Gordon v. Dolgencorp, LLC, No. 2:2016cv15279 - Document 19 (E.D. La. 2017)
Court Description: ORDER AND REASONS regarding 16 Motion for Summary Judgment. For the foregoing reasons, defendant's motion for summary judgment is GRANTED. Plaintiff's complaint is DISMISSED. Signed by Judge Sarah S. Vance on 8/29/2017. (cg)
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Gordon v. Dolgencorp, LLC Doc. 19 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DORIS GORDON CIVIL ACTION VERSUS NO. 16-15279 DOLGENCORP, LLC d/ b/ a DOLLAR GENERAL SECTION “R” (5) 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 grants the m otion. I. BACKGROU N D On March 11, 20 16, Plaintiff Doris Gordon slipped and fell at a Dollar General store in Marrero, Louisiana. 2 Plaintiff initially entered the store without difficulty and purchased some m erchandise. 3 After leaving the store, she decided that she wanted to get som e change to pay a bill and reentered the store. 4 Because it rained that day, the interior m at at the store entrance was allegedly soaked with water. 5 Plaintiff asserts that her shoe became wet 1 2 3 4 5 R. Doc. 16. R. Doc. 17 at 1. R. Doc. 16-3 at 10 -11, 13. Id. at 11. R. Doc. 17 at 1. Dockets.Justia.com after she stepped on the water-saturated m at while reentering the store, causing her to slip on the store’s floor and sustain injuries. 6 On August 18, 20 16, plaintiff filed suit for dam ages against Defendant DG Louisiana, LLC7 in Louisiana state court. 8 Plaintiff alleged that the slippery floor at the Dollar General store constituted an unreasonably dangerous condition and that defendant acted negligently in failing to remedy or warn of the danger. 9 On October 6, 20 16, defendant rem oved the m atter to this Court on the basis of com plete diversity of citizenship. 10 Defendant now m oves for sum m ary judgm ent. 11 II. LEGAL 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. 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 6 Id. at 1-2. Defendant was incorrectly designated as Dolgencorp, LLC d/ b/ a Dollar General. See R. Doc. 1 at 1. 8 Id.; R. Doc. 1-1. 9 R. Doc. 1-1 at 1-2. 10 R. Doc. 1 at 1-3. 11 R. Doc. 16. 7 2 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. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-m oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). 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 pointing out that the evidence in the record is insufficient with respect to an essential element 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 3 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 A. Co n s tru ctive N o tice In Louisiana, a plaintiff seeking dam ages against a m erchant because of a fall on their prem ises has the burden of proving that a condition on the prem ises presented an unreasonable risk of harm , that this harm was 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.” La. R.S. 9:280 0 .6(C). Defendant contends that sum mary judgm ent is warranted in this m atter because plaintiff has not produced evidence that it had actual or constructive notice of the allegedly hazardous water-saturated floor m at. 12 12 R. Doc. 16-2 at 3. 4 The Louisiana Supreme Court has m ade clear that, to recover against a m erchant, a “claim ant m ust m ake a positive showing of the existence of the condition” for “some 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, 863 F.3d 40 6, 410 (5th Cir. 20 17) (affirm ing sum m ary judgm ent against plaintiff where plaintiff presented no evidence of “how water came to be under the floor m at nor how long it had been there before her fall”). Here, plaintiff adm itted in her deposition testim ony that she had no inform ation regarding how long the floor m at had been wet, nor whether any Dollar General employees knew that the floor m at was wet. 13 She further testified that she did not notice whether the floor m at was wet when she initially entered and exited the store. 14 Plaintiff instead posits that the floor m at could not have become saturated with water im m ediately and water m ust therefore have collected in the mat over an extended period of tim e. 15 But plaintiff m ust show that the hazardous condition existed for a period of tim e, not that the hazard developed over tim e. Defendant’s store m anager testified that the floor m at is provided for custom ers to wipe their 13 14 15 R. Doc. 16-3 at 13-14. Id. at 13. R. Doc. 17 at 11-12. 5 feet on rainy days. 16 Plaintiff contends that, at some point, “the floor m at at the entrance to the store was so soaked with water that it was no longer serving to dry off patrons’ feet, but instead it was acting to create a hazard by wetting patrons’ shoes.”17 Plaintiff cannot, however, identify w hen the m at allegedly transformed from a helpful precaution to a hazardous condition. That the m at absorbed som e water before plaintiff’s fall does not establish that the m at was unreasonably dangerous for a period of tim e before the fall. Moreover, rainy weather conditions alone are insufficient to establish constructive notice. Under sim ilar factual circum stances, the Louisiana Suprem e Court held that a plaintiff failed to prove constructive notice where he “produced evidence showing that the general area where he fell was within view of a custom er service podium and that it was raining on the evening in question” but “presented absolutely no evidence as to the length of tim e the puddle was on the floor before his accident.” Kennedy v. W al-Mart Stores, 733 So. 2d 1188, 1191 (La. 1999); see also Pollet v. Sears Roebuck & Co., 45 F. App’x 226, 20 0 2 WL 1939917, at *6 (5th Cir. 20 0 2) (explaining that rainy weather does not change plaintiff’s burden to show tem poral element of constructive notice); Gray v. Shoney ’s Inc., 192 F.3d 125, 1999 WL 68380 6, 16 17 R. Doc. 17-3 at 25-26. R. Doc. 17 at 11. 6 at *1 (5th Cir. 1999) (finding that rainy conditions and “Wet Floor” signs in restaurant were insufficient to establish actual or constructive knowledge of water puddle in hallway). Like the plaintiff in Kennedy , plaintiff here fails to provide any evidence of constructive notice apart from her contention that it was raining outside and that the store cashier should have known that the m at was wet. 18 See Kennedy , 733 So. 2d at 1189 (finding insufficient plaintiff’s claim that he “‘thought’ one of the cashiers should have been able to see whatever was on the floor”); W hite, 699 So. 2d at 10 85-86 (explaining that it was error to assume that employee could have noticed a spill when plaintiff “did not notice it after having traversed the area twice”). Plaintiff cites several Louisiana appellate court decisions in arguing that constructive notice can be shown through circumstantial evidence. 19 But each of those cases involved at least some evidence indicating that the hazard persisted over tim e. In Davenport v. Albertson’s, Inc., 774 So. 2d 340 (La. App. 3 Cir. 20 0 0 ), the court found that constructive notice of a toy truck on the floor of the toy aisle could be inferred from photographs of toys lying in the aisle and affidavits of witnesses who had seen toys and other objects 18 19 R. Doc. 16-3 at 14. R. Doc. 17 at 10 -11. 7 in the aisle since the accident and witnessed store em ployees walking past toys without picking them up. Id. at 344-45. In two other cases, courts found sufficient evidence of constructive notice of hazardous puddles because the size of the puddles suggested the liquid had spread over tim e. See Rodgers v. Food Lion, Inc., 756 So. 2d 624, 625-26 (La. App. 2 Cir. 20 0 0 ); Broussard v. W al-Mart Stores, Inc., 741 So. 2d 65, 69 (La. App. 3 Cir. 1999). Plaintiff presents no sim ilar evidence that would perm it an inference that the floor m at was dangerously saturated with water for a period of tim e before her fall. Plaintiff contends that defendant has not presented evidence that its em ployees inspected the floor m at or ensured that it was not dangerous. 20 But defendant is not required to prove that it acted reasonably or that its em ployees did not see the hazard. W hite, 699 So. 2d at 10 85-87. Plaintiff bears the burden of proving each elem ent required by Louisiana Revised Statutes § 9:280 0 .6. Without a showing of actual or constructive notice, plaintiff’s argument that defendant failed to follow reasonable safety procedures is not relevant. See Pollet, 46 F. App’x 226, 20 0 2 WL 1939917, at *8 (explaining that factual dispute over whether merchant followed its own rainy day procedures did not preclude summ ary judgm ent based on constructive notice). 20 Id. at 12. 8 Accordingly, plaintiff has failed to establish a genuine issue of fact as to defendant’s actual or constructive notice of the alleged hazard. B. Alle ge d Sp o liatio n o f Evid e n ce Plaintiff argues that she is entitled to an adverse presumption against defendant under Louisiana law because defendant failed to diligently collect and preserve evidence related to her fall. 21 In diversity cases, federal rather than state evidentiary rules apply to alleged spoliation of evidence. See Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 20 3 (5th Cir. 20 0 5). The “Fifth Circuit perm its an adverse inference against the destroyer of evidence only upon a showing of bad faith or bad conduct.” Id. Plaintiff contends that defendant’s store m anager, Tia Sm alls, failed to interview potential witnesses to the accident and altered her incident report with white-out. 22 Defendant represents that it has been unable to locate the original whited-out incident report despite a diligent search. 23 Defendant did, however, produce a copy of the whited-out report subm itted by Ms. Sm alls to its Risk Managem ent Departm ent. 24 21 22 23 24 R. Doc. 17 at 13-14. Id. at 14. R. Doc. 17-7 at 2. Id.; R. Doc. 17-3 at 67. 9 As an initial m atter, plaintiff has not shown that defendant had a duty to conduct a diligent investigation. Even if defendant was under a duty to preserve the original whited-out report, the record does not indicate evidence of bad faith. Bad faith “generally m eans destruction for the purpose of hiding adverse evidence.” Guzm an v. Jones, 80 4 F.3d 70 7, 713 (5th Cir. 20 15). Defendant produced the whited-out report that it received from Ms. Sm alls. Ms. Sm alls testified that she whited-out part of the incident report to m ake the report m ore professional before sending it to her boss, not to change the substance of the inform ation conveyed in the report. 25 Although plaintiff speculates that the words whited-out in the incident report m ay have included words unfavorable to defendant, plaintiff has m ade no showing that Ms. Sm alls intentionally attem pted to hide adverse evidence. See Condrey , 431 F.3d at 20 3 (affirm ing sum m ary judgm ent where nonm ovant presented no evidence of bad faith). Plaintiff is not entitled to an adverse presumption against defendant. 25 R. Doc. 17-3 at 36-37. Ms. Sm alls testified that she didn’t think she needed to check with anyone before whiting out the report because she “still wrote the same thing.” See id. at 37. 10 IV. CON CLU SION For the foregoing reasons, defendant’s m otion for sum m ary judgment is GRANTED. Plaintiff’s com plaint is DISMISSED. New Orleans, Louisiana, this _29th _ day of August, 20 17 ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 11
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