Hotard v. Sam's E., Inc.

• Decision Date: 30 June 2021
• Docket Number: CIVIL ACTION NO. 19-304-JWD-EWD
• Parties: KATHERYN HOTARD, ET AL. v. SAM'S EAST, INC., ET AL.
• Court: U.S. District Court — Middle District of Louisiana

KATHERYN HOTARD, ET AL. v. SAM'S EAST, INC., ET AL.

CIVIL ACTION NO. 19-304-JWD-EWD

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

June 30, 2021

RULING AND ORDER

This matter comes before the Court on the Motion for Summary Judgment on Behalf of Sam's East, Inc. ("MSJ") (Doc. 49) filed by Defendant Sam's East, Inc. ("Sam's"). Plaintiffs Katheryn Hotard and Albert Hotard, Jr. ("Plaintiffs") oppose the motion. (Doc. 55.) Sam's has filed a reply. (Doc. 58.) Oral argument is not necessary. The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule. For the following reasons, the MSJ is granted.

I. Relevant Factual Background

A. Introduction

This is a slip and fall case. In short, on or about April 7, 2018,¹ Plaintiff Katheryn Hotard allegedly fell in the parking lot of the Sam's Club store which was located at 1044 N. Mall Drive, Baton Rouge, LA, and which was owned by Defendant Sam's. (See Roberts Aff. ¶¶ 2-4, Doc. 56-2.)

Preliminarily, the Court notes that Plaintiffs violated Middle District of Louisiana Local Civil Rule 56. This rule states in relevant part, "The opposing statement shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement ofmaterial facts and unless a fact is admitted, shall support each denial or qualification by a record citation as required by this rule." M.D. La. LR 56(c) (emphasis added). Local Civil Rule 56 further provides, "The court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts." M.D. La. LR 56(f).

Here, though Sam's complied with its obligation and submitted a Statement of Uncontested Material Facts in Support of [MSJ] (Doc. 49-2) ("SUMF"), Plaintiffs failed to file any opposing statement. Further, while Plaintiffs object to certain paragraphs of the SUMF in their opposition (Doc. 55 at 1-2), they failed to provide any record citations with these objections (or anywhere else in their opposition, for that matter). As a result, all of the statements in the SUMF shall be deemed admitted for purposes of this motion.

Further, Plaintiffs refer to certain testimony and evidence in their brief, but, again, they fail to provide any record citations to any such evidence. As the Fifth Circuit has said:

When evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court. See Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 916 (5th Cir. 1992), cert. denied, 506 U.S. 832, 113 S. Ct. 98, 121 L.Ed. 2d 59 (1992). "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas, 136 F.3d at 458; [Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996)]; Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871, 115 S. Ct. 195, 130 L.Ed.2d 127 (1994); Skotak, 953 F.2d at 916 n. 7; see also Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (it is not necessary "that the entire record in the case . . . be searched and found bereft of a genuine issue of material fact before summary judgment may be properly entered"); cf. U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs"). Because [Plaintiff] didnot identify any evidence of damages in his summary judgment response, the evidence was not properly before the district court and will not be considered here.

Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). Thus, "[w]ithout specific citations to the record, the Court will not consider this [evidence]." Robertson v. Home Depot, Inc., No. 14-806, 2017 WL 1088091, at *2 (M.D. La. Mar. 22, 2017) (deGravelles, J.) (disregarding portions of Plaintiffs' deposition that had not been stricken).

B. Mrs. Hotard's Account

Thus, it is undisputed that Mrs. Hotard could not recall what caused her to fall on April 8, 2018. (SUMF ¶ 4, Doc. 49-2.) This is consistent with Mrs. Hotard's interrogatory responses; when asked to "[s]tate in detail and describe with specificity how this accident occurred," she responded:

On April 8, 2018 [sic] arrived at Sam's started walking across parking lot when I went down with force all at once, a lady approached me checking my head for bruises or blood. Someone went and got the manager, who stood near me with arms folded and did not speak a word, he waited for the ambulance. I was put into the ambulance and driven to Baton Rouge General Hospital, was there the entire day seeking Dr. Waguespack and having x-ray's taken.

(Doc. 49-6 at 4.) Later, Plaintiffs were asked to indicate what they contended Mrs. Hotard fell on, and they responded:

- Residue from trees nearby and avoiding cars in parking lot

- Cracks in the slab of the parking lot

- Small twigs or gravel and/or other environmental debris

- This response may be supplemented as discovery is ongoing

(Id. at 11.)

But, at Mrs. Hotard's deposition, she was asked what she fell on, and she said:

I was - I was - well, with me being there, I was kind of watching the traffic because I was trying to get in the store. But I don't know. It was under the tree. I just - when I felt something onmy shoe, I immediately hit the ground. I don't know if it was the pavement had some kind of that black tar, if it was a twig, because it was near the tree. And it happened so fast, honestly, I don't remember. But my shoe left the ground and 170 pounds hit it before it - it was so quick, I can't tell you what it was.

(Mrs. Hotard Dep. 33-34, Doc. 49-4 at 6-7.) She was also asked if there were any "twigs or branches" on the ground, and she replied there was "debris on the ground" like a "fir-type tree . . . like with needles and stuff, some type of fir." (Id. at 39-40.) She said this looked like "every ordinary debris, little pieces of twig. I think it had some little cone-type things because it looked like that was on the ground, but just regular debris." (Id. at 40.) She then said:

Q. When did you first notice that debris?

A. When I was approaching the tree, I saw it, but it didn't - it didn't bother me because I walk all the time and it wasn't nothing I would have been afraid to walk through. But as to say exactly what it was, I really can't tell you.

Q. So you're not sure if you actually tripped on that debris that you're referring to?

A. Correct. Yes.

(Id. at 40-41.)

Finally, Mrs. Hotard saw a crack in the pavement that "had some black tar in it." (Id. at 40.) However, she did not recall whether she tried to walk around it or over it. (Id. at 41.)

C. Other Evidence Related to the Fall

Additionally, it is undisputed that Mr. Hotard did not witness Mrs. Hotard trip on the day of the accident. (SUMF ¶ 6, Doc. 49-2.) He also did not see a crack or anything on the ground that may have caused her to trip. (Id. ¶ 7.)

Further, on the day in question, Donald Roberts was working at the Sam's Club store in question as a Specialty Manager. (Roberts Aff. ¶¶ 2-3, Doc. 56-2.) Roberts saw Mrs. Hotardsitting on the ground near the handicap parking area on that day after she allegedly tripped and fell in the parking lot. (Id. ¶ 4.) Plaintiffs did not inform Roberts how Mrs. Hotard tripped and fell in the parking lot. (SUMF ¶ 8, Doc. 49-2.) Furthermore, he did not observe any broken, uneven or unlevel area of the parking lot around where Mrs. Hotard was sitting. (Id. ¶ 9.) Roberts did not recall any other trip and falls in the parking lot around where Mrs. Hotard allegedly fell. (Id. ¶ 10.)

Lastly, Malea Myers was employed as a Personnel Training Coordinator at the Sam's store during this time, though she was not working at the store on that particular day. (Myers Aff. ¶¶ 2-3, Doc. 49-8.) On or about the day after the incident, while Myers was working at the store, Myers received a phone call from Mrs. Hotard. (Id. ¶ 4.) Mrs. Hotard told Myers that she fell in the parking lot. (Id.) However, it is undisputed that Mrs. Hotard had no idea how the accident occurred nor how she fell. (SUMF ¶ 11, Doc. 49-2.) It is also undisputed that Meyers did not recall any broken, uneven or unlevel portions of the parking lot around where Mrs. Hotard allegedly fell and that Meyers did not recall any other trip and falls in the parking lot around where Mrs. Hotard allegedly fell. (Id. ¶¶ 12-13.)

II. Rule 56 Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). If the mover bears its burden of showing that there is no genuine issue of fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal citations and emphasis omitted). The non-mover's burden is not satisfied by "conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence." Little v.Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations and internal quotations omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.' " Matsushita Elec. Indus. Co., 475 U.S. at 587 (internal citations omitted). Further:

In resolving the motion, the court may not undertake to evaluate the credibility of the witnesses, weigh the

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