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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 810

## Text

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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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15

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1779%3A1. Public record. Not legal advice.