Petition for Writ of Certiorari — Romero v. Kmart Corp.

ea

4189 GMAT 160%

NO. OEFICE OF THE CLERK

a

Iu the

Supreme Court of the United States

OCTOBER TERM, 1994

LINUS DUANE ROMERO, SR. and

DARLENE ROMERO

Petitioners,

versus

K-MART CORPORATION, d/b/a

K-MART DISCOUNT STORE NO 7061

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

of Linus Duane Romero, Sr. and Darlene Romero

LAWRENCE N. CURTIS

LA Bar Roll No: 4678

CURTIS & LAMBERT

(A Professional Law Corporation)

201 Rue Iberville, Suite 300

Post Office Box 80247

Lafayette, Louisiana 70598-0247

Telephone: (318) 235-1825

Attorney for Petitioners, Linus

Duane Romero, Sr. and

Darlene Romero

ea BF SAIS ALRITE he RI SRE RAEE TAB

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

QUESTIONS PRESENTED FOR REVIEW

Does a court of appeals commit reversible error when

it reviews a district court’s determination of state law

under the deferential ‘‘abuse of discretion’ standard,

rather than under the plenary de novo standard mandated

by this Court’s decision in Salve Regina College v. Russell,

499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991)?

ii

LIST OF PARTIES

The following are parties to this proceeding:

Duane Linus Romero, Sr.

Plaintiff-Petitioner

Darlene Romero

Plaintiff-Petitioner

K-Mart Corporation

Defendant Respondent

Lawrence N. Curtis, Esq. of the law firm

of Curtis & Lambert, Post Office Box 80247

Lafayette, Louisiana 70598-0247

Attorney for Plaintiffs-Petitioners

Ian A. Macdonald, Esq. of the law firm of

Perret, Doise, Daigle, Longman, Russo &

Zaunbrecher, Post Office Drawer 3408

Lafayette, Louisiana 70502-3408

Attorneys for Defendant-Respondent

Sp bekeerne amy PRIMI “-

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ......... 1

a en ak sa ae 6 Ne 6 AS We ii

UU EOD ok hace vice ccwews ues iii

prc Be ty kf ci SR rarer iv

ee Ss SSS oy wc wane Ned WW oe BON 1

rR de a Ea ran eee 1

STATUTE INVOLVED IN THIS CASE ........... 1

RCAC ene SOP Renee GOD os Se ee ae. 2

EG ga a Gal ae. pee ee uid ais ae 3

se ay ke Shs OCA o ale acele Se ie paw es 14

APPENDIX

Ee Eee, fay tre be KU We Oe he wee ee A-1

SE ids ee 5 0s 3S serve oo ON Aw hae oe A-8

ET RIM et ons un GUE NIK 6a Fare A-10

iv

TABLE OF AUTHORITIES

CASES Page

Bennett v. Soo Line Railroad Co., 35 F.3d 334, 336,

i ns GE oo eas See ee eee eae 5

Craddock v. Immigration & Naturalization Service,

O07 F.2d 1176, 11790 Gth Car. 1908) . cw. cee. 6

Entrevia v. Hood, 427 So.2d 1146, 1148 (La. 1983) ....5

Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58

Kees es Oe EA SE CREE 6 choi ce Nay Weeds 9

Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285,

SOR SO Te ee CA se ik vice ck oh bdo ve wee RK 12

Folks v. Kirby Forest Industries, Inc., 10 F.3d 1173

ens i oo ea ee ie ee ies wea 6,7,8

Hans Construction Co. v. Phoenix Assurance Co. of

New York, 995 F.2d 53, 55 (5th Cir. 1993).......... 6

In re Rasbury, 24 F.3d 159, 166 (11th Cir. 1994) ...... 6

Interstate Power Co. v. Kansas City Power & Light

Co., 992 F.2d 804, 807 (8th Cir. 1993).............. 6

Jackson v. Taylor, 912 F.2d 795, 798 (5th Cir. 1990) ...9

Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.

SEE ca kckce a ee ee ta ee ee 5

v

TABLE OF AUTHORITIES (continued)

CASES Page

Klonowski v. International Armament Corp., 17

Pape SOs, COG TH Ge: WO os a AGE KX, 6

Labiche v. Legal Security Life Insurance Co., 31

FOG SUR, SUi Wi Gc BO a i SEAS 6

LeBlanc v. K-Mart Corp., 1993 WL 262645 (E.D. La.

1993), affirmed, No. 93-3503 (5th Cir. 1994) ..... 10,11

Lutheran Medical Center of Omaha, Nebraska uv.

Contractors, Laborers, Teamsters & Engineers

Health & Welfare Plan, 25 F.3d 616, 620 (8th Cir.

FOES kb.6 eet di van rece ewe eet 5

ROE ok 60ST Ae OOS ET eee 5

Nesom v. Tri Hawk International, 985 F.2d 208, 209

CRO Ce, SE oo onc ee ee eee 7

Olsen v. Shell Oil Co., 365 So.2d 1285 (La. 1979) ...... 5

Pierce v. Underwood, 487 U.S. 552, 557-63, 108

S.Ct. 2541, 2546-49, 101 L.Ed.2d 490 (1988) ........ 5

Resolution Trust Corp. v. United States Fidelity &

Guaranty Co., 27 F.3d 122, 125 (5th Cir. 1994)...... 6

Ross v. La Coste De Monterville, 502 So.2d 1026,

Se Os SEO kk eh a a a a 5

vi

TABLE OF AUTHORITIES (continued)

CASES Page

Salve Regina College v. Russell, 499 U.S. 225, 111

S.Ct. 1217, 113 L.Ed.2d 190 (1991) ........... passim

Schexnider v. Winn Dixie Louisiana, Inc., 490

So.2d 1095 (La.App.3rd Cir. 1986), writ denied

401 Ga De Ot Gwe, Be. sc his 0 ic hccn ceases 11

Sheppard & Enoch Pratt Hospital, 32 F.3d 120, 124

(Ot: SEE 6 no ie Ee oe 5

Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct.

1078, 1084, 89 L.Ed.2d 251 (1986) ............. 12,13

Wilfong v. U.S., 991 F.2d 359, 364 (7th Cir. 1993) ..... 6

Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115

LL aS8 OT GOR oS ois oe ee 12,14

STATUTES

8 UI. ME «ok a Oe ee 1

USE MIM .<. 4c. aa eee 2

UEO GW ee eee 2

98 U.S0. BRIO erin ks a ee 1

Rule 47.5, Local Rules of the Fifth Circuit......... 9,12

vii

TABLE OF AUTHORITIES (continued)

STATUTES (continued)

Louisiana Civil Code Article 2317 .............. passim

Louisiana Revised Statutes 9:2800.6 .............. 4,10

2

DECISIONS BELOW

The decision of the United States Court of Appeals,

Fifth Circuit, is unpublished but is reported at 44 F.3d

1005 (5th Cir. 1995) and 48 F.3d 533 (5th Cir. 1995).

The unpublished decision of the Court of Appeals

and the unreported decision of the District Court are

reproduced in the appendix.

JURISDICTION

This Petition seeks review of a judgment of the

United States Court of Appeals, Fifth Circuit, entered on

January 5, 1995. After its entry, Plaintiffs petitioned for

rehearing and/or rehearing en banc. On February 15, 1995,

the Court of Appeal denied the Petiton for Rehearing with

no member of the panel or Judge in regular active service

on the court requesting that the court be polled on rehear-

ing en banc.

This Petition is timely filed pursuant to 28 U.S.C.

§ 2101(c). This Court’s jurisdiction is invoked pursuant to

28 U.S.C. 1254(1).

STATUTE INVOLVED IN THIS CASE

Louisiana Civil Code Article 2317:

2

Art. 2317. Acts of others and of things in custody

We are responsible, not only for the damage occa-

sioned by our own act, but for that which is caused by the

act of persons for whom we are answerable, or of the things

which we have in our custody. This, however, is to be

understood with the following modifications.

STATEMENT OF THE CASE

Linus Romero, Sr. and his wife, Darlene Romero,

residents of the State of Louisiana, brought this civil action

against K-Mart Corporation to recover damages resulting

from injuries suffered by Linus Romero, Sr. when he slip-

ped on motor oil and fell in K-Mart’s retail store in New

Iberia, Louisiana. Plaintiffs filed their claims in the Six-

teenth Judicial District Court in and for the Parish of

Iberia, State of Louisiana, and K-Mart subsequently

removed them to the United States District Court for the

Western District of Louisiana pursuant to 28 U.S.C.

§§ 1332 and 1441.

Plaintiffs’ claims were tried before a jury on

November 17, 1993 through November 19, 1993. At the

close of the trial, the trial judge instructed the jury on

Plaintiffs’ negligence theory but refused to give requested

instructions on their theory of strict liability under Loui-

siana Civil Code Article 2317. In response to special inter-

rogatories, the jury found that K-Mart was not negligent.

In accordance with the jury verdict, a judgment was

rendered by the District Court on November 19, 1993,

aan ieaiat|

| 3

dismissing Plaintiffs’ claims at their costs. Plaintiffs filed

a timely Motion for a New Trial pursuant to Rule 59 of the

Federal Rules of Civil Procedure, which was denied in a

written ruling on March 25, 1994.

Plaintiffs perfected an appeal to the United States

Court of Appeals, Fifth Circuit on April 20, 1994. The mat-

ter was assigned to the appellate court’s summary calen-

dar, and on January 5, 1995, the judgment of the District

Court was affirmed in an unpublished per curiam decision.

Plaintiffs’ application for rehearing and/or rehearing en

banc was denied on February 15, 1995 with no member of

the panel or Judge in regular active service on the court re-

questing that the court be polled on rehearing en banc.

ARGUMENT

ee roe

This matter, like Salve Regina College v. Russell, 499

; U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) involves

a District Court’s determination of state law, which was

implemented in its instructions to the jury. In Salve

Regina College v. Russell, supra, the district court submit-

' ted the plaintiff’s breach-of-contract claim to the jury with

appropriate instructions on the substantial performance

doctrine, because it determined that Rhode Island law sup-

ported the application of that doctrine to the contract at

issue in that case. In this case, the District Court refused

| to instruct the jury on Plaintiffs’ strict liability theory of

5 recovery under Louisiana Civil Code Article 2317, because

8 it found that Louisiana law did not support the application

of that provision to the particular facts of this case.

4

The District Court charged the jury that Plaintiffs

had to prove that K-Mart “either created or had actual or

constructive notice of the condition which caused the

damage, prior to the occurrence. . . .’’ Plaintiffs did not ob-

ject to the District Court’s instruction in so far as it related

to their negligence theories under La.R.S. 9:2800.6.!

1 La.R.S. 9:3800.6 provides:

§ 2800.5. Burden of proof in claims against merchants

A. A merchant owes a duty to persons who use his premises to exer-

cise reasonable care to keep his aisles, passageways, and floors in a

reasonably safe condition. This duty includes a reasonaable effort to

keep the premises free from any hazardous conditions which reasonably

might give rise to damage.

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 prov-

ing, and in addition to all other elements of his cause of action, that:

(1) the condition presented an unreasonable risk of harm to the clai-

mant 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; and

(3) The merchant failed to exercise reasonable care.

C. Definitions:

(1) “Constructive notice’’ means the condition existed for such a

period of time that it would have been discovered if the merchant had

exercised reasonable care.

(2) “‘Merchant”’ means one whose business is to sell goods, foods,

wares, or merchandise at a fixed place of business.

(D) Nothing herein shall affect any liability which a merchant may

have under Civil Code Arts. 660, 667, 669, 2317, 2322 or 2695. [emphasis

added.|

5

However, they requested that the jury also be instructed

under Louisiana Civil Code Article 2317, which imposes

strict liability on the owner and/or custodian of a defective

thing.” The trial judge declined to give this instruction,

because he found that Article 2317 was not applicable

under the facts of this case.®

In Salve Regina College v. Russell, supra, this Court

held that a court of appeals should review de novo such

determinations of state law. In this case, however, the stan-

dard of review that the Court of Appeal cited in affirming

the District Court’s determination was the more deferen-

tial ‘‘abuse of discretion’”’ standard.4

2 Under Article 2317, the owner of a “thing is not absolved from his

strict liability by his ignorance of the condition of the thing or by cir-

cumstances that show the defect could not be detected by the ...

fowner]."’ Ross v. La Coste De Monterville, 502 So.2d 1026, 1028 (La.

1987); Entrevia v. Hood, 427 So.2d 1146, 1148 (La. 1983); Olsen v. Shell

Oil Co., 365 So.2d 1285 (La. 1979). Except for the element of the Defen-

dant’s scienter, a cause of action for strict liability under Article 2317

is virtually the same as a cause of action for negligence. Nance v. Gulf

Oil Corp., 817 F.2d 1176 (5th Cir. 1987); Kent v. Gulf States Utilities Co.,

418 So.2d 493 (La. 1982).

3 It was undisputed that the condition which caused the damage in this

case was motor oil, which had leaked onto the floor from a punctured

container on K-Mart’s display shelf. Plaintiffs contend that K-Mart’s

ownership and custody of the defective motor oil container supports the

application of Louisiana Civil Code Article 2317. However, the trial

judge refused to submit this theory of liability to the jury, because he

determined that, as a matter of law, the motor oil container was not

defective within the meaning of Article 2317.

4 “ Abuse of discretion” has been universally recognized as a deferential

standard of review. See, e.g., Pierce v. Underwood, 487 U.S. 552, 557-63,

108 S.Ct. 2541, 2546-49, 101 L.Ed.2d 490 (1988); Bennett v. Soo Line

Railroad Co., 35 F.3d 334, 336, n.4 (8th Cir. 994); Sheppard & Enoch

Pratt Hospital, 32 F.3d 120, 124 (4th Cir. 1994); Lutheran Medical

6

K-Mart will no doubt adopt the argument of the

respondents in Salve Regina College v. Russell, supra, that

the court of Appeals did in fact engage in a de novo review,

even though it only articulated the deferential ‘‘abuse of

discretion”’ standard. However, as the Court observed in

Salve Regina College v. Russell, supra, this argument is an

invitation ‘‘to assume that courts of appeals craft their opi-

nions disingenuously.” Jd., 111 S.Ct. at 1223. If the Court

of Appeals had performed in a de novo review of the ap-

plicable Louisiana law, it would surely have said so, rather

than stating that it found no abuse of the trial judge’s

discretion.

The Fifth Circuit has cited Salve Regina College v.

Russell, supra, in numerous cases for the proposition that

it must review a district court’s determinations of state law

de novo. See, e.g., Labiche v. Legal Security Life Insurance

Co., 31 F.3d 350, 351 (5th Cir. 1994) (‘‘the apportionment of

recovery costs under state law is a legal issue that we

review de novo.’’); Resolution Trust Corp. v. United States

Fidelity & Guaranty Co., 27 F.3d 122, 125 (5th Cir. 1994)

(‘We review the district court’s interpretation of state law

de novo.”’); Folks v. Kirby Forest Industries, Inc., 10 F.3d

1173 (5th Cir. 1994); Hans Constructin Co. v. Phoenix

Assurance Co. of New York, 995 F.2d 53, 55 (5th Cir. 1993)

(“[T]he district court’s interpretations of applicable

(footnote 4 continued)

Center of Omaha, Nebraska v. Contractors, Laborers, Teamsters &

Engineers Health & Welfare Plan, 25 F.3d 616, 620 (8th Cir. 1994); In

re Rasbury, 24 F.3d 159, 166 (11th Cir. 1994); Klonowski v. International

Armament Corp., 17 F.3d 992, 995 (7th Cir. 1994); Interstate Power Co.

v. Kansas City Power & Light Co., 992 F.2d 804, 807 (8th Cir. 1993);

Craddock v. Immigration & Naturalization Service, 997 F.2d 1176, 1179

(6th Cir. 1993); Wilfong v. U.S., 991 F.2d 359, 364 (7th Cir. 1993).

7

Mississippi law are reviewed by this court de novo.’’);

Nesom v. Tri Hawk International 985 F.2d 208, 209 (5th

Cir. 1993) (‘‘This Court will interpret questions of state law

‘de novo’.’’)

In Folks v. Kirby Forest Industries, Inc., supra, the

Fifth Circuit reviewed a district court’s refusal to give a re-

quested jury instruction under circumstances which were

remarkably similar to the present case. In that case, the

defendant requested an instruction that the plaintiff was

required to prove the defendant’s actual or constructive

knowledge of a dangerous condition on its premises in

order to recover. The district court refused to give the in-

struction, because it found that it did not accurately reflect

Texas law.

In reviewing the district court’s refusal to give the

requested instruction, the Fifth Circuit set forth the stan-

dard of review, as follows:

“In diversity actions, federal court jury in-

structions must accurately describe the ap-

plicable state substantive law.”’ Turlington, v.

Phillips Petroleum Co., 795 F.2d 434, 441-42 (5th

Cir. 1986). We review de novo a district court’s

determination of a question of state law. City

Pub. Serv. Bd. v. Gen. Elec. Co., 935 F1.2d 78, 80

(5th Cir. 1991) (citing Salve Regina College uv.

Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 1225,

113 L.Ed.2d 190 (1991)), modified on other

grounds, 947 F.2d 747, 748 (5th Cir. 1991). ““A

party is entitled to reversal of a district court’s

failure to give a particularly requested instruc-

tion only if the jury was misled by the instruc-

8

tions that were actually given’”’ Pierce v. Ramsey

Winch Co., 753 F.2d 416, 425 (5th Cir. 1985). ‘[W]e

afford our district courts latitude inpresenting

state law as long as that presentation is substan-

tively correct.”’ Turlington, 795 F.2d at 442 (em-

phasis added).”’ Jd., at 1175.

In this case, the District Court gave the kind of in-

struction that was requested by the defendant in Folks v.

Kirby Forest Industries, Inc., supra. In affirming the

District Court’s refusal to give an additional instruction

that scienter was not an element of recovery under Loui-

siana Civil Code Article 2317, the Court of Appeal held:

“Given the nature of the evidence in this

case and the absence of controlling Louisiana

cases supporting appellant’s position, we cannot

say that the district court abused its discretion in

not giving the jury instructions on strict liabili-

ty.”” [emphasis added.]

Unlike the decision in Folks v. Kirby Forest In-

dustries, Inc., supra, there is nothing in the language of the

Court of Appeals’ decision in this case to suggest that it

employed different standards in reviewing the District

Court’s refusal to give a requested instruction and its

underlying determination of the applicable state law. Fur-

thermore, the Court of Appeals’ decision not to publish its

decision is a clear indication that it did not engage in a de

novo determination of underlying Louisiana Law.

Rule 47.5 of the Local Rules of the Fifth Circuit pro-

vides that opinions should be published unless they ‘‘have

no precedential value and merely decide particular cases on

9

the basis of well-settled principles of law.’’> The decision in

this case satisfies these standards for withholding publica-

tion insofar as the Court of Appeal applied the well-settled

principle that a trial judge’s refusal to give a requested

jury instruction is reviewed for abuse of discretion. See

Jackson v. Taylor, 912 F.2d 795, 798 (5th Cir. 1990).

However, the same could not be said of the opinion, if the

Court of Appeal had made a de novo determination of

unsettled Louisiana law under Erie Railroad Co. v. Tom-

5 Local Rule 47.5.1 provides:

47.5.1 Criteria for Publication. The publication of opinions that have

no precedential value and merely decide particular cases on the basis of

well-settled principles of law imposes needless expense on the public and

burdens on the legal profession. However, opinions that in any way in-

terest persons other than the parties to a case should be published if it:

establishes a new rule of law, alters, or modifies an existing rule of

law, or calls attention to an existing rule of law that appears to have

been generally overlooked;

applies an established rule of law to facts significantly different

from those in previous published opinions applying the rule;

explains, criticizes, or reviews the history of existing decisional or

enacted law;

creates or resolves a conflict of authority either within the circuit or

between this circuit and another;

concerns or discusses a factual or legal issue of significant public

interest;

is rendered in a case that has previously been reviewed and its

merits addressed by an opinion of the United States Supreme Court.

An opinion may also be published if it:

is accompanied by a concurring or dissenting opinion;

reverses the decision below or affirms it upon different grounds.”

10

phins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1930).

In support of the application of Louisiana Civil Code

Article 2317, Plaintiffs relied upon the decison of United

States District Judge Veronica D. Wicker in LeBlanc v. K-

Mart Corp., 1993 WL 262645 (E.D. La. 1993), affirmed, No.

93-3503 (5th Cir. 1994). In that case, the Plaintiff was in-

jured in K-Mart’s Houma, Louisiana store, when she slip-

ped on an oily substance. The substance was later deter-

mined to be ‘“‘“Goo-Gone,”’ a petroleum-based cleaning com-

pound that had spilled from a broken bottle on a nearby

shelf. Judge Wicker held that in addition to its liability

under La.R.S. 9:2800.6, K-Mart could be held liable under

Louisiana Civil Code Article 2317, explaining:

“R.S. 9:2800.6 specifically states that it

shall not be construed to affect any liability the

merchant may have under the strict liability ar-

ticles, including La.Civil Code Art. 2317. To

establish liability under Art. 2317, a plaintiff

must prove that the property which caused the

damage was in defendant’s custody, that the pro-

perty was defective because it had a condition

that created an unreasonable risk of harm to per-

sons on the premises, and that the defect on the

property was a cause-in-fact of the resulting in-

jury. In strict liability cases the defendant is

relieved of proving that the owner or person in

custody either knew or should have known of the

defective condition. See Holden v. Winn-Dixie

Louisiana, Inc., 532 So.2d 532 (La.App.1 Cir.

1988).

“Therefore, the Court concludes in the

11

alternative that K-Mart had a defective product

in its care, custody and control — specifically, the

bottle of Goo-Gone which broke — and that the

resultant spill created an unreasonable risk of

harm which caused plaintff’s fall and injury.”’ Jd.,

at 3.

The Court of Appeals rejected Judge Wicker’s deci-

sion in LeBlanc v. K-Mart Corp., supra, as authority for the

proposition that a jury instruction on strict liability was

warranted under the facts of this case, explaining:

“The Fifth Circuit, in another unpublished opi-

nion, affirmed the district court judgment on the

grounds that K-Mart had failed to establish

clean-up procedure. LeBlanc v. K-Mart, 93-3503

at 3 (5th Cir. March 3, 1994). The opinion did not

mention strict liability.

Our research has found no Louisiana

Supreme Court or intermediate appellate court

case that definitively confirms or contradicts the

analysis of 2317 in the LeBlanc lower court’s deci-

sion.”’ [emphasis added.]

An Erie determination of state law for which there is

no “‘definitively’’ confirming® or contradictory state court

6 The Court of Appeais also rejected Schexnider v. Winn Dixie Loui-

siana, Inc., 490 So.2d 1095 (La.App.3rd Cir. 1986), writ denied 491 So.2d

381 (La. 1986) as adequate authority for the application of Louisiana

Civil Code Article 2317 on the grounds that although the Plaintiff in

that case had argued its application to a leaking bottle, the court did not

impose liability under Article 2317, because it found that there was no

evidence of a defect in the bottle.

12

authority can hardly be deemed a ‘“‘well-settled principle of

law.”’ If the Court of Appeal had engaged in a de novo

determination of state law, as opposed to simply explaining

the basis for its deferential finding that the District Court

had not ‘‘abused its discretion,”’ it would surely have deem-

ed its decision worthy of publication under the criteria set

forth in its Local Rule 47.5.

In Wilson v. Seiter,’ this Court held that the

“deliberate indifference’ standard applied to medical care

in Estelle v. Gamble® applies generally to prisoner

challenges to conditions of confinement, rather than the

more stringent ‘‘wantonness’”’ standard, which was applied

to a claim of cruel and unusual punishment in Whitley v.

Albers.? The Court vacated the judgment of the court of

appeal in that case and remanded it for reconsideration

under the appropriate standard, explaining:

“After disposing of the three claims on the

basis of Rhodes, the Court of Appeals proceeded

to uphold the District Court’s dismissal of peti-

tioner’s remaining claims on the ground that his

affidavits failed to establish the requisite

culpable state of mind. The critical portion of its

opinion reads as follows:

‘(T]he Whitley standard of obduracy and

wantonness requires behavior marked by

persistent malicious cruelty. The record

7 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).

8 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976).

9 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986).

13

before us simply fails to assert facts sug-

gesting such behavior. At best, appellants’

claim evidences negligence on appellees’

parts in implementing standards for main-

taining conditions. Negligence, clearly, is in-

adequate to support an eighth amendment

claim.’ 893 F.2d, at 867.

It appears from this, and from the consistent

reference to ‘the Whitley standard’ elsewhere in

the opinion, that the court believed that the

criterion of liability was whether the respondents

acted ‘maliciously and sadistically for the very

purpose of causing harm,’ Whitley, 475 U.S., at

. 320-321, 106 S.Ct., at 1085. To be sure, mere

i negligence would satisfy neither that nor the

more lenient ‘deliberate indifference’ standard, so

. that any error on the point may have been

harmless. Conceivably, however, the court would

have given further thought to its finding of ‘[a]t

; best. . negligence’ if it realized that was not mere-

ly an argument a fortiori, but a determination

almost essential to the judgment. Out of an abun-

dance of caution, we vacate the judgment of the

Sixth Circuit and remand the case for recon-

| sideration under the appropriate standard.” Jd.,

111 S.Ct., at 2327-28.

The reasoning applies in this case and supports the

same result. In Salve Regina College v. Russell, supra, the

Court recognized that in most cases an appellate court’s ap-

plication of a deferential standard of review would be

harmless, because ‘“‘the mandate of independent review will

alter the appellate outcome only in those few cases where

the appellate could would resolve an unsettled issue of

state law differently from the district court’s resolution,

CO ld APE RE eat

14

but cannot conclude that the district court’s determination

constitutes clear error.”’ IJd., 111 S.Ct., at 1224. Never-

theless, the Court held that ‘‘[w]hen de novo review is com-

pelled, no form of appellate deference is acceptable.” Id.

This is so, because “‘[iJndependent appellate review of legal

issues best serves the dual goals of doctrinal coherence and

economy of judicial administration.”” Jd, 111 S.Ct., at

1221.

Whether or not the Court of Appeal would have

reached a different result upon reviewing the District

Court’s determination of underlying Louisiana law de novo

it is conceivable that the Court of Appeal would have given

further thought to its finding if it had realized that rather

than evaluating an exercise of the District Court’s discre-

tion, it was making a definitive determination of Louisiana

law under Erie. The judgment of the Court of Appeals

‘should therefore be vacated, and this matter should be

remanded for reconsideration under the appropriate stan-

dard, as was done in Wilson v. Seiter, supra.

CONCLUSIONS

The duty of the Court of Appeals to review the

District Court’s determinations of state law de novo has

been clearly established by this Court’s decision in Salve

Regina College v. Russell, supra. The perceived benefits of

plenary appellate review have been deemed sufficient to

support the imposition of a rule, which admits to no excep-

tion for “‘harmless error.”’

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The language of the Fifth Circuit’s opinion in this

case and the decision not to publish it clearly indicate that

de novo review was not performed in this case. The judg-

ment of the Court of Appeals should therefore be vacated,

and this matter should be remanded for reconsideration

under the appropriate standard of review.

Respectfully submitted,

CURTIS & LAMBERT

(A Professional Law Corporation)

LAWRENCE N. CURTIS

201 Rue Iberville, Suite 300

Post Office Box 80247

Lafayette, Louisiana 70598-0247

Telephone: (318) 235-1825

Counsel for Petitioners, Linus

Duane Romero, Sr. and Darlene Romero

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A-1

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-40378

Summary Calendar

FILED

JAN 05 1995

DUANE LINUS ROMERO, SR., DARLENE

ROMERO and LINUS DUANE ROMERO, SR..,

as the Administrator of the Estate

of his Minor Children, LINUS DUANE

ROMERO, JR., BRIDGET ROMERO and

HOPE ROMERO,

Plaintiff-Appellant,

versus

K-MART CORPORATION, d/b/a

K-MART DISCOUNT STORE NO. 7061,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

(6:93-CV-292)

Before JOLLY, WIENER and STEWART, Circuit Judges.

PER CURIAM:*

Linus Romero and his family appeal the judgment of

the district court denying their motion for a new trial on

the basis of the court’s failure to give proffered jury in-

structions on strict liability at trial. For the following

reasons, the judgment of the district court is affirmed.

BACKGROUND

Linus Romero and his family (collectively ‘‘Romero’’)

filed suit against the K-mart Corporation (‘‘K-mart’’) to

recover damages resulting from Linus Romero’s slip and

fall on April 5, 1992 in a K-mart store in New Iberia, Loui-

siana. The slip and fall was caused by motor oil on the floor

of the store’s automotive department.

A jury trial was held on November 18, 1993.

Although the court instructed the jury on Louisiana’s law

of negligence, the court refused, despite Romero’s request,

to instruct the jury on Louisiana’s law on strict liability.

The jury returned a verdict for K-mart. Romero filed a mo-

tion for a new trial based on the court’s failure to give the

proffered jury instructions. The district court denied the

motion. It found that the jury instructions were not war-

ranted by the facts and that the request for the jury in-

structions was untimely. Romero appeals the judgment of

the district court.

* Local Rule 47.5 provides: ‘The publication of opinions that have no

precedential value and merely decide particular cases on the basis of

well-settled principles of law imposes needless expense on the public and

burdens on the legal profession.” Pursuant to that Rule, the Court has

determined that this opinion should not be published.

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A-3

DISCUSSION

Romero slipped and fell in K-mart’s automotive sec-

tion. Motor oil was found on the soles of his shoes and an

open container of motor oil was located on a shelf in the

vicinity of the fall. He alleged in his compiaint that a K-

mart employee escorted him through the area where he slip-

ped and that the store was negligent in permitting the oil

to collect and remain on the automotive department’s floor.

Such carelessness and negligence by the store breached its

duty to him to provide and maintain safe passageways for

its customers. Having been injured as a result of K-mart’s

breach of this duty, Romero sued to recover damages.

Shortly before trial, Romero asserted during the pre-trial

proceedings that he also intended to pursue a strict liabili-

ty claim pursuant to La. Civ. Code art. 2317. Upon objec-

tion by K-mart, the district court denied Romero’s request

for jury instructions on strict liability. The case was tried

on the negligence claim with the jury rendering a judgment

for K-mart.

In order to have a jury instructed on a possible

theory of the case, the instruction must be legally correct,

the theory must be supported by the evidence, and the

desired instruction must be brought to the court’s atten-

tion in a timely manner. Pierce v. Ramsey Winch Co., 753

F.2d 416, 425 n.10 (5th Cir. 1985). A decision not to give a

jury instruction will not be reversed absent an abuse of

discretion. Jackson v. Taylor, 912 F.2d 795, 798 (5th Cir.

1990).

In order to recover under strict liability, a thing

which allegedly caused damages must be under the custody

A-4

of the defendant, the thing must have a defect or a vice, and

the defect or vice must cause the damages. Loescher v.

Parr, 324 So.2d 441 (La. Ct. App. 1976). A defect is some

condition that inheres in the thing as one of its qualities

that creates an unreasonable risk of harm to others. Crane

v. Exxon Corp., USA, 613 So.2d 214, 219 (La. Ct. App.

1992).

Slip and fall cases are usually litigated as accidents

caused by a hazardous condition on the premises or in the

premises. See e.g., Edwards v. K & B Inc., 641 So.2d 1040

(La. Ct. App. 1994); Choyce v. Sisters of Incarnate Word,

642 So.2d 287 (La. Ct. App. 1994); Tobin v. Wal-Mart, 575

So.2d 946 (La. Ct. App. 1991). If the hazardous condition

was in the premises then instructions on strict liability and

negligence are warranted; if the hazardous condition is on

the premises then an instruction only on negligence is war-

ranted. Edwards v. K & B Inc., 641 So.2d 1040, 1044 (La.

Ct. App. 1994).

The merchant’s duty in a slip and fall case, is to keep

his aisles, passageways, and floors in a reasonably safe con-

dition. La. Rev. Stat. § 9:2800.6.! If a hazardous condition

1 The pertinent provisions of La. Rev. Stat. § 9:2800.6 are as follows:

A. A merchant owes a duty to person who uses 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.

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

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A-5

arises that causes a slip and fall, the merchant has the duty

of proving that it was exercising reasonable care through

the existence of adequate clean-up procedures. Courville v.

Piggly Wiggly Bunkie Co., 614 So.2d 1366 (La. Ct. App.

1993). In this case, the motor oil would have been a hazar-

dous condition on the premises warranting instructions on-

ly on negligence and on La. Rev. Stat. § 9:2800.6, which

were the instructions given to the jury, see Marshall v. A

& P Food Co. of Tallulah, 587 So.2d 103, 107 (La. Ct. App.

1991).

The only case brought to our attention that seems to

hold that a jury instruction on strict liability was war-

ranted under these circumstances is the unpublished opi-

nion, LeBlanc v. K-mart Corporation, 1993 WL 262645

(E.D. La. July 2, 1993).2 In LeBlanc, the plaintiff had slip

(footnote 1 continued)

a fall due to a condition existing in or on a merchant’s

premises, the claimant shall have the burden of proving, and

in addition to all other elements of his cause of action, that:

(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; and

(3) The merchant failed to exercise reasonable care.

2 Romero has also cited Schexnider v. Winn Dixie Louisiana, Inc., 490

So.2d 1095 (La. Ct. App. 1986), as support for the proposition that strict

liability is a possible theory of recovery for a slip and fall caused by

leakage from a bottle. The court in that case did not address whether

these facts could support liability under La. Civ. Code art. 2317, it simp-

ly stated that there was no evidence that would support the argument

A-6

ped and fallen in a puddle of a petroleum-based cleaning

product that had spilled from a bottle on a shelf. After a

bench trial, the trial court found the defendant had failed

to meet its burden of proof in establishing the existence of

clean-up procedures for spills, pursuant to its duty under

La. Rev. Stat. § 9:2800.6. Without any citation to authori-

ty, the court also found that the defendant was liable under

La. Civ. Code art. 2317 because the bottle was broken and

therefore defective. Id. at 3. The Fifth Circuit, in another

unpublished opinion, affirmed the district court judgment

on the grounds that K-mart had failed to establish clean-up

procedure. LeBlanc v. K-mart, 93-3503 at 3 (5th Cir. March

3, 1994). The opinion did not mention strict liability.

Our research has found no Louisiana Supreme Court

or intermediate appellate court case that definitively con-

firms or contradicts the analysis of 2317 in the LeBlanc

lower court’s decision. The closest case we have found is

Touissant v. Guide, 414 So.2d 850 (La. Ct. App. 1989). In

this case, the plaintiff’s home had been destroyed by a fire

which had originated from a neighbor’s home. The plaintiff

sued his neighbor under La. Civ. Code art. 2317 on the

theory that the fire was a defect in the home. The court

found that the fire was not a defect because it was not a

quality of the house, but was an extraneous force. Id. at

852. It held that La. Civ. Code art. 2317 was inapplicable

unless the fire had been caused by some quality of the

house. Jd. Similarly, it can be argued that the puncture in

the can is not a quality of the can, but was caused by some

extraneous force, i.e., the K-mart employee or a customer

(footnote 2 continued)

and summarily dismissed plaintiff's arguments. Jd. at 1097.

Pe Si ane ah An AO Baar

A-7

who had punctured the oil can. Thus, liability would not lie

unless some quality of the can caused the puncture.

Given the nature of the evidence presented in this

case and the absence of controlling Louisiana cases suppor-

ting appellant’s position, we cannot say that the district

court abused its discretion in not giving the jury instruc-

tions on strict liability.

CONCLUSION

For the foregoing reasons, the judgment of the

district court is AFFIRMED.

A-8

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-40378

FILED

FEB 15 1995

DUANE LINUS ROMERO, SR., DARLENE ROMERO

and LINUS DUANE ROMERO, SR.., as the

administrator of the estates of his

minor children, LINUS DUANE ROMERO, JR.,

BRIDGET ROMERO and HOPE ROMERO,

Plaintiff-Appellant,

versus

K-MART CORPORATION, d/b/a K-MART DISCOUNT

STORE NO. 7061,

Defendant-A ppellee.

Appeal from the United States District Court for the

Western District of Louisiana

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion 01/05/95, 5 Cir., F.3d )

(February 15, 1995)

Before JOLLY, WIENER and STEWART, Circuit Judges.

RECEIVED - FEB 16 1995

A-9

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no member

of this panel nor Judge in regular active service on the

Court having requested that the Court be polled on rehear-

ing en banc, (FRAP and Local Rule 35) the Suggestion for

Rehearing En Banc is also DENIED.

( ) The Petition for Rehearing is DENIED and the Court

having been polled at the request of one, of the members of

the Court and a majority of the Judges who are in regular

active service not having voted in favor, (FRAP) and Local

Rule 35) the Suggestion for Rehearing En Banc is also

DENIED.

( ) A member of the Court in active service having re-

quested a poll on the reconsideration of this cause en banc,

and a majority of the judges in active service not having

voted in favor, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

/s/ Carl E. Stewart

United States Circuit Judge

CLERK’S NOTE:

SEE FRAP AND LOCAL

RULES 41 FOR STAY OF

THE MANDAT.

A-10

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

FILED

NOV 29 1993

LINUS DUANE CIVIL ACTION

ROMERO, SR. ET AL NO. 93-0292

VERSUS JUDGE SHAW

K-MART CORPORA— MAGISTRATE JUDGE

TION, d/b/a METHVIN

K-Mart Discount Store

No. 7061

JUDGMENT

This action came on for tria! before the Court and a

jury, District Judge John M. Shaw, presiding, and the

issues having been duly tried, and the jury having rendered

its verdict on special interrogatories,

Now, therefore, in accordance with the verdict of the

jury, JUDGMENT IS HEREBY RENDERED in favor of

defendant, K-MART CORPORATION, d/b/a K-Mart Dis-

count Store No. 7061, and against plaintiffs LINUS

RECEIVED

DEC 02 1993

A-11

DUANE ROMERO, SR., DARLENE ROMERO, LINUS

DUANE ROMERO, JR., BRIDGET ROMERO and

HOPE ROMERO dismissing all claims with prejudice, at

plaintiffs’ costs.

Thus Done and signed at Lafayette, Louisiana, this

19th day of November, 1993.

ROBERT H. SHEMWELL

CLERK OF COURT

By: /s/ Ronald G. Weathers

Deputy Clerk

JUDGEMENT ENTERED 11-30-93

BY NC

COPY TO Curtis

MacDonald

APPROVED AS TO FORM:

/s/John Shaw

JOHN M. SHAW

UNITED STATES DISTRICT JUDGE