of a claim or defense. A fact is material if proof of its existence or

nonexistence might affect the outcome of the lawsuit under the applicable governing

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Sossamon v. Lone

Star State of Tex., 560 F.3d 316, 326 (5th Cir.2009). A genuine issue of material fact

exists if a reasonable jury could render a verdict for the nonmoving party. Brumfield

v. Hollins, 551 F.3d 322, 326 (5th Cir.2008).

The party seeking summary judgment has the initial responsibility of

informing the court of the basis for its motion and identifying those parts of the

record that demonstrate the absence of genuine issues of material fact. Washburn v.

Harvey, 504 F.3d 505, 508 (5th Cir.2007) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). If the moving party carries its initial burden, the burden shifts to

the nonmoving party to demonstrate the existence of a genuine issue of a material

fact. Washburn, 504 F.3d at 508. All facts and inferences are construed in the light

most favorable to the nonmoving party. Brumfield v. Hollins, 551 F.3d at 326 (citing

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).

If the dispositive issue is one on which the nonmoving party will bear the

burden of proof at trial, the moving party may satisfy its burden by pointing out that

there is insufficient proof concerning an essential element of the nonmoving party's

claim. Norwegian Bulk Transport A/S v. International Marine Terminals

Partnership, 520 F.3d 409, 412 (5th Cir.2008) (citing Celotex, 477 U.S. at 325). The

motion should be granted if the nonmoving party cannot produce evidence to support

an essential element of its claim. Condrey v. Suntrust Bank of Ga., 431 F.3d 191,

197 (5th Cir.2005).

II. Merchant Liability Under La. R.S. 9:2800.6

The Fifth Circuit has summarized Louisiana merchant liability law as such:

In Louisiana, a standard negligence claim consists of five

elements: (1) a duty of care; (2) a breach of that duty; (3) cause in fact

(4) legal cause; and (5) damages. Lemann v. Essen Lane Daiquiris, Inc.,

05-1095, p. 7 (La. 3/10/06), 923 So. 2d 627, 633. A plaintiff bringing a

slip and fall claim, however, has the additional burden, under the state's

merchant liability statute, of proving an extra element: that “[t]he

merchant either created or had actual or constructive notice of the

condition which caused the damage, prior to the occurrence.” La. Rev.

Stat. Ann. § 9:2800.6(B)(2); see also Duncan v. Wal-Mart La., L.L.C.,

863 F.3d 406, 409 (5th Cir. 2017). To prove constructive notice, the

plaintiff must show “that the condition existed for such a period of time

that it would have been discovered if the merchant had exercised

reasonable care.” La. Rev. Stat. Ann. § 9:2800.6(C)(1).

Miller v. Michaels Stores, Inc., 98 F.4th 211, 216 (5th Cir. 2024).

The question of timing that a condition has existed—often called the temporal

element—hinges upon the plaintiff’s ability to show both existence of the condition

and a period of time:

The Louisiana Supreme Court has explained that to prove the

temporal element, a plaintiff “must make a positive showing of the

existence of the condition prior to the fall” as well as the “additional

showing that the condition existed for some time before the fall.” White

v. Wal-Mart Stores, Inc., 97-0393, p. 4 (La. 9/9/97), 699 So. 2d 1081,

1084 (emphasis added). Accordingly, to survive summary judgment, a

plaintiff must satisfy the “prerequisite” of putting forth “some positive

evidence ... of how long the condition existed prior to the fall.” Bagley

v. Albertsons, Inc., 492 F.3d 328, 331 (5th Cir. 2007) (quoting Robinson

v. Brookshires # 26, 33,713, p. 5-6 (La. App. 2 Cir. 8/25/00), 769 So.

2d 639, 642). Louisiana courts—as well as the district court here—have

noted the heavy burden that the standard creates, “ma[king] it almost

impossible for a [p]laintiff to prove the temporal element to show

constructive notice.” Kimble v. Winn-Dixie La., Inc., 01-514, p. 10 (La.

App. 5 Cir. 10/17/01), 800 So. 2d 987, 992; see also Fountain, 297 So.

3d at 104.

Id.

The Court agrees with Walmart that no evidence shows that Walmart created

the condition of the water on the floor or had actual notice of it. Plaintiff testified

that she did not know how the water came to be on the floor. (Rec. Doc. 21-4, Depo.

p. 41-46). Additionally, Plaintiff offers no evidence as to how long the water may

have been on the floor in order to show the condition existed for some period of

time. She testified that the water was clear and untracked save for her own skid mark.

(Depo. p. 44-46). See Britt v. Brookshire Grocery Co., No. CV 17-01117, 2020 WL

703104, at *3 (W.D. La. Feb. 10, 2020). (“Courts have found evidence that the

substance was brown and had buggy marks through it enough to establish the

temporal element of constructive notice.”) Thus, Plaintiff cannot show that Walmart

had constructive notice. Summary judgment is appropriate where the plaintiff fails

to offer any evidence to contradict a merchant’s showing that it did not have actual

or constructive notice of condition on its premises. See e.g. Sapia v. Walmart Inc.,

No. 6:22-CV-01725, 2024 WL 3243514 (W.D. La. June 28, 2024); Wallace v.

Brookshire Grocery Co., 55,877 (La. App. 2 Cir. 10/2/24), 400 So. 3d 1057; Lidell

v. Savaski, 24-5 (La. App. 5 Cir. 10/9/24), 398 So. 3d 741, 745; Bearden v. K & A

of Monroe, LLC, 55,746 (La. App. 2 Cir. 7/17/24), 399 So. 3d 515, 525 (all granting

summary judgment where the plaintiff offered no evidence of the store’s actual or

constructive notice of a clear liquid on the floor).

Plaintiff argues, without any evidentiary support, that “the employees may

have been aware of the wet condition yet failed to properly mitigate the hazard.”

(Rec. Doc. 25, p. 3). She relies on cases involving employees present near the spill,

such as Blackman v. Brookshire Grocery Co., 2007-348 (La. App. 3 Cir. 10/3/07),

966 So. 2d 1185 and Carter v. Zurich Am. Ins. Co., No. CIV.A. 11-125-JJB, 2012

WL 702270 (M.D. La. Mar. 1, 2012). These cases are distinguishable, however,

insofar as the plaintiffs in those cases presented affirmative evidence that the spill

had been present for some period of time. Plaintiff in this case offered no such

evidence. See also Kimble v. Winn-Dixie Louisiana, Inc., 01-514 (La. App. 5 Cir.

10/17/01), 800 So. 2d 987, 992 (“[T]he mere fact that the egg membrane was on the

floor when Plaintiff observed an employee stocking the meat department does not

mean that the employee was there when the spill occurred, when an attempt was

made to clean it, or that he saw the spillage, which, notably was a clear substance.”).

All evidence considered, the Court finds that Walmart has met its burden to

show it did not have actual or constructive knowledge of the spill and that Plaintiff

failed to overcome her burden to show otherwise. Accordingly, Walmart’s Motion

for Summary Judgment (Rec. Doc. 21) is GRANTED.

THUS DONE in Chambers, Lafayette, Louisiana on this 4" day of November,

CAROL B. WHITEHURST

UNITED STATES MAGISTRATE JUDGE