     Case: 19-30768      Document: 00515400564         Page: 1    Date Filed: 04/30/2020




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

                                                                           FILED
                                                                        April 30, 2020
                                      No. 19-30768                      Lyle W. Cayce
                                                                             Clerk

RAMONA MCDOWELL; CLIFF MCDOWELL,

               Plaintiffs - Appellants

v.

WAL-MART STORES, INCORPORATED,

               Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:17-CV-1712


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Ramona McDowell appeals the district court’s grant of summary
judgment on her claims arising from her fall in a Wal-Mart store. We AFFIRM.

                                       Background

       In 2016, McDowell went shopping at a Wal-Mart store in Louisiana.
While shopping, McDowell slipped and fell on a grocery aisle. The Wal-Mart



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 19-30768       Document: 00515400564         Page: 2     Date Filed: 04/30/2020



                                       No. 19-30768
manager and employees at the scene acknowledged that there was water on
the floor, and an employee was instructed to place a “wet floor” sign by the area
after McDowell’s fall. McDowell then noticed that her pants were wet. She
claims that she sustained severe knee injuries as a result of the fall. She
asserts that she does not know where the water came from or whether any
Wal-Mart employees knew about the water before her fall. McDowell’s fall was
not captured on video, but two surveillance videos captured part of one
entrance to the aisle and all of the other entrance. The videos show numerous
customers entering the aisle in the minutes leading up to McDowell’s fall.1
       McDowell avers that no employees or other customers were on the aisle
when she entered it. But the surveillance footage contradicts her claim. It
shows at least two other customers entering the aisle before McDowell and
exiting after the events in question.2 Indeed, McDowell contradicts herself and
admits that both customers entered the aisle as shown—and that at least one
was “on the aisle when the fall occurred”—when she argues that neither
customer was the source of the water that caused her fall.
       A Wal-Mart maintenance employee testified that maintenance personnel
were responsible for walking through the aisles to check for spills. A Wal-Mart
asset protection manager confirmed that maintenance employees are
responsible for walking the aisles “constantly” to look for hazards. No Wal-



       1 For example, less than ten minutes before McDowell enters the aisle, surveillance
footage shows a man with what appears to be an empty cart entering the aisle. Less than a
minute later, a woman with a full cart enters the aisle. Then, a man with what looks to be a
gallon of milk in his cart follows. About five minutes before McDowell’s fall, a woman with a
small child and full cart enters the aisle.
       2 The surveillance footage shows a female customer in a motorized cart entering the
aisle around ninety seconds before McDowell’s fall and exiting over sixty seconds after it. It
also shows a male customer entering the aisle about twenty seconds before McDowell’s fall
and exiting the aisle approximately twenty seconds after her fall. Additionally, because one
video shows only part of the entrance to the aisle, more customers may have entered or exited
the aisle without appearing on the video.
                                              2
    Case: 19-30768    Document: 00515400564      Page: 3    Date Filed: 04/30/2020



                                 No. 19-30768
Mart employees traversed the aisle in the hour leading up to McDowell’s fall.
Instead, employees walked past—and looked down—the aisle three times in
the ten minutes leading up to McDowell’s fall. A Wal-Mart employee last
looked down the aisle about thirty seconds before the fall.
      After the accident, McDowell sued Wal-Mart in Louisiana state court.
Wal-Mart removed to federal court on diversity grounds. It then moved for
summary judgment. The district court granted Wal-Mart’s motion, holding
that McDowell had failed to show that Wal-Mart had actual or constructive
notice of the water as required by Louisiana law. McDowell timely appealed.

                                Standard of Review

      We review a district court’s grant of summary judgment de novo. Bagley
v. Albertsons, Inc., 492 F.3d 328, 330 (5th Cir. 2007). Summary judgment is
proper if “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).
      In reviewing a grant of summary judgment, we generally view the facts
and the inferences to be drawn therefrom in the light most favorable to the
nonmovant. Bagley, 492 F.3d at 329 n.1. But when a party’s testimony “is
blatantly contradicted by the record [such as by a videotape], so that no
reasonable jury could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment.” Scott v.
Harris, 550 U.S. 372, 380 (2007).

                                     Discussion

      McDowell’s negligence claim is governed by the Louisiana Merchant
Liability Statute. That statute provides:
            [T]he claimant shall have the burden of proving, in
            addition to all other elements of his cause of action, all
            of the following:

                                        3
    Case: 19-30768    Document: 00515400564      Page: 4   Date Filed: 04/30/2020



                                 No. 19-30768
            (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.
LA. REV. STAT. ANN. § 9:2800.6(B).
      McDowell does not claim that Wal-Mart created or had actual notice of
the water on which she slipped. Thus, to survive summary judgment, she must
present evidence creating a genuine factual dispute as to whether Wal-Mart
had constructive notice of the water before her fall. Id. § 9:2800.6(B)(2). Under
Louisiana law,
            “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.
Id. § 2800.6(C)(1).
      “The Louisiana Supreme Court has interpreted [the constructive notice]
statute to mean that the plaintiff has the burden of showing the dangerous
condition existed for some discrete period of time; it is not enough simply to
show that the condition existed before the plaintiff’s injury.”         Adams v.
Dolgencorp, L.L.C., 559 F. App’x 383, 385 (5th Cir. 2014) (per curiam). “The
statute ‘places a heavy burden of proof on plaintiffs’ in slip and fall cases.”
Bagley, 492 F.3d at 330 (quoting Jones v. Brookshire Grocery Co., 847 So. 2d
43, 48 (La. Ct. App. 2003)).


                                       4
    Case: 19-30768    Document: 00515400564     Page: 5   Date Filed: 04/30/2020



                                 No. 19-30768
      To show constructive notice, “the claimant must 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.” White v. Wal-Mart Stores, Inc., 699 So.
2d 1081, 1082 (La. 1997). As we have stated, “[w]hether the period of time that
a condition existed was sufficient to provide a merchant with constructive
notice is a fact question that must be submitted to the jury.” Bagley, 492 F.3d
at 331. “[H]owever, there remains the prerequisite showing of some time
period.” Id. (quoting Allen v. Wal–Mart Stores, Inc., 850 So. 2d 895, 898 (La.
Ct. App. 2003)).     While we have refused to adopt a bright-line time
requirement, “some positive evidence is required of how long the condition
existed prior to the fall.”   Bagley, 492 F.3d at 331 (quoting Robinson v.
Brookshires # 26, 769 So. 2d 639, 642 (La. Ct. App. 2000)).
      McDowell points to no positive evidence of how long the water on which
she fell was there before her accident. See Bagley, 492 F.3d at 331. She has
presented no surveillance footage of the spill, the water on the ground, or her
fall; nor has she provided any other evidence such as testimony. Instead, she
speculates on the likelihood that various customers caused the spill. But
“[m]ere speculation . . . is not sufficient to meet [McDowell’s] burden, and [we]
will not infer constructive notice for purposes of summary judgment where
[her] allegations are no more likely than any other potential scenario.” Taylor
v. Wal-Mart Stores, Inc., 464 F. App’x 337, 339 (5th Cir. 2012) (per curiam)
(quoting Bagley, 492 F.3d at 330).
      Indeed, the evidence in this case demonstrates that two other customers
were on the aisle when McDowell fell.        McDowell denies that any other
customers were on the aisle at that time.        But the surveillance footage
contradicts her claim. McDowell even contradicts herself: she admits that two
customers entered the aisle as shown—and that at least one was “on the aisle
                                       5
     Case: 19-30768    Document: 00515400564      Page: 6   Date Filed: 04/30/2020



                                  No. 19-30768
when the fall occurred”—when she argues that neither customer was the
source of the water that caused her fall.
      When reviewing a grant of summary judgment, we generally view the
facts in the light most favorable to the nonmovant, but when a party’s
testimony “is blatantly contradicted by the record, so that no reasonable jury
could believe it, [we will] not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.” Scott, 550 U.S. at 380. Such
contradiction exists when, as here, a party’s testimony is belied by video
evidence that neither party says is inaccurate. Id. at 378. Given that two other
people entered the aisle in the ninety seconds before McDowell did and, by all
indications, exited after the events in question, the water on which McDowell
slipped could have appeared mere seconds before her accident. See supra n.2.
McDowell has not presented sufficient evidence to create a genuine factual
dispute as to whether Wal-Mart had constructive notice of the water on which
she fell.
      McDowell relies on several of our decisions in an attempt to avoid this
result. She first cites Bagley, 492 F.3d 328, a slip-and-fall case in which we
reversed the district court’s grant of summary judgment on the issue of
constructive notice. But Bagley involved unique facts. There, the plaintiff
slipped on what appeared to be “meat blood” that may have leaked from a
shopping cart. Bagley, 492 F.3d at 330. There were no other customers on the
aisle when the plaintiff slipped. Id. at 329. But when a fireman came to assist
the plaintiff after she fell, he too slipped in the liquid; he later testified that
the “meat blood” extended down the aisle and into the adjoining aisle. Id. at
329–30. We concluded that the size of the spill, the likelihood that the liquid
came from a package of meat in a shopping cart, and the fact that no other
customer was on the aisle when the plaintiff fell warranted a “reasonable
inference” that the liquid had been on the floor for “some period of time” before
                                        6
     Case: 19-30768       Document: 00515400564          Page: 7     Date Filed: 04/30/2020



                                       No. 19-30768
the accident. Id. at 331. Here, no evidence suggests that the spill was large or
that it came from the cart of a shopper who had had sufficient time to exit the
aisle. Indeed, at least two other customers were on the aisle when McDowell
fell. Bagley is thus distinguishable.3
       Instead, McDowell’s evidence is closer to that in our non-precedential but
persuasive case of Adams, 559 F. App’x 383. In Adams, the plaintiff slipped
and fell on spilled lotion in a Dollar General aisle. Id. at 384. The plaintiff
presented evidence that a Dollar General employee was in the vicinity of the
spilled lotion along with security camera footage of the plaintiff walking to the
aisle where she fell. Id. at 385–86. But the plaintiff “failed to present any
evidence of how or why the lotion was spilled, much less any showing that [the
nearby employee] or any other Dollar General employee were exercising less
than reasonable care in not discovering it.” Id. at 386. We affirmed the district
court’s grant of summary judgment. Id.4
       McDowell has presented no positive evidence of how long the water at
issue was on the floor before she fell. Instead, she asks us to infer from a lack
of evidence that the spill was there for a sufficient period of time to create a
factual dispute on constructive notice. But “[b]ecause it is the claimant’s
burden to prove the existence of the condition for some period of time, the
absence of evidence cannot support the claimant’s cause of action. Rather, the
absence of evidence is fatal to the claimant’s cause of action.” Oster v. Winn-
Dixie La., Inc., 881 So. 2d 1257, 1261 (La. Ct. App. 2004).



       3 Our unpublished decision in Courville v. Target Corp. of Minnesota, 232 F. App’x
389 (5th Cir. 2007) (per curiam) also does not support a different outcome. In that case, the
defendant’s manager admitted that its employees “should have cleaned [the spill] up; they
should have seen it.” Id. at 392. No such evidence was presented here.
       4   McDowell asserts that Adams is distinguishable because in that case, the plaintiff
relied solely on the employee’s proximity to infer constructive notice. But, as here, the video
evidence in Adams did not show the aisle in question.
                                              7
Case: 19-30768   Document: 00515400564   Page: 8   Date Filed: 04/30/2020



                          No. 19-30768
 AFFIRMED.




                                8
