Eman Mohammad v. P.F. Chang's China Bistro ( 2013 )

Case: 13-30720 Document: 00512466119 Page: 1 Date Filed: 12/10/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-30720 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
December 10, 2013
Lyle W. Cayce
EMAN MOHAMMAD; LOUAY MOHAMMAD, Clerk
Plaintiffs–Appellants,
versus
P.F. CHANG’S CHINA BISTRO;
ZURICH AMERICAN INSURANCE COMPANY,
Defendants–Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:11-CV-706
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Eman and Louay Mohammad appeal a summary judgment in their suit
for personal injuries from a slip and fall at a restaurant. We affirm.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-30720
I.
While dining at P.F. Chang’s China Bistro, Eman excused herself from
the table and walked toward the restrooms. While crossing the tiled hallway
that leads to the restrooms and the entrance to the kitchen, she slipped and
fell, sustaining a lumbar injury. Her son, Hussein—who was trailing close
behind—helped her to her feet, whereupon she noticed that her pants were wet
with an unidentified liquid. There was no evidence of how long the allegedly
hazardous condition had existed.
The restaurant provided employees with non-slip shoes, had a written
policy regarding spills requiring employees to carry out inspections routinely
around the dining area, and typically placed mats near the entrance to the
kitchen. Eman and Hussein, however, stated that there was no mat there.
The Mohammads sued the restaurant and Zurich American Insurance
Company (jointly “P.F. Chang’s”) in state court alleging a violation of Louisi-
ana Revised Statutes Annotated Section 9:2800.6. P.F. Chang’s timely
removed to federal court on the basis of diversity jurisdiction, and the district
court granted P.F. Chang’s’ motion for summary judgment.
II.
We review a summary judgment de novo and apply the same standard
as did the district court, viewing all disputed evidence in the light most favor-
able to the nonmoving party. Auguster v. Vermillion Parish Sch. Bd., 249 F.3d
400, 402 (5th Cir. 2001). Summary judgment is appropriate where “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).
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III.
Section 9:2800.6 governs merchant-premises liability and provides that
a claimant has the burden of proving 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). Therefore, if
the Mohammads have not demonstrated a genuine issue of material fact
regarding whether P.F. Chang’s either created the pool of unidentified liquid
or had actual or constructive knowledge of its existence, we affirm the sum-
mary judgment.
A.
The Mohammads presented no evidence to create an issue of material
fact regarding whether P.F. Chang’s created the condition that caused the
injury. The Mohammads argue that a reasonable trier of fact could find that
P.F. Chang’s created the condition “when P.F. Chang’s’ employees tracked sub-
stances from the kitchen on to the tile floor next to the bathroom” and failed to
place a mat at the problematic location. We, like the district court, conclude
that no such issue of material fact exists.
In Broussard v. Outback Steakhouse of Florida, Inc., 146 F. App’x 710,
712 (5th Cir. 2005) (per curiam), we addressed whether, under Louisiana law,
failure to place a mat in an area where employees sometimes track water and
debris from the kitchen created an issue of material fact sufficient to avoid
summary judgment. We concluded that it did not. Id. at 713–14. The Moham-
mads try to differentiate this case on the basis that, unlike the situation in
Broussard, there is evidence that there actually was a liquid on the ground at
the time of the fall. Id. at 712.
That argument ignores the central requirement of the statute: “[T]here
must be proof that the merchant is directly responsible for the spill or other
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hazardous condition.” Gray v. Wal-Mart La., L.L.C., 484 F. App’x 963, 966 (5th
Cir. 2012) (emphasis added) (citation omitted). Merely providing evidence that
liquid substances sometimes end up on the floor of the kitchen provides no
evidence that the liquid was transmitted from the kitchen to the hallway on
the soles of an employees’ non-slip shoes. Mere assertions, without significant
probative evidence, are not sufficient to survive summary judgment. 1 There-
fore, for the same reasoning found in Broussard and cited by the district court,
no issue of material fact exists regarding creation of the condition.
B.
Nor do the Mohammads demonstrate an issue of material fact in regard
to P.F. Chang’s’ actual or constructive notice of the spill. As evidence of notice,
the Mohammads again point to Dupree’s testimony that employees wore non-
slip shoes and placed mats outside the kitchen entrance. Additionally, they
provided a safety expert’s opinion that the restaurant knew or should have
known that grease residue could be tracked into the hallway by employees and
that customers could walk across the same route and slip.
The Mohammads again rely solely upon mere assertions—by them or
their expert—that spills in the kitchen could be tracked into the hallway as
“evidence” of actual knowledge on the part of P.F. Chang’s that it was tracked
into the hallway. That is insufficient to avoid summary judgment. 2
Although the evidence shows no issue of material fact in regard to actual
notice, we must examine whether it creates such an issue on constructive
1 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986); Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (“In short, conclusory alle-
gations, speculation, and unsubstantiated assertions are inadequate to satisfy the non-
movant’s burden.”), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).
2 See Douglass, 79 F.3d at 1429.
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notice. In White v. Wal-Mart Stores, Inc., 699 So. 2d 1081, 1084 (La. 1997), the
seminal case on this issue, the court held that there is a temporal requirement
for constructive notice: “The statute does not allow for the inference of
constructive notice absent some showing of this temporal element.” A claim-
ant must show not only that a hazardous condition existed but also that it
existed for some period of time:
A claimant who simply shows that the condition existed without
an additional showing that the condition existed for some time
before the fall has not carried the burden of proving constructive
notice as mandated by the statute. Though the time period need
not be specific in minutes or hours, constructive notice requires
that the claimant prove the condition existed for some time period
prior to the fall. This is not an impossible burden.
Id. at 1084–85. 3 In other words, “the claimant must show that the substance
remained on the floor for such a period of time that the defendant merchant
would have discovered its existence through the exercise of ordinary care.” Id.
at 1086. 4
The White court found the plaintiff to have “fall[en] far short of carrying
th[is] burden” by “present[ing] absolutely no evidence that the liquid was on
3 The White court overruled a Louisiana Supreme Court decision on the basis that it
did not require a showing of positive evidence that the “condition existed for some period of
time prior to the occurrence and which provided for a shifting” and it “provided for a shifting
burden to the defendant merchant to prove it exercised reasonable care.” White, 699 So. 2d
at 1085 (explicitly overruling Welch v. Winn-Dixie La., Inc., 655 So. 2d 309 (La. 1995)).
4 See also Walters v. Kenner CiCi’s, 780 So. 2d 467, 470 (La. 5th Cir. 2001) (“The
Supreme Court held that the claimant must come forward with positive evidence showing
that the damage-causing condition existed for some period of time, and that such time was
sufficient to place the merchant defendant on notice of its existence.” (citing White, 699 So.
2d at 1081)).
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the floor for any length of time.” Id. 5 The Mohammads have similarly pre-
sented no evidence that the liquid in this case was on the floor for any length
of time—let alone that that time was sufficient that the restaurant have dis-
covered its existence through the exercise of ordinary care. As a result, there
is no issue of material fact regarding constructive notice.
Because the Mohammads have not meet their burden to produce evi-
dence regarding P.F. Chang’s’ creation of or notice regarding the hazardous
condition, merchant-premises liability could not be found as a matter of Louisi-
ana Law. The summary judgment is AFFIRMED.
5The Mohammads try to distinguish White because it did not involve summary judg-
ment but a judgment on the merits. That is a distinction without a difference: Just as a
complete lack of evidence to prove a claim on the merits requires reversal, a complete lack of
evidence to create an issue of material fact requires summary judgment.
6