     Case: 16-30643      Document: 00513903598         Page: 1    Date Filed: 03/08/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 16-30643                              FILED
                                                                            March 8, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk

LORING DESHOTEL, As Administratrix of the Estate of Amanda Riggio,
Substituted in Place and Stead of Amanda Riggio, Deceased,

                                                 Plaintiff–Appellant,

versus

WAL-MART LOUISIANA, L.L.C.,

                                                 Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana




Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

       Amanda Riggio 1 slipped and fell in a Wal-Mart store in September 2012.
She sued, alleging that she had slipped on water that had leaked onto the floor
from a negligently maintained roof. The district court entered a summary


       1Riggio was the original plaintiff but died, so her administratrix, Loring Deshotel,
was substituted. For the sake of clarity and brevity, we refer to the plaintiff as “Riggio.”
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                                 No. 16-30643
judgment in Wal-Mart’s favor. Finding multiple disputes of material fact, we
reverse and remand.

                                       I.
                                       A.
      This incident is relatively quotidian. While shopping, Riggio slipped and
fell. Her sister witnessed the fall. Lorraine Johnson, a Wal-Mart employee
who may or may not have been present at the fall but was certainly there
immediately thereafter, retrieved a wheelchair in which Riggio left the store.
Her sister took her to an emergency room.

      Also responding was Anthony Chester, the manager, who filed an inci-
dent report that recorded the area in which Riggio slipped as “clean,” though
with “small drops of water” on it, and indicated that the weather was “rainy.”
The source of the water was listed as “unknown.”

      Both parties acknowledge that the store had roof leaks but differ as to
their scope and frequency; Riggio suggests they were occurring all over the
store, but Wal-Mart claims they were confined to a few discrete areas where
new skylights had been installed. Wal-Mart also maintains that there is no
evidence that the water came from the roof; Riggio, unsurprisingly, disagrees.

                                       B.
       Riggio asserts that she slipped on water from the leaking roof, which
Wal-Mart had negligently maintained, and thus is entitled to damages. The
relevant law in this diversity case is Louisiana Revised Statutes § 9:2800.6 (B),
which requires, in pertinent part, that

   [i]n 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
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                                      No. 16-30643
     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 deter-
           mining reasonable care, the absence of a written or verbal uniform
           cleanup or safety procedure is insufficient, alone, to prove failure
           to exercise reasonable care.
In its motion for summary judgment, Wal-Mart averred only that Riggio could
not satisfy the second prong—that is, that she could show neither that Wal-
Mart created the condition that caused her fall nor that it had actual or
constructive notice of the offending water. Riggio opposed summary judgment
by contending that Wal-Mart created the hazard and had constructive notice
of it. 2

                                            II.
           This court reviews a summary judgment de novo. Rogers v. Bromac Title
Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is called
for only “if the movant shows 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). Genuine disputes of material fact are present where a reasonable jury
could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). When reviewing a summary judgment, we construe all facts
and inferences in favor of the nonmoving party.                  McFaul v. Valenzuela,
684 F.3d 564, 571 (5th Cir. 2012).




         Riggio has abandoned this second argument and challenges the district court’s deci-
           2

sion only in regard to the creation of the hazard.
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                                    No. 16-30643
                                        III.
      The two pertinent questions are, first, whether Riggio has provided
enough evidence that a reasonable jury could find that she slipped on water
that leaked through the roof, and second, whether Wal-Mart’s purportedly neg-
ligent maintenance of the roof could suffice to show that it “created . . . the
condition which caused the damage” under Section 9:2800.6. Because we
answer both questions in the affirmative, we reverse and remand.

                                         A.
      The parties tell different stories regarding the cause of Riggio’s fall. In
Wal-Mart’s account, she cannot establish where she fell. The store did have
roof leaks, but they were in discrete locations—only under faultily installed
skylights—and had been mended before the accident. In other words, accord-
ing to Wal-Mart, Riggio cannot establish where she fell, but in any event it was
not under a skylight.

      Riggio claims, to the contrary, that the store was plagued by a chronically
leaky roof. It had been leaking since at least the beginning of 2012, had sprung
new leaks with some regularity, and had continued to leak up to the day of
Riggio’s injury. Indeed, it was a previously unidentified leak that caused the
accident―how else to explain the water on the floor? And only after her fall
did Wal-Mart fully fix the leaks.

      At the summary-judgment stage, we decide only whether Riggio’s ac-
count is plausible enough that a reasonable jury could believe it. Cf. Anderson,
477 U.S. at 248. Because there are disputes of material fact, a jury could so
believe.

      The first dispute is over the weather. Riggio testified that it was damp
outside, suggesting that it had recently rained. Her sister said that it had not
rained that day but had been raining on preceding days. The incident report,
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                                     No. 16-30643
filled out the day of the accident, listed the weather as “rainy.” If it had been
raining the day of Riggio’s fall, that would suggest that leaks from the roof
would have been more likely to occur.

      The facts are also uncertain as to how long the leaks had persisted. Wal-
Mart claims they began in May 2012, when the new skylights were installed.
But Chester’s testimony suggests that the leaks predated the installation of
the new skylights; he stated unequivocally that the leaks were a problem when
he started his job in February 2012, even though the new skylights were not
fitted until May. His testimony additionally suggests the roof was leaking on
the day of Riggio’s injury. And there are photographs in the record, purport-
edly from that day, showing buckets and caution signs in various parts of the
store. 3 It would be odd for Wal-Mart to have continued to put out these imple-
ments if there was not concern that the roof continued to leak.

      The final, and key, dispute concerns the extent of the leaks. Wal-Mart
maintains they were confined to specific areas of the store—that they stemmed
from the installation of new skylights and were only in specific locations. But
the record also provides support for a generally leaky roof. Chester testified
that there were “leaks throughout the building,” as distinguished from the
isolated areas that Wal-Mart suggests were the only trouble spots.

      More importantly, Chester suggested that the building was springing
new leaks during that time, stating the new leaks were a “known issue” and
that “anybody in the building . . . would be on the lookout for new leaks that
had not been identified or marked” when it rained. Moreover, there is a
document, dated August 2012, that shows that Wal-Mart billed a roofing




      3Riggio claims the buckets and caution signs were near the site of her incident, but
Wal-Mart disagrees—another dispute.
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                                  No. 16-30643
contractor for something called “roof recover.” At oral argument, Wal-Mart
was unable to explain what “roof recover” meant, but a reasonable jury could
conclude that such a bill suggests repairs to the entirety of the roof, as opposed
to the comparatively minor skylight installations and repairs Wal-Mart has
said were made.

      Additionally, Riggio offered the expert affidavit of Steven Arabie, who
testified that the roof was “losing its ability to prevent rain water from leaking
into the building.” He based that opinion on his many years’ professional
experience as a roofing contractor, his review of Chester’s testimony, and the
records indicating that the roof was about twenty years old, near the end of its
effective lifespan. The district court dismissed Arabie’s affidavit solely on the
ground that Arabie had never inspected the roof of this particular store.

      But there is no requirement that an expert derive his opinion from “first-
hand knowledge or observation.”       See Wellogix, Inc. v. Accenture, L.L.P.,
716 F.3d 867, 876 (5th Cir. 2013) (quoting Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 592 (1993)). Indeed, the expert testimony in Wellogix was
startlingly similar to the evidence here: The expert based his testimony purely
on his industry experience and his review of a deposition, and we held that a
jury could reasonably credit his testimony. Id.

      A useful contrast can be drawn between the evidence here and the evi-
dence in Bearb v. Wal-Mart La., L.L.C., 534 F. App’x 264 (5th Cir. 2013) (per
curiam). There, the only evidence that a leaky skylight created a puddle on
the floor was “speculation and [the plaintiffs’] own unsubstantiated state-
ments.” We affirmed summary judgment. Id. at 265.

      Here, by contrast, a jury could choose to credit both Arabie’s opinion and
Chester’s testimony with regard to the fact that the roof was springing new
leaks, even outside the area of the new skylights. And a reasonable jury could
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                                    No. 16-30643
also conclude that it was raining, or at least had rained recently, on the day of
Riggio’s fall. The only inference left for the jury would be to conclude that the
“small drops of water” stemmed from the generally leaky roof. There is no
direct evidence on this point, but the summary-judgment standard requires
that we construe inferences in favor of the nonmoving party, McFaul, 684 F.3d
at 571, and it is no great logical leap to conclude that a generally leaky roof on
a rainy day may have been the cause of otherwise unexplained water on the
floor.

         In other words, a reasonable jury could find that the leaking roof caused
Riggio’s fall. That is enough for her to survive summary judgment on this
point.

                                         B.

         The next question is whether potentially negligent maintenance of a roof
can qualify as “creation” of a hazard under Louisiana law. Both this court and
Louisiana state courts have repeatedly considered what precisely constitutes
creation of a hazardous condition.

         “[T]he wording of [§ 9:2800.6(B)(2) ] . . . means there must be proof that
the merchant is directly responsible for the spill or other hazardous condition.”
Ross v. Schwegmann Giant Super Markets, Inc., 734 So. 2d 910, 913 (La. 1st
Cir.), writ denied, 748 So. 2d 444 (1999). When a defendant “maintains its own
floors, the [plaintiffs] are not required to prove that it had notice or construc-
tive notice of the possible [hazard]. If there [is] a [hazard], [defendant] created
it, thus, the notice requirement of La. R.S. 9:2800.6 does not apply . . . .”
Savoie v. Sw. La. Hosp. Ass’n¸ 866 So. 2d 1078, 1081 (La. 3d Cir. 2004). We
have held similarly to Savoie, suggesting that “courts have required proof that
an employee’s action caused the plaintiffs’ injury” to impose liability under
§ 9:2800.6, and that because “[a]ppellants pointed neither the district court nor
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                                  No. 16-30643
this court to any evidence showing that [the defendant’s] employees were
responsible for the holes in [the defendant’s] roof, nor any evidence showing
that [the defendant] was responsible for maintaining its own roof,” the plaintiff
failed to show that the defendant created the hazard at issue. Gray v. Wal-
Mart La., L.L.C., 484 F. App’x 963, 966 (5th Cir. 2012) (per curiam).

       Synthesizing these cases, it is evident that for the defendant to have
“created” the hazardous condition, it must be “directly responsible” for the
plaintiff’s injuries. Ross, 734 So. 2d at 913. That direct responsibility can be
shown in one of two ways—either via evidence that the defendant’s employees
actually created the hazard (by, for example, spilling crab salad on the floor,
as was alleged in Ross) or evidence that the defendant was responsible for
maintaining the area where the hazardous condition was manifest, as in
Savoie and Gray.

       Wal-Mart tries to elide this distinction in two ways. First, it posits that
the law requires that it must have had notice of the condition no matter what.
But that is not so, as Gray and the plain meaning of the statute make clear;
plaintiffs must prove either creation of the hazard or actual or constructive
notice thereof. There is no requirement of notice when it comes to creation of
the hazard.

       Second, Wal-Mart theorizes that because the particular hazard that
caused Riggio’s injury emerged not through direct action by its employees but
rather through a failure to remedy a dangerous condition, Wal-Mart was not
“directly responsible” within the meaning of Ross, id. Wal-Mart seems to think
that so long as its employees did not personally create the leaks—by, say, mak-
ing holes in the roof to affix some object—Wal-Mart escapes liability under the
statute. To hold otherwise, it urges, would be to convert the statute into “strict
liability.”

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                                  No. 16-30643
      We do not read the statute so harshly.         The ordinary meaning of
“creation” admits of creation both through direct action—pounding holes into
the roof with hammers—and failure to act—e.g., a failure to fix a known leaky
roof, leading to the creation of hazardous puddles on the floor. And the claim
that we would be reading strict liability into the statute significantly over-
states the hardship to Wal-Mart, for several reasons.

      First, of course, there is the procedural posture of this case, which Wal-
Mart avoids. By reversing the summary judgment, we only permit a jury to
find that Wal-Mart created the hazard; we make no such finding ourselves.
Second, there are other provisions in the statute, which are not at issue on this
appeal, that a plaintiff must satisfy before a defendant can be held liable—
namely, that the condition created an unreasonable risk of harm and that the
defendant failed to exercise reasonable care.        See LA. REV. STAT. ANN.
§ 9:2800.6(B).

      Finally, Louisiana precedent is explicit that Wal-Mart’s notion is incor-
rect. See Savoie, 866 So. 2d at 1081 (holding that because the defendant main-
tained the floors on which the hazard occurred, it created the hazard). Main-
tenance, under Louisiana courts’ interpretation of Louisiana law, is enough for
creation. And Wal-Mart has not provided reasons for us to disregard that legal
reality.

      This case is close to Gray. But there, the plaintiff’s case was deficient
because the record provided evidence neither that the store was responsible for
the maintenance of its own roof nor that employees had caused the roof leak.
Gray, 484 F. App’x at 966. Evidence satisfying either of those conditions would
have sufficed to deny summary judgment. Here, by contrast, there are billing
records showing that Wal-Mart paid for repairs on the roof near the date of
Riggio’s fall, as well as evidence that Wal-Mart paid for a full roof repair after

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                                No. 16-30643
Riggio’s injury. We agree with Gray that evidence of “maint[enance of] its own
roof” is enough to conclude that Wal-Mart created the hazardous condition
through its failure of maintenance. A reasonable jury could find that evidence
here.

        The summary judgment is REVERSED and REMANDED. We place no
limitation on the matters the district court may address and decide on remand,
nor do we suggest what are the ultimate merits of Riggio’s claim.




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