Duncan v. Wal-Mart Louisiana, L.L.C., 071417 FED5, 16-31223

Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
Judge Panel:Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
Opinion Judge:STEPHEN A. HIGGINSON, CIRCUIT JUDGE:
Party Name:SHAMSEY DUNCAN; CHARLES JOHNSON, Plaintiffs - Appellants v. WAL-MART LOUISIANA, L.L.C., doing business as Wal-Mart Store No. 376; REDDY ICE CORPORATION, Defendants - Appellees
Case Date:July 14, 2017
Docket Nº:16-31223
 
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SHAMSEY DUNCAN; CHARLES JOHNSON, Plaintiffs - Appellants

v.

WAL-MART LOUISIANA, L.L.C., doing business as Wal-Mart Store No. 376; REDDY ICE CORPORATION, Defendants - Appellees

No. 16-31223

United States Court of Appeals, Fifth Circuit

July 14, 2017

         Appeal from the United States District Court for the Western District of Louisiana

          Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

          STEPHEN A. HIGGINSON, CIRCUIT JUDGE:

         Shamsey Duncan, a Wal-Mart employee in Bossier City, Louisiana, fell in front of a Reddy Ice freezer at work when Duncan was pregnant. Duncan had a stillbirth the next day, and she and her child's father sued Wal-Mart and Reddy Ice. A magistrate judge in the Western District of Louisiana granted summary judgment in favor of Wal-Mart and Reddy Ice. We affirm.

         I

         On June 7, 2014, Shamsey Duncan, who was pregnant at the time, reported to work at Wal-Mart in Bossier City, Louisiana, where she slipped on a mat in front of a Reddy Ice freezer and fell forward onto the ground. Duncan's "hands w[ere]n't that wet when [she] got up; so [she] c[ould]n't say the top of the rug was wet." But she noticed the mat shifted when she fell, and she saw water "under the mat." Duncan "didn't see any water on the outside of the rug. Just . . . under the mat."

         Later that afternoon, Duncan felt unwell and went to a hospital. There, hospital staff said her unborn child had no heartbeat, and they induced labor for Duncan's stillborn baby the next day.

         On June 3, 2015, Duncan and her child's father, Charles Johnson, sued Wal-Mart for the wrongful death of their unborn child.1 Wal-Mart removed the case, and Duncan and Johnson later amended their complaint, adding Reddy Ice as a defendant. The parties consented to have their case heard before a magistrate judge, who took over the litigation on May 18, 2016. Wal-Mart and Reddy Ice both moved for summary judgment, and the magistrate judge granted both motions, explaining: Plaintiff did not testify regarding any evidence that a Wal-Mart or Reddy Ice agent or employee actually created the liquid hazard beneath the mat. Plaintiff also has no evidence that Wal-Mart or Reddy Ice had actual or constructive notice of the liquid under the mat. Plaintiff testified that the liquid was completely beneath the mat, so it was not visible to any store employees who might have been in the area. There is not even an indication that an employee could have seen from above that the mat was damp.

There is also a complete lack of evidence that the water was present for any period of time during which a reasonable merchant should have discovered the condition. There is nothing but complete speculation regarding how the water got there and how long it had been there. . . . "[M]ere speculation or suggestion" is not sufficient to meet the plaintiff's burden on this issue . . . .

         Duncan and Johnson timely appealed, arguing only that the district court incorrectly applied Louisiana's merchant liability statute to their negligence...

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