     Case: 11-30946        Document: 00511947601             Page: 1      Date Filed: 08/07/2012




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

                                                                                      FILED
                                                                                    August 7, 2012

                                            No. 11-30946                             Lyle W. Cayce
                                                                                          Clerk

JEAN GRAY; ROBERT GRAY,

                                                         Plaintiffs - Appellants,
v.

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

                                                         Defendant - Appellee.



                 Appeal from the United States District Court for the
                            Western District of Louisiana
                                   1:09-CV-1523


Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
        IT IS ORDERED that the petition for panel rehearing is GRANTED and
the opinion previously filed in this case is WITHDRAWN. The following opinion
is substituted therefore:
        Plaintiffs-Appellants Jean and Robert Gray appeal the district court’s
grant of summary judgment in favor of Defendant-Appellee Wal-Mart Louisiana,
L.L.C. (“Wal-Mart”). 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 R. 47.5, the court has determined that this opinion should not be published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. 11-30946



                                         I.
      On September 1, 2008, Jean Gray (“Gray”) went to a Wal-Mart in
Pineville, Louisiana. Severe storms caused by Hurricane Gustav blanketed the
Gulf region that day. After shopping for about an hour, she slipped in a puddle
of clear liquid while pushing her cart down an aisle. Gray alleges that when she
slipped, her right foot slid backwards and caused her right knee to hit the
ground. Shortly after Gray’s injury, Wesley Aguillard, a Wal-Mart supervisor,
filled out an internal incident report that identified a hole in Wal-Mart’s roof as
the “source” of the puddle. Later, when he was deposed, Aguillard testified that
the incident report was based not on direct knowledge but instead on an
“assumption,” which in turn was based on Aguillard’s knowledge of other leaks
in Wal-Mart’s roof and the heavy rain outside.
      On July 21, 2009, Gray and her husband filed suit against Wal-Mart in
Louisiana state court seeking to recover damages for injuries caused by the fall.
They asserted state law negligence claims, alleging that Gray slipped in a puddle
of rainwater that leaked from a hole in the store’s roof. Wal-Mart removed the
case to federal court based on diversity jurisdiction and filed a motion for
summary judgment. The district court granted Wal-Mart’s motion for summary
judgment on September 29, 2011, on the ground that Appellants had failed to
create an issue of fact as to whether they had satisfied the standard set forth in
La. Rev. Stat. Ann. § 9:2800.6(B)(2) (2012).
                                         II.
      We review the grant of summary judgment de novo, applying the same
standard used by the district court. Hill v. Carroll Cnty., Miss., 587 F.3d 230,
233 (5th Cir. 2009). Summary judgment is appropriate when “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). “A fact is ‘material’ if its resolution in

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                                            No. 11-30946

favor of one party might affect the outcome of the lawsuit under governing law.”
Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quoting
Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)). “An issue
is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict
for the nonmoving party.” Id. (quoting Hamilton, 232 F.3d at 477). When
reviewing motions for summary judgment, we “construe all facts and inferences
in the light most favorable to the non-moving party . . . .” Hernandez v. Yellow
Transp., 670 F.3d 644, 650 (5th Cir. 2012).
                                                  III.
       Appellants’ claims are governed by La. Rev. Stat. Ann. § 9:2800.6(B).
Subsection (2) of § 9:2800.6(B) requires that plaintiffs asserting slip-and-fall
claims against a merchant prove that “[t]he merchant either created or had
actual or constructive notice of the condition which caused the damage, prior to
the occurrence.” See Kennedy v. Wal-Mart Stores, Inc., 733 So.2d 1188, 1190 (La.
2004) (“In a slip and fall case, the plaintiff’s burden of proof is set forth in . . . [§]
9:2800.6.”).1 The district court granted summary judgment solely on the basis
that Appellants could not satisfy the standard set forth in La. Rev. Stat. Ann.
§ 9:2800.6(B), as Appellants were unable to show that Wal-Mart created the
puddle or had either actual or constructive notice of the puddle before Gray fell.
       Appellants argue that summary judgment is improper because they have
raised a fact issue as to whether Wal-Mart “created the hazard because its own
roof leaked or it had actual knowledge of the hazard because it knew its roof
leaked.”2 To support their argument, Appellants point to the incident report
asserting that the “source” of the puddle that injured Gray was a hole in Wal-
Mart’s roof.

       1
         Kennedy requires us to reject Appellants’ argument that Article 2317.1 of the Louisiana Civil
Code governs this case.
       2
           On appeal, Appellants do not argue that Wal-Mart had constructive notice of the puddle.

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                                   No. 11-30946

      The incident report does not establish an issue of fact regarding either the
“actual notice” prong or the “created” prong of § 9:2800.6 (B)(2). With respect to
the “actual notice” prong, neither the report nor any other evidence presented
by Appellants shows that Wal-Mart had actual knowledge of the leak before
Gray’s accident occurred. With respect to the “created” prong, Appellants cite
no cases in which comparable evidence, by itself, established that a merchant
had “created” a condition that injured a plaintiff. Instead, for plaintiffs suing a
merchant under § 9:2800.6 (B)(2), courts have required proof that an employee’s
action caused the plaintiffs’ injury. See Ross v. Schwegmann Giant Super
Markets, 734 So. 2d 910, 913 (La. App. 1999) (“[T]he wording of [La. Rev. Stat.
9:2800.6 (B)(2)] . . . means there must be proof that the merchant is directly
responsible for the spill or other hazardous condition. In this case, there is no
evidence that would establish that the crab salad found its way onto the floor
because of an act by a Schwegmann employee.”); Savoie v. Sw. Lous. Hosp. Ass’n,
866 So.2d 1078, 1081 (La. App. 2004) (merchant “created” hazard where plaintiff
had slipped on wax-like substance on floor, and merchant was responsible for
cleaning floor). Here, then, in order to show that Wal-Mart “create[d]” the
condition that caused Gray’s injury, Appellants must create an issue of fact
regarding whether a Wal-Mart employee was responsible for causing the leak
that injured Gray. But Appellants pointed neither the district court nor this
court to any evidence showing that Wal-Mart’s employees were responsible for
the holes in Wal-Mart’s roof, nor any evidence showing that Wal-Mart was
responsible for maintaining its own roof. In the absence of evidence connecting
Wal-Mart employees to the roof leak, no issue of fact exists regarding whether
Wal-Mart “created” the roof leak that injured Gray. See Ross, 734 So. 2d at 913.
      Appellants have therefore failed to make the showing required under §
9:2800.6(B). Accordingly, even after we take all evidence in the light most
favorable to Appellants, Wal-Mart is entitled to summary judgment as a matter

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                                No. 11-30946

of law.
                                    IV.
      We AFFIRM the district court’s judgment.




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