Boles v. Wal-Mart Stores, Inc., CIVIL ACTION NO. 15-373-EWD

• Decision Date: 17 June 2016
• Docket Number: CIVIL ACTION NO. 15-373-EWD
• Parties: DARREN W. BOLES v. WAL-MART STORES, INC. AND WAL-MART LOUISIANA, LLC
• Court: U.S. District Court — Middle District of Louisiana

DARREN W. BOLES v. WAL-MART STORES, INC. AND WAL-MART LOUISIANA, LLC

CIVIL ACTION NO. 15-373-EWD

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

June 17, 2016

RULING ON MOTION FOR SUMMARY JUDGMENT

Before the Court is a Motion for Summary Judgment¹ filed by defendants, Wal-Mart Stores, Inc. and Wal-Mart Louisiana, LLC (collectively, "Defendants" or "Wal-Mart"). Plaintiff, Darren W. Boles ("Plaintiff") has filed an opposition,² and Wal-Mart has filed a reply.³ For the reasons set forth herein, Wal-Mart's Motion for Summary Judgment⁴ is GRANTED.⁵

I. Background

In this personal injury action, Plaintiff alleges he sustained injuries and damages after he slipped and fell on a clear liquid substance at Defendants' store located in Gonzales, Louisiana on or about July 30, 2014.⁶ In his deposition, Plaintiff testified that he slipped and fell in theautomotive department⁷ while shopping for seat covers and floor mats for his truck.⁸ Although he testified that he was unable to determine what caused him to fall, he stated that he "had an oily-type substance on [his] body and clothes."⁹ During his deposition, he identified a photo of a clear liquid "with a smear mark" which he believed represented what the area of his accident looked like and agreed that the liquid looked "sort of splattered."¹⁰ He also testified that the area of the splatter was "[a] foot-and-a-half, 2 foot" big.¹¹ He stated he had no idea how long the substance had been on the floor¹² and that he did not see anything before he slipped.¹³

Based on the foregoing testimony, Defendants argue that Plaintiff cannot establish that Wal-Mart created or had actual or constructive notice of the liquid on the floor prior to the slip and fall.¹⁴ Because Plaintiff cannot establish this necessary element of his claim, Defendants request the Court grant summary judgment in their favor.

In response, Plaintiff argues that circumstantial evidence establishes that Defendants had constructive notice of the condition.¹⁵ Specifically, Plaintiff argues that: (1) video surveillanceestablishing a gap of approximately thirty minutes immediately prior to the accident in which no one spilled the protectant; (2) the size of the spill when considered in light of an adverse presumption that the substance leaked out of the bottle slowly; and (3) the lack of employees staffing the area and failure to perform inspections in accordance with Defendants' own inspection procedures provide sufficient circumstantial evidence to carry Plaintiff's burden of establishing that the spill existed for some period of time.¹⁶

II. Law and Analysis

A. Summary Judgment Standard

Summary judgment shall be granted when there are no genuine issues as to any material facts and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. When a motion for summary judgment is properly made and supported under Rule 56(c), the opposing party may not rest on the mere allegations of its pleadings, but rather must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(c)(1). The non-movant's evidence is to be believed for purposes of the motion and all justifiable inferences are to be drawn in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, summary judgment must be entered against the plaintiff, on a properly supported defense motion, if the plaintiff fails to make an evidentiary showing in its opposition to the motion sufficient to establish the existence of an element essential to its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Without a showing sufficient to establish the existence of an element essential to a plaintiff's claim, there can be "no genuine issue as to any material fact since a complete failureof proof concerning an essential element of the nonmoving party's case necessarily renders all facts immaterial." Id. at 323 (quotations omitted).

B. Negligence Claims Against Merchants Under La. R.S. § 9:2800.6

Because the Court's subject matter jurisdiction is based on diversity, Louisiana substantive law applies. Erie R. Co. v. Thompkins, 304 U.S. 64, 78-80 (1938). "The substantive law determines which facts are material." Littlefield v. Forney Independent School Dist., 268 F.3d 275, 282 (5th Cir. 2001).

Louisiana Revised Statute § 9:2800.6 governs negligence claims brought against a merchant. See, Davis v. Wal-Mart Stores, Inc., 774 So. 2d 84, 89 (La. 2000). The statute provides, in pertinent part:

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 proving, in addition to all other elements of his cause of action, all of the following:

(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.

(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

The statute goes on to define "constructive notice" to mean that "the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that theemployee knew, or in the exercise of reasonable care should have known, of the condition." La. R.S. § 2800.6(C)(1). The Louisiana Supreme Court has held that "[b]ecause the statute is clear and unambiguous and contains no provision for shifting the burden to the defendant to prove his lack of culpability...it is the plaintiff's burden to prove each element of her cause of action under La. R.S. 9:2800.6(B)." White v. Wal-Mart Stores, Inc., 699 So. 2d 1081, 1082 (La. 1997). This Court has granted summary judgment where a plaintiff could not set forth positive proof of a merchant's actual or constructive notice. See, Johnson v. Wal-Mart Stores, Inc., 2014 WL 7359051 (M.D. La. Dec. 23, 2014) (granting summary judgment where plaintiff had no information to suggest that defendant had actual notice of spill and presented insufficient evidence to establish that the spill existed for such a period of time to constitute constructive notice); Fuller v. Wal-Mart Stores, LLC, 2013 WL 4094319 (M.D. La. Aug. 13, 2013) (same).

In response to Defendant's Motion for Summary Judgment, Plaintiff does not argue that Wal-Mart created or had actual notice of the spill. Instead, Plaintiff focuses on "the element of constructive notice found in Subsection B(2) of the Merchant Liability Act" and asserts that the circumstantial evidence raises a genuine issue of material fact as to whether Defendant had constructive notice of the spill.¹⁷

C. Constructive Notice

"Constructive notice" "means the plaintiff has proven "that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." La. R.S. § 9:2800.6(C)(1). "[B]ecause constructive notice is plainly defined to include a mandatory temporal element...a claimant must come forward with positive evidence that the damage-causing condition existed for some period of time, and that such time was sufficient to place the merchant defendant on notice of its existence." White v. Wal-Mart Stores, Inc., 699 So. 2d 1081, 1082 (La. 1997). "The statute does not allow for the inference of constructive notice absent some showing of this temporal element. The claimant must make a positive showing of the existence of the condition prior to the fall. A defendant merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall." Id. at 1084. In sum, "[a] claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute." Id.

1. Video Surveillance

Plaintiff relies on the deposition testimony of Jacob Para, an assistant manager at the store on the day of the accident, discussing security footage¹⁸ of the area of the accident to support his position that at least thirty minutes passed between the spill of the tire protectant and Plaintiff's accident.¹⁹ Plaintiff asserts that his slip and fall occurred at 4:10 pm.²⁰ As Plaintiff explains:

From 3:42 pm to 3:43 pm until 4:07 an individual in an orange shirt is seen walking down the aisle and past where the spill occurred, but Mr. Para agreed that the individual appears to walk through the area and does not appear to touch any of the items on the shelves. Nosafety sweeps occurred from 3:42 until 4:07, despite procedure calling for one at 4:00 pm. Para agrees that if the individual in the orange shirt did not spill the tire protectant, that the spill would have been on the floor for more than thirty minutes prior to Mr. Boles's accident, assuming no one entered and exited the aisle from the other direction which would have been off camera.²¹

The Court finds Plaintiff's interpretation of the video surveillance and his conclusion that at least a thirty minute gap in time existed between the spill and Plaintiff's accident to be unpersuasive.

First, the video surveillance does not show Plaintiff's fall²² or the section of the aisle where the accident occurred.²³ Courts considering such evidence have found it insufficient to carry Plaintiff's burden of...