McGinnis v. Target Corporation of Minnesota, No. 2:2018cv09693 - Document 58 (E.D. La. 2019)

Court Description: ORDER AND REASONS - IT IS ORDERED that the 41 motion for summary judgment filed by Defendant Target Corporation of Minnesota be and hereby is GRANTED. Signed by Judge Susie Morgan. (bwn)
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McGinnis v. Target Corporation of Minnesota Doc. 58 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OSEPH IN E MCGIN N IS, Plain tiff CIVIL ACTION VERSU S N O. 18 -9 6 9 3 TARGET CORPORATION OF MIN N ESOTA, D e fe n d an t SECTION : “E” ( 4 ) ORD ER AN D REAS ON S Before the Court is a m otion for sum m ary judgm ent filed by Defendant Target Corporation of Minnesota (Target). 1 Plaintiff J osephine McGinnis opposes the m otion. 2 Defendant filed a reply. 3 For the reasons that follow, Defendant’s m otion for sum m ary judgm ent is GRAN TED . BACKGROU N D This case arises out of a slip and fall incident that occurred on May 30 , 20 17, while Plaintiff was a patron at a Target in Metarie, Louisiana. 4 Plaintiff alleges fresh wax on the floor caused her fall. 5 Plaintiff filed a petition for dam ages against Defendant on May 22, 20 18, in the Louisiana 24th J udicial District Court. 6 Defendant rem oved the case to this Court on October 18 , 20 18. 7 Defendant now m oves for sum m ary judgm ent. 8 1 R. Doc. 41. R. Doc. 52. 3 R. Doc. 57. 4 R. Doc. 41-3 ¶ 1; R. Doc 52-1, at 2 ¶ 1. 5 R. Doc. 1-7 at 4; R. Doc 52-1, at 2 ¶ 5 (citing McGin nis Dep. April 16, 20 19, 10 :0 0 AM, at p. 49:23– 25). 6 R. Doc. 1-7. 7 R. Doc. 1. 8 R. Doc. 41. 2 1 Dockets.Justia.com SU MMARY J U D GMEN T STAN D ARD Sum m ary judgm ent is appropriate only “if 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.”9 “An issue is m aterial if its resolution could affect the outcom e of the action.”10 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the evidence.”11 All reasonable inferen ces are drawn in favor of the nonm oving party. 12 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the nonm oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 13 “[A] party seeking sum m ary judgm ent always bears the initial responsibility of inform ing the district court of the basis for its m otion, and identifying those portions of [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.”14 If the dispositive issue is one on which the nonm oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative eviden ce that negates an essential elem ent of the nonm ovant’s claim , or (2) dem onstrating there is no evidence in the record to establish an essential elem ent of the nonm ovant’s claim . 15 9 F ED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 11 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8); see also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 12 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 13 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 14 Celtic Marine Corp. v. Jam es C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 20 14) (quoting Celotex, 477 U.S. at 323). 15 Celotex, 477 U.S. at 331– 32 (Brennan , J ., dissentin g); see also St. Am ant v. Benoit, 80 6 F.2d 1294, 1297 (5th Cir. 1987) (citin g J ustice Brennan’s statem ent of the sum m ary judgm ent standard in Celotex, 477 U.S. at 322– 24, and requirin g the m ovants to subm it affirm ative evidence to negate an essential elem ent of the nonm ovant’s claim or, alternatively, dem onstrate the n onm ovant’s evidence is insufficient to establish an 10 2 When proceeding under the second option, the nonm oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”16 The burden then shifts back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the nonm ovant. 17 If the m ovant m eets this burden, “the burden of production shifts [back again] to the n onm oving party, who m ust either (1) rehabilitate the eviden ce attacked in the m oving party’s papers, (2) produce additional eviden ce showing the existen ce of a genuine issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain ing why further discovery is necessary as provided in Rule 56(f).”18 “Sum m ary judgm ent should be granted if the nonm oving party fails to respon d in one or m ore of these ways, or if, after the nonm oving party respon ds, the court determ ines that the m oving party has m et its ultim ate burden of persuading the court that there is no genuine issue of m aterial fact for trial.”19 “[U]nsubstantiated assertions are not com petent sum m ary judgm en t evidence.”20 The opposing party m ust “identify specific evidence in the record and to articulate the precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”21 essential elem ent); 10 A CH ARLES ALAN W RIGHT, ARTHUR R. M ILLER & M ARY KAY KANE , F EDERAL P RACTICE AND P ROCEDURE § 2727.1 (20 16) (“Although the Court issued a five-to-four decision, the m ajority and dissent both agreed as to how the sum m ary-judgm ent burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.” (internal citations om itted)). 16 Celotex, 477 U.S. at 332– 33. 17 Id. 18 Id. at 332– 33, 333 n.3. 19 Id.; see also First N at’l Bank of Ariz. V. Cities Serv. Co., 391 U.S. 253, 289 (1968 ). 20 Ragas v. Tenn . Gas Pipelin e Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324) 21 Id. (citing Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)) (quotin g Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 3 FACTS The following facts are undisputed. On May 30 , 20 17, Plaintiff was a patron at a Target in Metarie, Louisiana. 22 While walking through the store, Plaintiff slipped an d fell. 23 After the fall, Target em ployee Ashley McGill told Plaintiff the floor had been waxed that m orning. 24 McGill then inspected the floor and wrote an incident report. 25 No debris was present on the floor. 26 Plaintiff argues the following m aterial facts are in dispute: whether Target waxed the floors; 27 whether the wax caused Plaintiff’s fall; 28 whether there was anything wrong with the floor such as it being sticky or wet; 29 whether there was anything visibly wrong with the floor; 30 whether the Target in question had a history of people falling on its freshly waxed floors; 31 whether Target em ployee Ashley McGill noted the waxed floor and testified she had previously stum bled when the floors were freshly waxed; 32 whether there was any in dication the floors were im properly waxed; 33 whether Plaintiff fell because she stum bled over her own feet; 34 and whether the floor waxing was com pleted around 6:30 a.m . on May 30 , 20 17, and Target inspected the floor following com pletion of the work. 35 22 R. Doc. 41-3 ¶ 1; R. Doc 52-1, at 2 ¶ 1. R. Doc. 41-3 ¶ 1; R. Doc 52-1, at 2 ¶ 1. 24 R. Doc. 41-3 ¶ 3; R. Doc 52-1, at 2 ¶ 3. 25 R. Doc. 41-3 ¶ 12; R. Doc 52-1, at 2 ¶ 12. 26 R. Doc. 41-3 ¶ 18; R. Doc 52-1, at 2 ¶ 18. 27 R. Doc. 52-1, at 5 ¶ 24 (citing McGill Dep. at p 9:6– 8). 28 Id. at 1 ¶ 1 (citin g McGinn is Dep. April 16, 20 19, 10 :0 0 AM, at pp. 44, 46, 49). 29 Id. at 4 ¶ 14, 16– 17 (citing McGill Dep. at p. 12:1– 7, 21– 22). 30 Id. ¶ 19 (citing McGin nis Dep. April 16, 20 19, 10 :0 0 AM, at p. 84:11– 15; McGin nis Dep. April 16, 20 19, 11:36 AM, at p. 21:4– 9; McGill Dep. at p. 22:18 – 24). 31 Id. at 1 ¶ 2 (citin g McGill Dep. at pp. 7, 12, 13). 32 Id. ¶ 3 (citing McGill Dep. at pp. 7, 12, 13 and May 30 , 20 17 Guest Incident Report). 33 Id. at 5 ¶ 20 (citing McGill Dep. at p. 12:1– 7, 21– 22). 34 Id. ¶ 21 (citin g McGill Dep. at p. 12:1– 7, 21– 22). 35 Id. at 2 ¶ 4 (citin g Target Dep. pp. 14– 15, 22– 23). 23 4 LAW AN D AN ALYSIS As the m oving party, Defendant bears the burden of establishing the absence of any genuine issues of m aterial fact and that it is entitled to judgm ent as a m atter of law. To m eet this burden, Defendant subm its Plaintiff is unable to establish the essential elem ents of her slip-and-fall cause of action. 36 Slip and fall cases are governed by Louisiana Revised Statutes section 9:280 0 .6(B), which provides in pertinent part: In a negligence claim brought against a m erchant by a person lawfully on the m erchant's prem ises for dam ages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a m erchant's prem ises, the claim ant shall have the burden of proving, in addition to all other elem ents of [her] cause of action, all of the following: (1) The condition presented an unreasonable risk of harm to the claim ant an d that risk of harm was reasonably foreseeable. (2) The m erchant either created or had actual or constructive notice of the condition which caused the dam age, prior to the occurrence. (3) The m erchant failed to exercise reasonable care. In determ ining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care. 37 Under this statute, “[m]erchants are required to exercise reasonable care to protect those who enter the establishm ent, to keep the prem ises safe from unreasonable risks of harm , and to warn persons of known dangers.”38 Nevertheless, m erchants are not the insurers of patrons, and a store owner is not liable every tim e an accident happens. 39 Defendant argues there is insufficient eviden ce in the record to support the first elem ent—that the floor presented an unreasonable and foreseeable risk of harm —and 36 R. Doc. 41-4, at 6. LA. STAT. § 9:28 0 0 .6(B). 38 Trench v. W inn-Dixie Mon tgom ery LLC, 14-152 (La. App. 5 Cir. 9/ 24/ 14), 150 So. 3d 472, 476. 39 Id. 37 5 insufficient evidence to support the second elem ent—that Target created or had notice of the dangerous condition. I. D e fe n d an t H as Sh o w n Th e re Is N o Evid e n ce to Es tablis h It Cre ate d th e Flo o r’s Co n d itio n , Bu t Faile d to Es ta blis h Th e re Is N o Evid e n ce It La cke d N o tice o f th e Co n d itio n For Plaintiff to succeed on her claim , section 9:280 0 .6(B)(2) requires her to prove at trial Defendant “created or had actual or constructive notice of the condition which caused the dam age, prior to the occurrence.”40 Defendant argues Plaintiff has not presented sufficient record evidence to establish either prong of this elem ent. 41 A plaintiff can satisfy section 9:280 0 .6(B)(2) in two ways. First, section 9:28 0 0 .6(B)(2) is satisfied if a defendant “creates” the dangerous condition. 42 In the context of floors m ade hazardous by wax buildup, the Louisiana Court of Appeals held in Savoie if “[a defendant] m aintains its own floors, [plaintiffs] are not required to prove that [defendant] had notice or constructive notice of the possible buildup. If there was a buildup, [defendant] created it, thus, the notice requirem ent of La.R.S. 9:280 0 .6 does not apply.”43 If the defendant did not m aintain its own floors, the plaintiff m ust prove the defendant had notice or constructive notice of the buildup. However, even if a defendant has not created the hazardous condition, section 9:28 0 0 .6(B)(2) is also satisfied if a defendant had “actual or constructive notice of the condition which caused the dam age, prior to the occurrence.”44 This notice requirem ent is further explained by Louisiana Revised Statutes section 9:280 0 .6(C), which details that 40 LA. STAT. § 9:28 0 0 .6(B)(2). Doc. 41-4, at 6. 42 Deshotel v. W al-Mart La., L.L.C., 850 F.3d 742, 748 (5th Cir. 20 17) (“[T]he plain m eaning of the statute m ake[s] clear; plaintiffs m ust prove either creation of the hazard or actual or constructive notice thereof. There is no requirem ent of notice when it com es to creation of the hazard.”). 43 Savoie v. Sw . La. Hosp. Ass’n, 20 0 3-982 (La. App. 3 Cir. 2/ 25/ 0 4), 866 So. 2d 10 78, 10 81. 44 LA. STAT. § 9:28 0 0 .6(B)(2). 41 R. 6 a m erchant is charged with having constructive notice of the unsafe condition when “the condition existed for such a period of tim e that it would have been discovered if the m erchant had exercised reasonable care.”45 In W hite v. W al-Mart Stores, Inc., 46 the Louisiana Suprem e Court explained when there is an absen ce of evidence in dicating how the hazard was created, the statute requires a plaintiff to m ake a “positive showing” that the com plained-of condition existed for som e period of tim e prior to the fall and that such tim e period was sufficiently lengthy that a m erchant should have discovered the condition. 47 “Though there is no bright line tim e period,” the statute does not allow for the inferen ce of constructive notice absent som e positive showing of this tem poral elem ent. 48 In this case, Defendant has dem onstrated a lack of record evidence as to whether it created the condition of the floors in Target at the tim e of Plaintiff’s fall. Defendant asserts “Target did not wax the floors, as such, there is no evidence that they created a dangerous condition or had actual knowledge of one.”49 To support this claim , Defendant relies on the Rule 30 (B)(6) deposition of Target representative J oshua Hebert. 50 In that deposition, Hebert points out the condition of the floors was technically the result of sealant rather than wax, 51 and states Target’s independent contractor “Prestige” stripped and sealed the floors rather than Defendant itself. 52 In general, Defendant should not be held liable for the acts of its indepen dent contractor Prestige, 53 and Plaintiff has failed to 45 LA. STAT. § 9:28 0 0 .6(C)(1). 97-0 393 (La. 9/ 9/ 97), 699 So. 2d 10 81. 47 Id. at 10 84. 48 Id. 49 R. Doc. 41-4 (citin g Target Dep.) 50 Id. 51 R. Doc 57-1, at 4. 52 Id. at 2– 3. 53 Thom as v. Albertsons, Inc., 28 ,950 (La. App. 2 Cir. 12/ 11/ 96), 685 So. 2d 1134, 1139, w rit denied, 970 391 (La. 3/ 27/ 97), 692 So. 2d 395 (holding that because an independent contractor created a hazardous 46 7 call to the Court’s attention any reason the general rule should not take effect. As a result, Defendant has shown there is no evidence in the record to establish Defendant created the condition of the floors. Even if Defendant has established it did not create the condition, there is a genuine dispute of m aterial fact as to whether it had notice of the conditions. First, as Plaintiff points out, Defendant’s “m ainten ance guy” inspected the floors im m ediately after they were waxed on May 30 , 20 17. 54 Second, at least four hours passed between the tim e the work on the floors was com plete, 6:30 a.m ., 55 and the tim e Plaintiff fell, 11:30 a.m . 56 That period of tim e prior to the fall was sufficiently lengthy to allow Defendant to discover the condition. 57 Accordingly, both the inspection and the elapsed tim e between the work and Plaintiff’s fall could have put Defendant on constructive notice of the floor’s condition. The Court finds Defendant has shown there is no genuine dispute of m aterial fact as to whether it created the condition of the floors prior to Plaintiff’s fall, but there are genuine disputes of material fact as to whether Defendant had notice of the condition of the floors. II. N o Re co rd Evid e n ce Es tablis h e s th e Flo o r Pre s e n te d an U n re as o n a ble Ris k o f H arm To succeed on her claim under section 9:280 0 .6(B)(1), Plaintiff will bear the burden at trial of proving the wax on Target’s floor presented an unreasonable risk of condition on a grocery store floor, the store had to have notice of that condition to be liable for a fall the condition caused and im plicitly com m andin g the store did not create the hazard). 54 R. Doc. 52-1, at 2 ¶ 4 (citin g Target Dep. at pp. 22– 23). 55 Id. 56 Id. at 1 ¶ 1. 57 W hite, 699 So. 2d at 10 84. 8 harm . In its m otion for sum m ary judgm ent, Defendant argues Plaintiff has not presented sufficient record evidence to establish this elem ent. 58 In support of its argum ent, Defendant directs the Court to the inform ative case Trench v. W inn-Dixie Montgom ery , LLC. 59 In Trench, the plaintiff alleged she fell because of a slippery floor in a grocery store but adm itted she did not know why the floor was slippery. 60 She claim ed a store m anager had inform ed her the floor had just been waxed. 61 No one, however, saw anything on the floor that could have caused the plaintiff’s fall, including any excess wax or wax buildup. 62 The only evidence the condition of the floor presented an unreasonable and foreseeable risk of harm was plaintiff’s own speculative testim ony. 63 As a result, the court determ ined the plaintiff had not shown through record eviden ce the waxed floor presented an unreasonably dangerous condition and sum m ary judgm ent in favor of the defendant was proper. 64 Defendant argues the instant case is on all fours with Trench. 65 First, Defendant points out that m uch like in Trench, Plaintiff fell for an initially unknown reason and only claim ed the floor was dangerous because of a recent waxing after Target em ployee McGill inform ed her the floor had been waxed that m orning. 66 Further, Defendant argues Plaintiff has not presented any eviden ce the floor was im properly waxed or otherwise unreasonably dangerous. 67 Instead, just as in Trench, Plaintiff’s claim rests entirely on 58 R. Doc. 41-4, at 6. Trench, 150 So.3d at 472. 60 Id. at 476. 61 Id. 62 Id. 63 Id. 64 Id. at 477. 65 R. Doc. 41-4 at 7. 66 Id. at 8. 67 Id. 59 9 her own speculation. 68 This speculation, Defendant argues, does not provide evidence sufficient for a jury to find the floor was unreasonably dangerous. 69 The Court finds Defendant has m et its initial burden of affirm atively dem onstrating there is no evidence in the record to establish the first elem ent of Plaintiff’s claim that the floor presented an unreasonable risk of harm . However, Plaintiff, as the party opposing sum m ary judgm ent, m ay still defeat Defendant’s m otion by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”70 Plaintiff m ust identify specific evidence in the record and articulate the precise m ann er in which that evidence supports her claim that Defendant is liable to her for her injuries. 71 In an attem pt to do this, Plaintiff directs the court to McGill’s testim ony that she had fallen on Target’s floors herself. 72 This argum ent is of no avail, though, because McGill did not testify the wax, or anything else, on Target’s floors caused her to stum ble. 73 She m erely testified she had fallen before because she did not pick her feet up after Target waxed the floors, not that there was anything dangerous about the waxing. 74 In fact, McGill agreed three tim es “it was just a norm al floor” at the tim e of Plaintiff’s fall 75 Plaintiff also points the Court to three cases in which Louisiana courts found wax on a floor to be unreasonably dangerous. 76 Those cases are all distinct from the instant 68 Id. Id. 70 Celotex, 477 U.S. at 332. 71 Ragas v. Tenn . Gas Pipelin e Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)) (quotin g Skotak v. Tenn eco Resins, Inc., 953 F.2d 90 9, 915– 16 & n.7 (5th Cir. 1992)). 72 R. Doc. 52-1, at 1 ¶ 2– 3. 73 R. Doc. 52-2 at 30 – 31. 74 Id. 75 R. Doc. 41-8 at 14, 16, 18 . 76 R. Doc. 52 at 4. 69 10 case because, in each one, the respective plaintiffs presented eviden ce the waxed floor at issue actually was dangerous. In Savoie v. Southw est Louisiana Hospital Association, the plaintiffs presented expert testim ony explaining the long term build up of wax on the floor in dispute. 77 In Choy ce v . Sisters of Incarnate W ord, the plaintiffs again provided expert testim ony explaining inherently dangerous n ature of the particular waxed floor. 78 And in Duckett v. K-Mart Corp., the plaintiff presented an eye witness account of obvious signs of wax build up. 79 None of the cases stand for the proposition that wax on a floor alone— absent som e other indication of dangerousness—suffices to allow a jury to find a waxed floor to be unreasonably dangerous. As the Fifth Circuit has held, sum m ary judgm ent cannot be avoided by showing “som e m etaphysical doubt as to the m aterial facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”80 “Rather, the non-m oving party m ust set forth specific facts showing the existence of a genuine issue concerning every essential com ponent of its case.”81 “Testim ony based on conjecture or speculation is insufficient to raise an issue of fact to defeat a sum m ary judgm ent m otion because there is no issue for trial unless there is sufficient evidence favoring a nonm oving party.”82 Plaintiff has failed to call the Court’s attention to supporting evidence in the record establishing a genuine dispute as to whether Target’s floors were unreasonably dangerous as required by Louisiana Revised Statutes section 9:280 0 .6(B)(1). Accordingly, the Court 77 20 0 3-98 2 (La. App. 3 Cir. 2/ 25/ 0 4), 866 So. 2d 10 78, 10 81. 25,958 (La. App. 2 Cir. 8/ 19/ 94), 642 So. 2d 287, 290 , w rit denied sub nom . Choy ce v. Sisters of the Incarnate W ord, 94-2510 (La. 12/ 9/ 94), 647 So. 2d 1119. 79 94-0 579 (La. 10 / 17/ 94), 645 So. 2d 621, 622. 80 Boudreaux v. Sw ift Transp. Co., 40 2 F.3d 536, 540 (5th Cir. 20 0 5) (citations and internal quotation m arks om itted); see also Law rence v . Federal Hom e Loan Mortg. Corp., 80 8 F.3d 670 , 673– 74 (5th Cir. 20 15). 81 Boudreaux, 40 2 F.3d at 540 (citations and internal quotation m arks om itted). 82 Ruiz v. W hirlpool, Inc., 12 F.3d 510 , 513 (5th Cir. 1994) (citing Anderson v . Liberty Lobby , Inc., 477 U.S. 242, 249– 50 (198 6)). 78 11 finds Defendant showed there is no genuine dispute of m aterial fact as to this essential elem ent of Plaintiff’s claim . Because plaintiff m ust m eet all elem ents of section 9:280 0 .6, Defendant is entitled to judgm ent as a m atter of law. CON CLU SION IT IS ORD ERED that the m otion for sum m ary judgm ent filed by Defendant Target Corporation of Minnesota be and hereby is GRAN TED . 83 N e w Orle a n s , Lo u is ian a, th is 13 th d ay o f Se p te m be r, 2 0 19 . ______________________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 83 R. Doc. 41. 12