Miller v. Michaels Stores, Inc.

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SUSAN MILLER v. MICHAELS STORES INC.

Civil Action No. 22-359

United States District Court, E.D. Louisiana

June 9, 2023

SECTION “B” (2)

ORDER AND REASONS

Before the Court are defendant Michaels Stores Inc.'s motion for summary judgment (Rec. Doc. 14), plaintiff Susan Miller's opposition (Rec. Doc. 20), defendant's reply in support of its motion (Rec. Doc. 25), and plaintiff's supplement to her opposition (Rec. Doc. 54). For the following reasons IT IS HEREBY ORDERED that the defendant's motion for summary judgment (Rec. Doc. 14) is GRANTED, and the case is DISMISSED.

I. FACTS AND PROCEDURAL HISTORY

On or about February 15, 2021, Susan Miller (“plaintiff”) entered into Michael's Store, Inc., d/b/a Michael's (“Michael's Stores” or “defendant”) located at 300 Town Center Parkway, Slidell, Louisiana 70458. See Rec. Doc. 1 at 2. Miller entered the store through the left side entrance and alleges that she “suddenly and without warning, slipped and fell on a substance which had been allowed to accumulate at the entrance . . . causing [her] to fall and sustain significant injuries and damages.” Id. Miller alleges that there were no warning signs around the area of her fall. Id. at 3.

On February 14, 2022, Miller filed the instant lawsuit in this Court against Michael's Stores, Inc. d/b/a Michael's, alleging “strict liability and/or negligence according to La. Civ. Code Art.[s] 2315, 2316, 2317, 2317.1.” Id. at 1, 6. She claims that a result of defendant's negligence she suffered “severe and disabling injuries” to her “head, back, neck, and/or spine, arm, elbow, wrist, shoulder, knees ankle and knees[.]” Id. at 4-6. On January 31, 2023, defendant filed its motion for summary judgment. See Rec. Doc. 14. Then plaintiff responded in opposition on February 7, 2023. See Rec. Doc. 20. Defendant replied to plaintiff's opposition on February 13, 2023. See Rec. Doc. 25.

However, plaintiff's opposition raised possible discrepancies regarding the availability of security camera footage. The Court then ordered defendant to “produce to plaintiff and submit to this court via a flash drive for in camera review, any surveillance footage of the alleged incident,” and further provide a statement addressing the apparent inconsistencies in its response to plaintiff's interrogatories. See Rec. Doc. 28. Defendant complied with the Court's order and produced the footage from two security cameras, one directed at the front entrance, the other directed at the cash registers. The camera directed at the front entrance does not capture plaintiff's fall within the video frame. The video is time stamped starting at 2:45:00 on February 14, 2021, and at around 53 seconds in, plaintiff can be seen entering the second set of doors to defendant's store, at 55 seconds, plaintiff exits the frame entirely, then at 57 seconds plaintiff is seen reentering the frame near the ground. This video continues for 21 additional minutes. The second video provided also appears to start at 2:45:00 on February 14, 2021 but is directed at the cash registers and does not catch plaintiff's alleged fall. At 57 seconds into this video, other customers are observed turning their head in the same direction and walking out of frame. Plaintiff is not seen in this video until 10 minutes and 18 seconds into the video when she appears to get in line to check out. Plaintiff then leaves the frame for the duration of the video at 3:05:42.

II. LAW AND ANALYSIS

A. Standard of Review

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is appropriate when “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 judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As such, the court should view all facts and evidence in the light most favorable to the non-moving party.

United Fire & Cas. Co. v. Hixon Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006).

When the movant bears the burden of proof, it must “demonstrate the absence of a genuine issue of material fact” using competent summary judgment evidence. Celotex, 477 U.S. at 323. However, “where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Should the movant meet its burden, the burden shifts to the non-movant, who must show by “competent summary judgment evidence” that there is a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16 F.3d at 618. However, “a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” See Sec. & Exch. Comm'n v. Arcturus Corp., 912 F.3d 786, 792 (5th Cir. 2019).

B. Louisiana Substantive Law

The Fifth Circuit has interpreted the United States Supreme Court's decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), to “require[] that federal courts apply substantive state law when adjudicating diversity-jurisdiction claims, but in doing so apply federal procedural law to the proceedings.” Cates v. Sears, Roebuck & Co., 928 F.2d 679, 687 (5th Cir. 1991) (citing Hanna v. Plumer, 380 U.S. 460 (1965)). Here, jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332. See Rec. Doc. 1 at 2-3. As such, the Court must apply substantive state law. See Cates, 928 F.2d at 687. Both parties seemingly concede that Louisiana substantive law should apply in the instant matter. See Rec. Doc. 14-1 at 3; Rec. Doc. 20 at 1.

Plaintiff's complaint alleges an action under “strict liability and/or negligence according to La. Civ. Code Art.[s] 2315, 2316, 2317, 2317.1,” after an alleged slip and fall in Michael's Stores. See Rec. Doc. 1 at 6. Under Louisiana law, “imposition of tort liability on a merchant for a patron's injuries resulting from an accident is governed by La. R.S. 9:2800.6.” Melton v. Smith, 41,456 (La.App. 2 Cir. 9/20/06); 940 So.2d 89, 92. La. Rev. Stat. § 9:2800.6 is specifically “aimed at ‘slip and fall' or ‘trip and fall' cases.” See Littleton v. Wal-Mart Stores, Inc., 99-390 (La.App. 3 Cir. 12/1/99); 747 So.2d 701, 703, writ denied, 2000-0804 (La. 5/5/00); 761 So.2d 546. According to La. Rev. Stat. § 9:2800.6:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.

B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of 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 occurrence.

(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. Therefore, to succeed on a slip and fall case, the plaintiff must establish all five elements of negligence,^[1] as well as the additional requirements of La. Rev. Stat. § 9:2800.6. See White v. Wal-Mart Stores, Inc., 97-0393 (La. 9/9/97); 699 So.2d 1081, 1084. Failure to prove any of these elements is fatal to plaintiff's cause of action. See id. at 1086. Parties here do not brief the five elements of negligence, but instead focus their briefing on the element of actual or constructive notice under La. Rev. Stat. § 9:2800.6(B)(2).

According to the statute, constructive notice means that:

[T]he 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. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition

La. Rev. Stat. § 9:2800.1(C)(1). The Supreme Court of Louisiana recognizes that “there is no bright line time period,” that a claimant must show, but “[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.” White, 699 So.2d at 1084. “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.” Id. at 1084-85. This requires the plaintiff to “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.” Id. at 1082; see also Kennedy v. Wal-Mart Stores, Inc., 98-1939 (La. 4/13/99); 733 So.2d 1188 (clarifying White and...