Attaway v. Albertsons Inc. , 174 F. App'x 240 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 6, 2006
_______________________
Charles R. Fulbruge III
Clerk
No. 05-30647
Summary Calendar
_______________________
SAUNDRA L ATTAWAY; KENNETH B ATTAWAY
Plaintiffs - Appellants
v.
ALBERTSONS INC
Defendant - Appellee
________________________________________________________________
On Appeal from the United States District Court
for the Western District of Louisiana
No. 5:04-CV-668
_________________________________________________________________
Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Appellants Saundra Attaway (“Attaway”) and her husband
Kenneth Attaway challenge the district court’s grant of summary
judgment in favor of Appellee, Albertson’s Inc. (“Albertson’s”).
Agreeing that Appellants have not demonstrated a genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law, 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opinion should not be published and is not precedent except under the limited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.
I. BACKGROUND
The facts are undisputed. On February 16, 2003, Attaway
visited Albertson’s, a grocery store located in Shreveport,
Louisiana. Attaway contends that as she was leaving the store, she
tripped and fell on a wrinkle or fold in a floor mat and suffered
significant injuries. Albertson’s had placed the mat at the door
because of rainy conditions earlier in the day. Attaway contends
that the rug was old and tattered and would not lay flat.
The Attaways sued Albertson’s for negligence in Louisiana
state court seeking damages for medical expenses, lost income, and
loss of consortium. Albertson’s removed the case to federal court
and moved for summary judgment. The district court granted
Albertson’s motion for summary judgment, dismissing all of
Attaway’s claims with prejudice. The Attaways timely appealed to
this court from the district court’s judgment. Pursuant to
28 U.S.C. § 1291, this court has jurisdiction to hear the appeal.
II. DISCUSSION
A district court’s grant of summary judgment is reviewed
de novo, applying the same standards as the district court.
Priester v. Lowndes County, 354 F.3d 414, 419 (5th Cir. 2004).
Summary judgment is appropriate 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
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any material fact and that the moving party is entitled to judgment
as a matter of law.” FED R. CIV. P. 56©); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 312-33, 106 S. Ct. 2548, 2552-53 (1986). On
a motion for summary judgment, a court must review the facts in the
light most favorable to the nonmovant. Walker v. Thompson,
214 F.3d 615, 624 (5th Cir. 2000).
Attaway contends that Albertsons’s was negligent and
created an unreasonable risk of harm by placing a worn and flimsy
mat in the entranceway of the store. To prevail under a negligence
action against a merchant under Louisiana law, Attaway must prove
the following:
1. The condition presented an unreasonable risk of
harm to the claimant and that risk of harm was
reasonably foreseeable.
2. The merchant either created or had actual or
constructive notice of the condition which caused
the damage, prior to the occurance.
3. The merchant failed to exercise reasonable care.
In determining reasonable care, the absence of a
written or verbal uniform cleanup or safety
procedure is insufficient, alone, to prove failure
to exercise reasonable care.
LA. REV. STAT. § 9:2800.6(B).
To show constructive notice, the claimant must prove 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. § 9:2800.6(C)(1). There is no bright line time period
relative to the duration of the condition; however, Attaway must
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make a “showing of some time period.” Kennedy v. Wal-Mart Stores,
Inc., 733 So.2d 1188, 1190-91 (La. 1999).
Based upon a careful review of the record before us,
Attaway has failed to establish that the mat upon which she tripped
and fell constituted a dangerous or negligent condition. Attaway
admitted in her deposition that she never saw a wrinkle or fold in
the mat, either before or after she fell. Furthermore, Attaway did
not provide any evidence that anyone else had seen the alleged
wrinkle or fold in the mat. Attaway did not produce any
significant probative evidence showing that Albertson’s had actual
or constructive notice of the condition prior to her fall. A mat
by the doors of a retail establishment is not, in and of itself, an
inherently dangerous situation. Moreover, Louisiana courts have
held that the failure to place mats inside an entranceway that can
become slippery during a rainfall constitutes negligence. See
Bergeron v. Se. La. Univ., 610 So. 2d 986, 988-89 (La. Ct. App.
1998). Attaway’s evidence consisted only of speculation and
conclusory statements.
The evidence fails to satisfy Attaway’s burden under LA.
REV. STAT. § 9:2800.6. Therefore, the district court’s grant of
Albertson’s motion for summary judgment was proper.
CONCLUSION
For the foregoing reasons, we AFFIRM.
AFFIRMED.
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