Lisa Taylor v. Wal-Mart Stores, Incorporated, et a , 464 F. App'x 337 ( 2012 )


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  •      Case: 11-30742    Document: 00511788298         Page: 1    Date Filed: 03/14/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    March 14, 2012
    No. 11-30742                         Lyle W. Cayce
    Summary Calendar                            Clerk
    LISA TAYLOR,
    Plaintiff - Appellant
    v.
    WAL-MART STORES, INCORPORATED; MONIQUE WILLIAMS,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:10-CV-1503
    Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
    PER CURIAM:*
    Appellant, Lisa Taylor, appeals the district court’s grant of summary
    judgment in favor of Appellees, Wal-Mart Stores, Inc. and Monique Williams, in
    a Louisiana delictual action for failure to maintain a safe premises. The district
    court found that Taylor failed to provide sufficient evidence                    to prove
    constructive notice, which is an essential element of her claim. Because the
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 11-30742    Document: 00511788298      Page: 2   Date Filed: 03/14/2012
    No. 11-30742
    district court correctly concluded that Taylor did not present sufficient evidence
    to establish constructive notice, we AFFIRM.
    I. BACKGROUND
    Lisa Taylor was shopping at a Wal-Mart in New Orleans, Lousiana. When
    she was putting her purchases into a shopping cart, she slipped on a wet
    substance on the store’s floor near the check-out stations and sustained a
    number of injuries. As a result, she filed suit in district court seeking damages
    for her injuries, lost wages and lost earning capacity. The parties filed cross-
    motions for summary judgment and the district court found Wal-Mart was
    entitled to judgment as a matter of law because Taylor failed to prove an
    essential element of her claim.
    Plaintiff alleges that the surveillance video she presented established a
    genuine issue of material fact. The tape captures roughly an hour of footage
    leading up to the incident. It shows a continuous flow of shoppers and buggies
    going through Wal-Mart’s check-out stations. About thirteen minutes prior to
    the incident, a customer shuffles her feet in the area where Taylor fell. However,
    a number of buggies and customers subsequently pass through the area where
    the incident occurred without any sign of trouble. Moreover, the wet substance
    is not visible at any time.
    II. STANDARD OF REVIEW
    This court reviews a district court’s decision to grant summary judgment
    de novo. See Bagley v. Albertsons, Inc., 
    492 F.3d 328
    , 330 (5th Cir. 2007).
    Summary judgment is proper “if the pleadings, depositions, answers to
    interrogatories, and admissions on file, together with the affidavits, if any, show
    that there is no genuine issue as to any material fact and that the moving party
    is entitled to a judgment as a matter of law.” FED. R. CIV. PROC. 56.
    2
    Case: 11-30742   Document: 00511788298        Page: 3   Date Filed: 03/14/2012
    No. 11-30742
    III. DISCUSSION
    Among other things, Louisiana law requires a plaintiff claiming a slip-and-
    fall injury to demonstrate that “[t]he merchant either created or had actual or
    constructive notice of the condition which caused the damage, prior to the
    occurrence.” LA. REV. STAT. ANN. § 9:2800.6(B)(2). Constructive notice is further
    defined as “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.” LA. REV. STAT. ANN. § 9:2800.6(C)(1). Failure to prove this or
    any element of the claim is fatal to the plaintiff’s case. See White v. Wal-Mart
    Stores, Inc., 
    699 So.2d 1081
    , 1086 (La. 1997).
    After reviewing the evidence, this court agrees with the district court’s
    determination that Taylor failed to establish notice, an essential element of her
    claim. Though Taylor alleges that the surveillance video proves that the hazard
    existed at least thirteen minutes prior to the incident, the district court noted:
    The video merely shows the passage of time and lacks any visual evidence
    of a wet substance on the floor. The video does not show someone or
    something creating the wet substance; it does not show others slipping or
    avoiding the area; it shows no one making a failed attempt to clean or
    secure the area. To conclude what the plaintiff asks would require this
    court to draw a series of impermissible inferences unsupported by this
    summary judgment record.
    “Mere speculation or suggestion is not sufficient to meet this burden, and courts
    will not infer constructive notice for purposes of summary judgment where the
    plaintiff’s allegations are no more likely than any other potential scenario.”
    Bagley, 
    492 F.3d at 330
    . Given the ambiguous nature of the video, Taylor failed
    to establish a material fact issue concerning this necessary element of her claim.
    See 
    id. at 331
     (requiring some proof of the “the origin or nature of the liquid to
    imply a necessary passage of time”); Demouy v. Sam’s Wholesale, Inc., No. 2010
    3
    Case: 11-30742    Document: 00511788298     Page: 4   Date Filed: 03/14/2012
    No. 11-30742
    CA 2295, 
    2011 WL 2981117
    , at *2 (La. App. 1st Cir. June 10, 2011) (affirming
    the district court’s grant of summary judgment when a surveillance video did not
    reveal the hazard). For these reasons, the judgment is AFFIRMED.
    4
    

Document Info

Docket Number: 11-30742

Citation Numbers: 464 F. App'x 337

Judges: Jones, Prado, Elrod

Filed Date: 3/14/2012

Precedential Status: Non-Precedential

Modified Date: 10/19/2024