                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                          UNITED STATES COURT OF APPEALS
                                                                                   November 30, 2006
                                 For the Fifth Circuit
                                                                                 Charles R. Fulbruge III
                                                                                         Clerk

                                        No. 05-30421




                      CLARA S. TONEY AND THOMAS E. TONEY,


                                                                  Plaintiffs-Appellants


                                            VERSUS


                              UNITED STATES OF AMERICA
                               DEPARTMENT OF THE ARMY,


                                                                       Defendant-Appellee



   Appeal from the United States District Court For the Western
            District of Louisiana Lake Charles Division



Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.

Per Curiam:*

       Plaintiffs-Appellants, Clara S. Toney and Thomas E. Toney,

sued the United States Army under the Federal Tort Claims Act

(“FTCA”) for injuries sustained by Clara Toney in a food court at

the government’s Fort Polk military base. The plaintiffs appeal a


       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
summary judgment rendered against them on the grounds that the

district court erred in applying the Louisiana Merchant Liability

Act (“LMLA”) to their claim.    We agree with the plaintiffs and,

accordingly, vacate the judgment and remand this case to the

district court.

                                 I.

      On June 19, 2000, Clara Toney went to Fort Polk to shop at the

PX.   She walked through the government’s Burger King establishment

on her way, which was busy at the time.      She passed a trash can

that had trays on top of it.    A Burger King employee, Shandreika

Shaw-Thomas (Shaw), was standing by the trash can.        Ms. Toney

admitted that she had plenty of room, approximately two-and-a-half

to three feet, to go around Shaw.     According to Ms. Toney, as she

neared Shaw, seven or eight trays fell in her path.   She stepped on

the trays and fell to the floor, sustaining injuries.

      Ms. Toney believed that the trays fell “by accident” and were

not “purposefully” dropped by Shaw.    Although she did not see Shaw

do anything to cause the trays to fall, she testified that the only

way the trays could have fallen would have been through action by

Shaw.   There were no other people in the area besides Shaw.    Ms.

Toney also testified that noone tried to hold or catch her while

she was falling.   In addition, her purse did not catch on anything

or bump anything and no carts were present when she fell.

      Shaw testified that she was working with a cart with food



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trays at the time of Ms. Toney’s accident.              According to Shaw, the

bottom corner of Ms. Toney’s purse hit the trays and knocked them

to the floor.        Ms. Toney’s feet never contacted any of the trays

that fell.    In addition, Shaw testified that Ms. Toney slid to the

floor in a slow fashion as Shaw was picking up the trays.

       Two   other    witnesses   were       deposed.     Mary    Anderson,   the

government’s     Loss    Prevention      Supervisor,     testified     that   her

attention was called to the fall by a loud noise.                Anderson did not

see the fall, but she did see Ms. Toney getting up from the floor

into a chair.

       Betty Baker, the manager of the food court, testified that an

employee was emptying the trash can and was using a shopping cart

to do so.     According to Baker, this method had been used for many

years without an accident. Her testimony indicated that some trays

were sitting in the shopping cart at an angle, “in the area where

you would sit a child,” and the trays were stacked “kind of high.”

Baker testified that Ms. Toney told her that her purse strap “came

into contact with the shopping cart” as she came around the trash

can.   Baker did not see Ms. Toney’s purse catch the cart.               She did

see a couple of the trays fall out of the cart onto the floor.                She

then saw that the cart “rocked,” and saw Ms. Toney “easing down.”

She took Ms. Toney’s arm and helped her as she eased down onto the

floor.

       The defendant filed a motion for summary judgment, asserting



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that, under applicable Louisiana law, the United States was not

liable.      The    district   court    granted     the    motion    for   summary

judgment.    The plaintiffs now appeal.

                                       II.

      The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346 et

seq., is a limited waiver of sovereign immunity that subjects the

United States to liability to the same extent as a private party

for personal injury or property loss caused by the negligence of

its employees in the course and scope of their employment.                 Tindall

ex rel. Tindall v. United States, 901 F.2d 53, 55 (5th Cir. 1990).

The law of the state where the negligent act or omission occurs

determines liability.        Id.   The parties agree that Louisiana law

governs this action.

      Summary judgment is appropriate when, viewing the evidence in

the light most favorable to the non-moving party, no genuine issue

of material fact exists and the moving party is entitled to

judgment as a matter of law.           See Celotex Corp. v. Catrett, 477

U.S. 317, 322-24, 106 S. Ct. 2548, 2552-2554, 91 L.Ed.2d 265

(1986); see also Fed. R. Civ. P. 56(c).              If the burden at trial

rests on the non-movant, the movant must merely demonstrate an

absence of evidentiary support in the record for the non-movant’s

case.   Mississippi River Basin Alliance v. Westphal, 230 F.3d 170,

174   (5th   Cir.   2000).     The     non-movant    may    not     rely   on   mere

allegations in the pleadings; rather, the non-movant must respond


                                        4
to the motion for summary judgment by setting forth particular

facts indicating that there is a genuine issue for trial. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505,

2510, 91 L.Ed.2d 202 (1986).              If no reasonable juror could find for

the non-movant, summary judgment will be granted.                                Mississippi

River Basin, 230 F.3d at 174.               We review the district court’s grant

of summary judgment de novo, employing the same standards as did

the district court.           In the Matter of Placid Oil Co., 932 F.2d 394,

396 (5th Cir. 1991).

                                            III.

     The district court concluded that the United States was not

liable pursuant to the Louisiana Merchant Liability Act (“LMLA”),

LSA-R.S. 9:2800.6, which requires merchants to keep their premises

free of hazardous conditions.**                  We are satisfied that this case is


     **
          The LMLA provides in pertinent part:

     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.

                                                 5
not controlled by the LMLA but rather is governed by Louisiana’s

ordinary negligence principles.

      The law of merchant liability found in LSA-R.S. 9:2800.6 is

not the exclusive remedy of a plaintiff who is injured in an

accident on a merchant’s premises.                      See Crooks v. National Union

Fire Insurance Co., 620 So. 2d 421, 424 (La. Ct. App. 3d Cir.

1993).      Most of the jurisprudence applying part B of the LMLA

involves hazards caused by spilled liquid or items temporarily

present in an isle. See id.; see, e.g., Riolo v. National Tea Co.,

726 So. 2d 515 (La. Ct. App. 5th Cir. 1999); White v. Wal-Mart

Stores, Inc., 699 So.2d 1081 (La. 1997).                            When the accident is

allegedly the result of a specific act on the part of a merchant,

and not solely the result of a condition found on the premises,

ordinary negligence principles apply.                       See id.

      In Crooks v. National Union Fire Ins. Co., the plaintiff

tripped over a vacuum cleaner hose an employee was using to clean

the floor.      As the plaintiff attempted to step over the hose which

had been stretched across the aisle, she tripped and fell.                                       The




      (1) "Constructive notice" means 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. 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.

LSA-R.S. 9:2800.6 (emphasis added).


                                                 6
plaintiff alleged that the employee pulled the hose just as she

stepped over it, causing her to trip.                     The accident was allegedly

the result of a specific act on the part of the merchant’s

employee, and not the result of a condition of the premises.

Therefore,        the    Crooks      court       found     that    ordinary       negligence

principles applied.             Crooks, 620 So. 2d at 424.

       In Terral v. Waffle House, Inc., 684 So. 2d 1165 (La. Ct. App.

1st Cir. 1996), the plaintiff suffered eye injuries when a glass

container fell to the floor and shard glass struck the plaintiff in

the eye.       The plaintiff alleged, and the parties stipulated, that

an employee of the defendant had dropped a glass sugar container on

the floor, causing it to shatter.                         The court found that the

stipulations were sufficient to establish negligence on part of the

defendant.        The court made no mention of the LMLA.

       Crooks and Terral are analogous to the Toney’s case.                                  Ms.

Toney seeks to impose liability upon the government based on the

specific act of Shaw.            She does not seek to recover for a condition

of the premises.              Therefore, Ms. Toney’s claim does not fall

squarely within           the    scope     of    the     LMLA.      Ordinary      negligence

principles apply.***

                                                IV.



       ***
          The district court concluded that because this case is governed by the LMLA, the
doctrine of res ipsa loquitur is inapplicable. We need not decide whether res ipsa loquitur ever
applies in a LMLA case. Because this case is governed by ordinary negligence principles, res ipsa
loquitur has potential application if the appellants establish the necessary factual predicates.

                                                 7
     The district court rendered summary judgment for the defendant

because the plaintiff could not create a genuine issue of material

fact regarding Burger King’s constructive notice of a hazardous

condition under the LMLA.        For the reasons set forth above, we

conclude that the LMLA is inapplicable and that the appropriate

inquiry   is   whether   the   defendant    was   negligent   according   to

ordinary negligence principles.          We therefore VACATE the judgment

of the district court and REMAND the matter to the district court

for further proceedings.

     VACATED and REMANDED.




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