     Case: 17-30151      Document: 00514109861         Page: 1    Date Filed: 08/09/2017




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

                                    No. 17-30151
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                         August 9, 2017
                                                                           Lyle W. Cayce
BEATRICE DEROUSSELLE,                                                           Clerk


              Plaintiff - Appellant

v.

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

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:16-CV-1047


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Beatrice Derousselle appeals from the district court’s
grant of Defendant-Appellee Wal-Mart Louisiana, L.L.C.’s motion for
summary judgment. Because we agree that the evidence does not raise a
genuine dispute of material fact on an essential element of her claim, we
AFFIRM.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 17-30151
                                 I. Background
      On the morning of September 26, 2015, Beatrice Derousselle slipped and
fell while walking through the “cold-cut” department of a Wal-Mart in
Opelousas, Louisiana. She alleges that she was injured by the fall and ensuing
impact.
      The culprit behind Derousselle’s fall was a green grape. The details of
the grape’s journey to the scene of the accident remain unknown; neither
Derousselle nor any Wal-Mart employee could say how or when the grape
arrived on the floor of the cold-cut department. Employees for Wal-Mart were
also unsure if and when the floor was inspected for spills and other hazards on
the morning of the incident.
      Derousselle sued Wal-Mart in state court and alleged that Wal-Mart was
solely liable for her injuries under Louisiana Revised Statute § 9:2800.6. After
removal to federal court based upon diversity jurisdiction, Wal-Mart moved for
summary judgment on the ground that Derousselle could not satisfy the notice
requirement of § 9:2800.6(B). Specifically, Wal-Mart argued that there was no
evidence in the record that the grape was on the floor for some time before
Derousselle slipped and fell. Derousselle responded that there were disputes
of material fact and that Wal-Mart was liable because of a lack of safety policies
and employee training on inspecting the store for spills. The district court
agreed with Wal-Mart that Derousselle failed to provide any evidence of “how
the grape came to be at the location of the accident” and therefore could not
meet the notice requirement of § 9:2800.6(B), rendering Derousselle’s
arguments about safety policies and employee training irrelevant. The district




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                                   No. 17-30151
court granted summary judgment in favor of Wal-Mart, a judgment
Derousselle timely appealed.
                              II. Standard of Review
      We review a grant of summary judgment de novo, applying the same
standard applied by the court below. Martinez v. Tex. Workforce Comm’n-Civil
Rights Div., 775 F.3d 685, 687 (5th Cir. 2014) (per curiam).              Summary
judgment is appropriate where “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). All facts and evidence are viewed in the light most favorable to the
nonmoving party. Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 531 (5th
Cir. 2015).
                                  III. Discussion
      In order to establish merchant liability for a slip and fall in Louisiana, a
claimant must prove, inter alia, that:
              (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[; and] (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. Stat. 9:2800.6(B).
      Derousselle’s appeal turns on the second requirement of § 9:2800.6(B):
that the merchant either create the condition or have constructive or actual
knowledge of the condition. To demonstrate constructive notice, a claimant
must prove “that the condition existed for such a period of time that it would
have been discovered if the merchant had exercised reasonable care.”
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                                       No. 17-30151
§ 9:2800.6(C)(1). “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.
       The Louisiana Supreme Court has held that a claimant relying on the
constructive notice element of § 9:2800.6(B)(2) “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) (emphasis added). 1 We have echoed this requirement
in upholding summary judgment in favor of Louisiana merchants. Cates v.
Dillard Dep’t Stores, Inc., 624 F.3d 695, 697 (5th Cir. 2010); see Duncan v. Wal-
Mart La., L.L.C. --- F.3d ----, 2017 WL 2991234, at *2–3 (5th Cir. July 14, 2017).
       The district court properly held that Derousselle failed to meet her
burden of providing evidence sufficient to support a factual finding in her favor
on the second element of § 9:2800.6(B). There is no evidence in the record
demonstrating how the grape got on the floor of the Wal-Mart. Derousselle
maintains that, since no one had seen the grape and it is unclear whether Wal-
Mart employees inspected the floor in the time leading up the accident, Wal-



       1 The leading cases by the Louisiana Supreme Court interpret a prior version of
§ 9:2800.6 that was subsequently amended in 1996. See Babin v. Winn-Dixie La., Inc., 764
So. 2d 37, 38 (La. 2000) (considering an incident that occurred on February 16, 1996),
Kennedy v. Wal-Mart Stores, Inc., 733 So. 2d 1188, 1189 (La. 1999) (considering an incident
that occurred on September 15, 1994), White, 699 So. 2d at 1082 (considering an incident that
occurred on June 3, 1994); compare La. Stat. §9:2800.6 (1996), with La. Stat. §9:2800.6 (2015).
However, the Louisiana Supreme Court appears to have accepted that this interpretation
holds true for the modern version of § 9:2800.6, and we see no change that would indicate
otherwise. See Hines v. Garrett, 876 So. 2d 764, 768 n.2 (La. 2004) (per curiam) (explaining
the holding of Babin and disagreeing only with the reasoning of the lower court), rev’g 865
So. 2d 296 (La. Ct. App. 2004) (considering an incident that occurred on October 1, 2000).
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                                        No. 17-30151
Mart had constructive notice of the hazardous grape.                           We disagree.
Derousselle, as the claimant, has the burden to bring forth facts demonstrating
the existence of the grape on the floor for some period of time. White, 699 So.
2d at 1085. We have also clarified that:
              In the absence of competent evidence of how long the
              grapes had been on the floor, whether [the merchant]
              conducted sufficient inspections or used reasonable
              care in maintaining the store is simply not relevant to
              the issue of constructive notice, i.e., whether the
              hazardous condition had existed long enough that it
              would have been discovered if [the merchant] had
              exercised reasonable care.
Martin v. Kroger Co., 273 F.3d 1099, 2001 WL 1070538, at *3 (5th Cir. 2001)
(per curiam) (emphasis added) (unpublished). 2 Derousselle, therefore, has
provided no evidence that Wal-Mart caused the grape to be on the floor or had
actual or constructive notice of the grape.
       Derousselle also argues that there is a genuine dispute of material fact
over “whether a grape remained on the floor.”                              But Derousselle
mischaracterizes a lack of evidence as a genuine dispute. All of the witnesses
agree that Derousselle slipped and fell because of a grape. No witness, however
could say how the grape got to the cold-cut department or how long the grape
was on the floor. This is not a dispute of fact: rather, the absence of evidence
prevents Derousselle from demonstrating that Wal-Mart had notice of the
grape. Because there are no disputes of material fact, Derousselle’s failure to
provide evidence of Wal-Mart’s notice of the grape makes summary judgment
proper.
       AFFIRMED.


       2 Although Martin is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
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