                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 12, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-31057
                         Summary Calendar


                           IRENE FRAISE

                       Plaintiff-Appellant,

                              versus

                      WAL-MART LOUISIANA LLC,

                        Defendant-Appellee.

                       --------------------
          Appeal From the United States District Court
              for the Eastern District of Louisiana
                           2:05-CV-4178
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     The plaintiff, Irene Fraise, sued the defendant for injuries

she incurred from slipping on vegetable matter in a Wal-Mart store

in Harvey, Louisiana. The plaintiff appeals the dismissal of her

claims below on summary judgment.

     We review a grant of summary judgment de novo, applying the

same legal standards as the district court. Chacko v. Sabre, Inc.,

473 F.3d 604, 609 (5th Cir. 2006). Summary judgment is proper when

the evidence demonstrates that “there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

     *
       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this opinion should not be published and is not precedent except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.
                                No. 06-31057
                                     -2-

a matter of law.” FED. R. CIV. P. 56(c). While the moving party

bears the burden of establishing that there are no genuine issues

of material fact, it may satisfy this burden by showing that “that

there is an absence of evidence to support the nonmoving party's

case” as to an issue where the nonmoving party bears the burden of

proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

     The plaintiff admits that she must show that Wal-Mart “either

created or had actual or constructive notice of the condition which

cause the damage, prior the occurrence....” LA. REV. STAT. ANN. §

9:2800.6(B). The plaintiff relies on appeal on the claim that Wal-

Mart “created” the condition that led to the fall, namely the

presence of vegetable matter on the floor. Plaintiff argues that

the affidavit of Carlos Fraise, a former employee of the Harvey

Wal-Mart, establishes that the only potential cause of vegetable

matter on the floor of the store’s meat department was a Wal-Mart

employee moving trash through that section of the store.

     The evidence produced by the plaintiff was not sufficient to

survive   summary   judgment.    Contrary   to   the   assertions   of   the

plaintiff on appeal, Mr. Fraise’s affidavit does not claim that the

only potential source of the vegetable matter was a Wal-Mart

employee. Rather, he alleges that during his tenure as an employee,

several years prior to the accident, he never saw a customer drop

vegetable matter from their shopping cart. He speculates that the

most likely cause would be that the vegetable matter was dropped by

a Wal-Mart employee transporting trash. However, speculation alone
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                                -3-

“falls far short of the factual support required to establish that

plaintiff will be able to satisfy his evidentiary burden of proof

at trial.” Babin v. Winn-Dixie Louisiana, Inc., 764 So.2d 37, 40

(La. 2000). Moreover, the plaintiff has not appealed or contested

the district court’s ruling that Mr. Fraise’s lay opinion as to the

source of the vegetable matter would not be admissible at trial

under Federal Rule of Evidence 701. Because the plaintiff produced

no evidence that Wal-Mart created the condition causing the fall,

we AFFIRM the decision of the district court.
