# Hogg

> District Court, W.D. Louisiana · November 4, 2025

URL: https://www.frixlaw.com/law-library/cases/11198996

## Case

- **Full name:** Amber Hogg v. Walmart Stores Inc et al
- **Court:** District Court, W.D. Louisiana
- **Decided:** November 4, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11198996. Public record. Not legal advice.