Bailey v. Fred's Stores of Tennessee Inc. , 243 F. App'x 850 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 5, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 07-30103
Summary Calendar
PROMISE BAILEY; GLORIA BAILEY,
Plaintiffs-Appellants,
v.
FRED’S STORES OF TENNESSEE INC,
Defendant-Appellee.
Appeal from the United States District Court for the
Middle District of Louisiana, Baton Rouge
3:05-CV-1198
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants Promise Bailey and Gloria Bailey appeal
the district court’s grant of summary judgment in favor of
Defendant-Appellee Fred’s Stores of Tennessee Inc. (“Fred’s Inc.”)
in this slip and fall case. To prevail under the governing
Louisiana law, the plaintiffs must prove the existence of an
unreasonably dangerous condition, and that Fred’s Inc. either
created the dangerous condition or had actual or constructive
*
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this opinion should not be published and is not precedent except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.
knowledge of it prior to the incident. We AFFIRM.
We review a grant of summary judgment de novo, using the same
criteria as the district court. Hanks v. Transcontinental Gas Pipe
Line Corp., 953 F.2d 996, 997 (5th Cir. 1992). Summary judgment is
appropriate if the record reflects “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. P. 56(c). A court’s
role at the summary judgment stage is not to weigh the evidence or
determine the truth of the matter, but rather to determine only
whether a genuine issue exists for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). In diversity cases, such as
this one, the substantive law of the forum state controls. See
Erie R.R. Co. v. Tomkins, 304 U.S. 64, 78 (1938). This matter is
governed by Louisiana Revised Statute, title 9, section 2800.6,
“which places a heavy burden of proof on plaintiffs in claims
against a merchant for damages arising out of a fall on the
premises.” Jones v. Brookshire Grocery Co., 847 So.2d 43, 48 (La.
App. 2d Cir. 2003).
On September 16, 2004, Ms. Bailey sustained injuries when she
slipped and fell in a store owned and operated by Fred’s Inc.
According to her deposition, Ms. Bailey saw an employee mopping an
area of the store when she first entered, but not the area where
she later fell. She further states that she was in a hurry and
wearing high heels, did not see anyone mopping in the area of her
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fall, saw nothing on the floor where she fell, does not recall her
clothing being soiled or stained by the fall, and does not know
what caused her to fall. In Ms. Bailey’s own words, “All I know is
I was walking and I slipped. So I can’t tell you what the cause of
it was.” A store employee, Joann Massey, states that the area
where Ms. Bailey fell had been mopped, but that she does not recall
how much time passed between the mopping and the fall, did not
inspect the area after the fall, and does not know what the
condition of the floor was at the time Ms. Bailey fell.
The Baileys filed this lawsuit in Louisiana state court, and
Fred’s Inc. removed the case to federal court. Fred’s Inc.
subsequently moved for summary judgment on November 16, 2006, and
the district court granted the motion after the plaintiffs failed
to respond within 20 days, dismissing the action with prejudice.
On the Baileys’ subsequent Motion to Vacate, the district court
reviewed their proposed opposition and reaffirmed the grant of
summary judgment.
In order to prevail under the governing Louisiana statute, the
plaintiffs have the burden of proving that (1) the condition
presented an unreasonable, reasonably foreseeable risk of harm, (2)
Fred’s Inc. either created or had actual or constructive notice of
the condition, and (3) Fred’s Inc. failed to exercise reasonable
care. La. Rev. Stat. 9 § 2800.6(B). Because they would carry the
evidentiary burden of proof at trial, the plaintiffs must produce
factual support sufficient to establish that they will be able to
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satisfy that burden in order to overcome Fred’s Inc.’s motion for
summary judgment. See Row v. Pierremont Plaza, L.L.C., 814 So.2d
124 (La. App. 2d Cir. 2002).
Ms. Bailey fell while shopping in the Fred’s Inc. store and
sustained what were no doubt painful injuries, but she fails to
produce any evidence that a hazardous condition existed, let alone
the sort of unreasonable risk of harm, created by Fred’s Inc.,
necessary to establish liability under the governing Louisiana
statute. Indeed, as even Ms. Bailey concedes, the cause of her
fall is unknown. Any suggestion otherwise would be mere
speculation. See Robinson v. Brookshires #26, 769 So.2d 639, 642
(La. App. 2d Cir. 2000) (stating that “to avoid a summary judgment
motion mere speculation or suggestion is not enough to meet the
stringent burden imposed upon a plaintiff”). Given that there is
no genuine issue as to any material fact, Fred’s Inc. is entitled
to summary judgment as a matter of law. See FED. R. CIV. P. 56(c).
For the foregoing reasons, we AFFIRM the district court.
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