Leggett v. Dolgencorp LLC et al, No. 2:2016cv17264 - Document 38 (E.D. La. 2017)
Court Description: ORDER AND REASONS denying 14 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 10/24/2017. (cg)
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Leggett v. Dolgencorp LLC et al Doc. 38 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA REBECCA LEGGETT CIVIL ACTION VERSUS NO. 16-17264 DOLGENCORP, LLC d/ b/ a DOLLAR GENERAL SECTION “R” (3) ORD ER AN D REASON S Before the Court is defendant’s m otion for sum mary judgm ent. 1 For the following reasons, the Court denies defendant’s m otion. I. BACKGROU N D On December 16, 20 15, plaintiff Rebecca Leggett slipped and fell at a Dollar General store in Luling, Louisiana. 2 Because it rained that day, the floor near the store entrance was allegedly wet. 3 Plaintiff, who was wearing flip flops, slipped and fell shortly after entering the store. 4 Specifically, plaintiff asserts that, as she stepped off the floor m at, her foot slipped on a sm all puddle of water on the floor, causing her to fall and sustain injuries. 5 1 2 3 4 5 R. Doc. 14. R. Doc. 14-5 at 1. R. Doc. 14-2 at 8. Id. at 8, 12. R. Doc. 25 at 1. 1 Dockets.Justia.com Plaintiff testified at a deposition that the puddle on which she slipped was about eighteen inches in diameter. 6 Plaintiff’s daughter, Shirley Cornwell, also testified that there were tracks and puddles of water near the entrance of the store. 7 On Novem ber 9, 20 16, plaintiff sued defendant DG Louisiana, LLC in Louisiana state court. 8 Plaintiff alleged that the slippery floor at the Dollar General store constituted an unreasonably dangerous condition, and that defendant was negligent in failing to prevent the dangerous condition and failing to warn of the danger. 9 Defendant rem oved the case to this Court on December 13, 20 16, on the basis of diversity of citizenship. 10 Defendant now m oves for summ ary judgm ent. 11 II. STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 6 R. Doc. 14-2 at 20 . R. Doc. 14-3 at 4-5. 8 R. Doc. 1-1. Plaintiff also sued Dolgencorp, LLC and Dollar General Corporation, but has since stipulated to their dism issal. R. Doc. 34. 9 R. Doc. 1-1 at 2. 10 R. Doc. 1 at 3. 11 R. Doc. 14. 2 7 Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. A dispute about a m aterial fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonm oving party.” Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 248 (1986). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s 3 evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). III. D ISCU SSION In Louisiana, a plaintiff seeking dam ages against a m erchant because of a fall on its prem ises has the burden of proving that a condition on the prem ises presented an unreasonable risk of harm , that this harm was 4 reasonably foreseeable, that the merchant either created or had actual or constructive notice of the condition, and that the m erchant failed to exercise reasonable care. La. R.S. § 9:280 0 .6(B). To establish constructive notice, the plaintiff m ust prove “that the condition existed for such a period of tim e that it would have been discovered if the m erchant had exercised reasonable care.” Id. § 9:280 0 .6(C). The burden is on the plaintiff to “m ake a positive showing of the existence of the condition” for “som e tim e period prior to the fall.” W hite v. W al-Mart Stores, 699 So. 2d 10 81, 10 84-85 (La. 1997); see also Duncan v. W al-Mart La., L.L.C., 863 F.3d 40 6, 410 (5th Cir. 20 17) (affirm ing sum m ary judgment against plaintiff where plaintiff presented no evidence of “how water cam e to be under the floor m at nor how long it had been there before her fall”). But the plaintiff m ay prove this tem poral elem ent with either direct or circum stantial evidence. See Flow ers v. W al-Mart Stores, Inc., 99 So. 3d 696, 699 (La. App. 5 Cir. 20 12). Defendant contends that it is entitled sum m ary judgment because plaintiff has produced no evidence of actual or constructive notice of the allegedly hazardous puddle of water on the floor. 12 Defendant also points to video footage which it argues shows no puddles on the floor before plaintiff 12 R. Doc. 14-1 at 10 -12. 5 slipped. 13 According to defendant, a liquid substance appeared on the floor only after plaintiff fell, suggesting that plaintiff herself tracked water into the store on the bottom of her flip flops. 14 Defendant further points to the depositions of both plaintiff and her daughter. Neither individual could provide any information as to how long the puddle existed before plaintiff fell, or any inform ation to suggest that Dollar General em ployees created the puddle or knew about it before the accident. 15 After defendant moved for sum m ary judgm ent, the parties took the deposition of Xavier Dabon, the m anager on duty of the Dollar General store at the tim e of the accident. 16 Dabon explained that “because of the way the building was set up, whenever it rained, . . . the store . . . got pretty flooded, especially around the entrance area.”17 Custom ers would track in water, m aking “the entrance inside of the store pretty slippery.”18 Dabon would put down cardboard when the floor m at becam e saturated. 19 13 Id. at 11. Id.; R. Doc. 14-4; Video at 10 :10 . 15 R. Doc. 14-2 at 22-23; R. Doc. 14-3 at 6-7. 16 The Court granted plaintiff’s consent m otion to continue the subm ission date for defendant’s sum mary judgment m otion in order to allow the parties to take this deposition. See R. Docs. 17, 18. 17 R. Doc. 25-4 at 25. 18 Id. at 27. 19 Id. at 42. 6 14 Dabon recalled that it rained hard on the day of the accident. 20 When he started his shift in the afternoon, he wiped up water near the store entrance with towels and cardboard, but he said that the floor was not com pletely dry afterward. 21 Dabon testified that it rained again that day, and that the floor near the entrance becam e wet before plaintiff fell. 22 At one point in the deposition, Dabon stated that he could not rem ember whether there was water on the floor near the entrance “that would have m ade [plaintiff] fall.”23 Later in the deposition, however, Dabon stated that he “knew that there was water on the floor” before plaintiff fell, and adm itted, “I knew that there was water at the entrance, but I guess through the day of m e doing other things that I just didn’t get around to getting it up.”24 Dabon also conceded that “the water at the entrance near where [plaintiff] fell had been there for some tim e and [he] knew about it,” but that he “just didn’t have tim e to get to it.”25 Further, Dabon indicated that it was likely the floor m at had been saturated for at least ten to fifteen m inutes before plaintiff’s 20 21 22 23 24 25 Id. at Id. at Id. at Id. at Id. at Id. at 70 . 70 -71, 85. 72-73. 50 . 74. 73-74. 7 fall, although Dabon could not actually remember whether it was saturated at that point. 26 Dabon’s deposition testim ony creates a genuine dispute as to actual notice. An em ployee’s knowledge that a surface rem ains, or is likely to rem ain, wet is sufficient to show actual notice of a hazardous condition. In Jones v. Super One Foods/ Brookshires Grocery Co., 774 So. 2d 20 0 (La. App. 2 Cir. 20 0 0 ), for example, an em ployee m opped up a spill near a store entrance about fifteen to thirty m inutes before the plaintiff’s fall. The plaintiff contended that she slipped on the floor m at, which squished out liquid when she stepped on it. Id. at 20 5. The employee testified that liquid could seep under the floor m at and be squished out in this way, and acknowledged that the entrance area rem ained wet at the tim e of the accident. Id. at 20 6. The court held that this testim ony sufficed to show actual notice of the hazard. Id. Like the em ployee in Jones, Dabon knew that the Dollar General store entrance was wet at som e point in tim e before plaintiff fell. He used towels and cardboard to clean up the water when he started his shift in the afternoon, but testified that it rained again, and that the floor m at would 26 Id. at 77. 8 becom e saturated after only ten to fifteen m inutes of steady rain. 27 Given the rainfall on the day of the accident, Dabon opined that the m at was likely saturated at the tim e of plaintiff’s fall, and that “water most likely did come back in the store” by that point. 28 Adm ittedly, Dabon could not recall whether there was a puddle in the specific location where plaintiff slipped. 29 But Dabon, like the em ployee in Jones, had reason to believe that the floor near the store entrance was generally wet at the time of the accident. 30 This evidence is sufficient to create an issue of m aterial fact as to actual notice under Louisiana Revised Statutes § 9:280 0 .6(B). There is also a genuine dispute as to defendant’s constructive notice. To establish constructive notice, plaintiff m ust show that the puddle on which she slipped existed for some period of tim e before her fall. W hite, 699 So. 2d at 10 84-85. Several pieces of evidence support this showing. First, as discussed earlier, Dabon’s deposition testim ony establishes that the store entrance was wet from rain when he started his shift in the afternoon. Dabon further testified that the floor was not com pletely dry even after he cleaned it up, and that it rained and the entrance area becam e wet again before 27 28 29 30 Id. at Id. at Id. at Id. at 70 -71, 68. 77, 90 50 . 74. 9 plaintiff fell. 31 Even if Dabon were not actually aware of puddles near the store entrance at the tim e of plaintiff’s fall, his testim ony suggests that the floor was wet for such a period of tim e that he would have discovered the puddles had he exercised reasonable care. Second, that the puddle was eighteen inches in diameter, as plaintiff testified in her deposition, suggests that water had collected there for some period of tim e. See Rodgers v. Food Lion, Inc., 756 So. 2d 624, 628 (La. App. 2 Cir. 20 0 0 ) (plaintiff’s testim ony that puddle was sizable—three feet in diam eter—indicated that “puddle had been on the floor long enough that Food Lion em ployees should have discovered it with the exercise of reasonable care”). Third, that there were tracks of water on the floor, as Cornwell testified, also suggests that water was present for a period of time long enough for other individuals to make the tracks. See Luft v. W inn Dixie Montgom ery , LLC, -- So. 3d --, 20 17 WL 510 995 at *7 (La. App. 5 Cir. 20 17) (“Other types of evidence held sufficient to show that a condition has existed for some period of tim e include footprints, shopping cart tracks, or dirt in a spilled substance.”). Together, these circum stances suffice to create an issue of m aterial fact as to whether the puddle on which plaintiff slipped and fell existed for some period of tim e before the accident. 31 Id. at 72-73, 85. 10 That the puddle on which plaintiff allegedly slipped is not visible in the video footage does not m ean that no reasonable jury could return a verdict for plaintiff, as defendant argues. 32 As an initial m atter, both plaintiff and Cornwell testified that the puddle was clear. 33 Moreover, a dark area on the floor, which defendant concedes is a puddle, appears in the video footage after plaintiff’s fall. 34 While defendant contends that plaintiff’s flip flop left this water on the floor, it is also plausible that plaintiff’s foot pushed water forward from its original location to where it is visible on the surveillance footage. 35 Indeed, the puddle that becom es visible after plaintiff’s fall is located not where plaintiff actually slipped (closer to the floor m at), but where her right foot rested when plaintiff fell (farther from the floor m at). The existence of a puddle closer to the floor m at at the tim e of plaintiff’s fall accords with Dabon’s testim ony that the floor mat was likely saturated at that point. 36 Defendant also fails to explain why plaintiff, but no other individual entering the store, tracked in so m uch water that she created a puddle. The Court finds that the video footage does not conclusively establish that no puddle existed near the store entrance before plaintiff’s accident. 32 33 34 35 36 R. Doc. 14-1 at 11 (citing Anderson, 477 U.S. at 248). R. Doc. 14-2 at 21; R. Doc. 14-3 at 4. Com pare Video at 9:40 , w ith Video at 10 :10 . R. Doc. 14-1 at 4. R. Doc. 25-4 at 77, 84. 11 Because plaintiff has put forth evidence creating an issue of m aterial fact as to both actual and constructive notice, defendant is not entitled sum m ary judgment. IV. CON CLU SION For the foregoing reasons, the Court DENIES defendant’s m otion for sum m ary judgment. New Orleans, Louisiana, this _24th _ day of October, 20 17. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 12
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