     Case: 12-30078     Document: 00512013987         Page: 1     Date Filed: 10/09/2012




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

                                                                            FILED
                                                                          October 9, 2012

                                       No. 12-30078                        Lyle W. Cayce
                                                                                Clerk

LYNN G. FERRANT,

                                                  Plaintiff - Appellant
v.

LOWE’S HOME CENTERS, INCORPORATED,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:10-CV-4370


Before KING, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Lynn Ferrant brought suit against Defendant-Appellee
Lowe’s Home Centers, Inc., after she fell while shopping at a Lowe’s home
improvement store. Applying Louisiana law, the district court granted summary
judgment in favor of Lowe’s. We affirm.
              I. FACTUAL AND PROCEDURAL BACKGROUND
        While walking down an aisle at a Lowe’s home improvement store in
Hammond, Louisiana, Lynn Ferrant tripped and fell after passing 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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merchandise pallet stocked with light bulbs. Ferrant’s companion, George
Crater, was following close behind her and went to assist her after she fell.
Ferrant alleged that her accident was caused by a board protruding from the
bottom of the pallet, although neither she nor Crater actually saw her trip over
the board. Rather, Crater claims that he noticed the board after Ferrant fell,
assumed that it was the reason for her accident, and pushed the board back into
place. After the accident, store employees assisted Ferrant, inspected the area,
took photographs of the pallet, and completed an incident report. Lowe’s
employees did not notice any defects in the pallet.
      Ferrant brought suit against Lowe’s in state court, asserting that Lowe’s
negligence caused her injuries. Lowe’s removed the case to federal court and
later moved for summary judgment. The district court granted summary
judgment in favor of Lowe’s, and Ferrant appealed.
                               II. DISCUSSION
      We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. See United States v. Caremark, Inc.,
634 F.3d 808, 814 (5th Cir. 2011). Summary judgment is warranted “if the
movant shows that 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). We view
the evidence in the light most favorable to the non-moving party. See Caremark,
634 F.3d at 814.
      This case is governed by the Louisiana Merchant Liability Act, 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. 2 Cir. 2003). Under the Merchant Liability Act, “[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,”
and this duty “includes a reasonable effort to keep the premises free of any

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                                  No. 12-30078

hazardous conditions which reasonably might give rise to damage.” LA. REV.
STAT. ANN. § 9:2800.6(A). The Merchant Liability Act further provides:
      (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.
Id. § 9:2800.6(B). “The burden of proof [under the statute] does not shift to the
defendant at any point and failure to prove any one of these elements negates
a plaintiff’s cause of action.” Melancon v. Popeye’s Famous Fried Chicken, 59 So.
3d 513, 515 (La. App. 3 Cir. 2011) (citing White v. Wal-Mart Stores, Inc., 699 So.
2d 1081 (La. 1997)).
      For purposes of summary judgment, Lowe’s assumed that Ferrant’s fall
was caused by a board protruding from a merchandise pallet, and that the
protruding board constituted an unreasonably dangerous condition. Lowe’s
focused its defense upon the second requirement of § 9:2800.6(B), arguing that
Ferrant presented no genuine dispute of material fact that Lowe’s either created
the dangerous condition or had notice thereof. The district court agreed and
dismissed the suit. On appeal, Ferrant contends that genuine disputes of
material fact preclude summary judgment.

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       To satisfy the second requirement of § 9:2800.6(B), a claimant must prove
either that the merchant “created” the condition at issue, or had “actual or
constructive notice” thereof. LA. REV. STAT. ANN. § 9:2800.6(B)(2). We consider
first constructive notice.1 Under the Merchant Liability Act, “constructive notice”
means that “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.” Id. § 9:2800.6(C)(1). With respect to the constructive notice
requirement, the Supreme Court of Louisiana in White explained:
       The statute does not allow for the inference of constructive notice
       absent some showing of [a] temporal element. The claimant must
       make a positive showing of the existence of the condition prior to the
       fall. A defendant merchant does not have to make a positive
       showing of the absence of the existence of the condition prior to the
       fall. Notwithstanding that such would require proving a negative,
       the statute simply does not provide for a shifting of the burden.
699 So. 2d at 1084 (emphasis added). The court then continued:
       Though there is no bright line time period, a claimant must show
       that “the condition existed for such a period of time . . . ” Whether
       the period of time is sufficiently lengthy that a merchant should
       have discovered the condition is necessarily a fact question;
       however, there remains the prerequisite showing of some time
       period. 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. 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.




       1
         Although Ferrant asserts on appeal that “Lowe’s . . . had actual or at least
constructive notice” of the condition, she does not address the actual notice issue in any detail.
Inasmuch as Ferrant asserts an actual notice argument, she has failed to brief the issue and
has therefore waived it. See United States v. Lopez-Velasquez, 526 F.3d 804, 808 n. 2 (5th Cir.
2008) (“Arguments inadequately briefed on appeal are waived.”).

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Id. at 1084-85 (emphasis added).2 Our review of the record reveals no genuine
dispute of material fact with respect to constructive notice. As Ferrant produced
no evidence whatsoever to show that the protruding board existed for some
period of time before her fall, she cannot carry her burden of proof as to
constructive notice as mandated by § 9:2800.6(B). See id. at 1084.
       We also find no genuine dispute of material fact with respect to whether
Lowe’s created the dangerous condition at issue. Over the course of this
litigation, Ferrant has offered varying theories as to the dangerous condition
that Lowe’s is alleged to have created. She originally alleged that her fall was
caused by a broken board protruding from the bottom of the pallet, but later
asserted that her accident was due to Lowe’s positioning of the pallet—whether
damaged or not—in the aisle, which created an unreasonably narrow passage
space. Summary judgment was proper under either theory.
       To prove that a merchant created a condition which caused an accident,
“there must be proof that the merchant is directly responsible for the . . .
hazardous condition.” Ross v. Schwegmann Giant Super Markets, Inc., 734 So.
2d 910, 913 (La. App. 1 Cir. 1999); see Savoie v. Sw. La. Hosp. Ass’n, 866 So. 2d
1078, 1081 (La. App. 3 Cir. 2004) (finding that hospital created hazard where
wax buildup on floor caused plaintiff to fall, because hospital “maintain[ed] its
own floors”); see also Broussard v. Outback Steakhouse of Fla., Inc., 146 F. App’x
710, 714 (5th Cir. 2005) (under § 9:2800.6, “[plaintiff] was required to present
evidence from which a reasonable jury could find that Outback created a
hazard”). On summary judgment, Ferrant failed to demonstrate a genuine

       2
          Ferrant argues that Louisiana law distinguishes between “slip and fall” cases and
“trip and fall” cases, and that we should not apply “slip and fall” case law here. According to
Ferrant, slip and fall cases are distinguishable because the dangerous condition in such cases
is more likely to have been caused by a third party rather than a store employee. The
Merchant Liability Act contains no such distinction, and Louisiana courts routinely apply
§ 9:2800.6 and White in both types of cases. See, e.g., Jones, 847 So. 2d at 48 (“Merchant
liability for slip or trip and fall cases is governed by La. R.S. 9:2800.6 . . . .”) (emphasis added).

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dispute of material fact regarding Lowe’s alleged creation of the broken pallet.
Before the district court and on appeal, Ferrant relies upon evidence suggesting
that Lowe’s had complete care, custody, and control of the pallet, and had moved
the pallet into place on the night before the accident. She also relies upon Lowe’s
failure to present evidence that a third party tampered with the pallet after it
was put into position. Louisiana law does not, however, allow us to infer that a
merchant created a dangerous condition merely because that merchant had
custody or control over the item at issue and failed to prove that a third party
was at fault. Such an inference would essentially shift the burden of proof to
Lowe’s, which § 9:2800.6 does not permit. See White, 699 So. 2d at 1085 (“La.
R.S. 9:2800.6(B) clearly and unambiguously requires the claimant to prove each
of its three subsections with no shifting of the burden . . . .”). Without a genuine
dispute of material fact on this issue, summary judgment was proper.
      We also reject Ferrant’s argument that there exists a genuine dispute of
material fact regarding Lowe’s positioning of the pallet in the aisle. As noted
above, the parties agreed for summary judgment purposes that Ferrant’s fall
was caused by a broken board protruding from the pallet. The parties did not,
however, agree that the placement of the pallet itself was to blame for Ferrant’s
accident. To defeat summary judgment, therefore, Ferrant would have to
demonstrate a genuine dispute of material fact as to all three requirements of
§ 9:2800.6(B). Even if we assume that Lowe’s employees placed the pallet in the
aisle and thereby created the condition at issue, there is no evidence whatsoever
that this placement “presented an unreasonable risk of harm” that was
“reasonably foreseeable.” LA. REV. STAT. ANN. § 9:2800.6(B)(1). In fact, the record
evidence demonstrates the contrary. Ferrant testified that she passed multiple
pallets that were placed at approximately the same distance from the shelves as
was the offending pallet, but did not trip until she reached the midpoint of the
aisle. She further testified that the space between the shelves and the pallet was

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wide enough to fit a shopping cart. Without evidence that the placement of the
pallet itself created an unreasonable risk of harm, Ferrant cannot defeat
summary judgment on this theory.3
       Finally, Ferrant argues that the district court erred in granting summary
judgment without allowing for further discovery that may have produced photos
of the pallet at issue, employee witnesses, and additional video surveillance
footage. Discovery matters are reviewed for an abuse of discretion. See Scott v.
Monsanto Co., 868 F.2d 786, 793 (5th Cir. 1989). We have stated that “Rule 56
does not require that any discovery take place before summary judgment can be
granted; if a party cannot adequately defend such a motion, Rule 56[(d)] is [the]
remedy.” Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990).4
Pursuant to Rule 56(d), a non-movant on summary judgment may request a
continuance for further discovery. In order to obtain a Rule 56(d) continuance,
however, the non-movant must “show[ ] by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition.” FED.
R. CIV. P. 56(d). This “‘court has foreclosed a party’s contention on appeal that
it had inadequate time to marshal evidence to defend against summary
judgment when the party did not seek Rule 56([d]) relief before the summary
judgment ruling.’” Carner v. La. Health Serv. & Indem. Co., 442 F. App’x 957,
961 (5th Cir. 2011); see Potter v. Delta Air Lines, Inc., 98 F.3d 881, 887 (5th Cir.



       3
          We also note that courts applying Louisiana law have routinely rejected merchant
liability claims based upon the placement of a merchandise pallet. See, e.g., Taylor v. Wal-Mart
Stores, Inc., No. 05-1346-A, 2006 WL 1476031, at *2 (W.D. La. May 23, 2006) (“A pallet filled
with merchandise in the center of an aisle is a condition any customer would reasonably expect
to encounter, and it presents no inherent hazard to the customer exercising reasonable care.”);
see also Reed v. Home Depot, Inc., 843 So. 2d 588, 592 (La. App. 2 Cir. 2003) (“A pallet does not
inherently pose an unreasonable risk of harm.”).
       4
         Rule 56 was amended in 2010, and the advisory committee notes to the 2010
amendments state that “Subdivision (d) carries forward without substantial change the
provisions of former subdivision (f).” FED. R. CIV. P. 56(d) advisory committee’s note.

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1996) (“If [plaintiff] needed more discovery in order to defeat summary
judgment, it was up to her to move for a continuance pursuant to rule 56([d]).
Because she did not, she is foreclosed from arguing that she did not have
adequate time for discovery.”). Although Ferrant’s response to Lowe’s summary
judgment motion stated that “[d]iscovery is not complete in this case,” she never
sought relief under Rule 56(d). As Ferrant did not seek such relief, she cannot
argue that the district court erred in granting summary judgment without
allowing for sufficient discovery.
                              III. CONCLUSION
      In light of the foregoing, the judgment of the district court is AFFIRMED.




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