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

                                                                            FILED
                                                                           April 11, 2008

                                     No. 07-30684                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


CLARA S TONEY; THOMAS E TONEY

                                                  Plaintiffs-Appellants
v.

UNITED STATES OF AMERICA,
on behalf of United States Department of Army

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:04-CV-638


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants Clara S. Toney and Thomas E. Toney appeal the
district court’s grant of summary judgment against them in this Federal Tort
Claims Act (FTCA) suit. We VACATE and REMAND.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30684

                                        I.
      This suit arises from events that occurred on June 19, 2000, at Fort Polk,
a United States Military Post.
      Clara Toney testified that as she walked through the government’s Burger
King establishment, which was busy at the time, she passed a trash can that had
trays on top of it. A Burger King employee, later identified as Shandreika
Shaw-Thomas (Shaw), was cleaning around the trash can. According to Ms.
Toney, as she neared Ms. Shaw, seven or eight food trays fell in her path, and
she stepped on the trays and fell to the floor, sustaining injuries.
      Ms. Toney believes and testified to the effect that the trays fell “by
accident” and were not “purposefully” dropped by Ms. Shaw. Ms. Toney did not
see Ms. Shaw handling the trays or doing anything to cause the trays to fall.
But Ms. Toney nevertheless asserts that Ms. Shaw must have picked up the
trays and caused them to fall, as no one else was in the area at the time of the
accident. Ms. Toney also testified that her purse did not catch on anything or
bump anything and that no carts were present when she fell.
      Ms. Shaw testified that she was not handling the trays at the time of the
accident but was working with a cart and that the trays were on top of the cart.
According to Ms. Shaw, and contrary to Ms. Toney’s testimony, the trays were
on the cart at the time of the accident and the bottom corner of Ms. Toney’s
purse hit the trays and knocked them to the floor.
      On March 29, 2005, the district court granted summary judgment against
the Toneys. This court vacated and remanded the district court’s grant of
summary judgment, holding that the district court should have applied an
ordinary negligence standard rather than the Louisiana Merchant Liability Act,
LA. REV. STAT. § 9:2800.6. Toney v. U.S. Dept. of Army, 207 F. App’x 465 (5th
Cir. 2006).



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      On June 27, 2007, the district court again granted summary judgment
against the Toneys, finding that even under an ordinary negligence standard the
Toneys had failed to present any evidence of a breach of a duty of care.
Moreover, the district court found that the doctrine of res ipsa loquitur does not
apply in this case. The Toneys now appeal.
                                         II.
      Summary judgment is appropriate when, viewing the evidence in the light
most favorable to the non-moving party, no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); see also FED. R. CIV. P. 56(c). If the
burden at trial rests on the non-movant, the movant must merely demonstrate
an absence of evidentiary support in the record for the non-movant's case. Miss.
River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The
non-movant may not rely on mere allegations in the pleadings; instead, the
non-movant must respond to the motion for summary judgment by setting forth
particular facts indicating that there is a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). If no reasonable juror could
find for the non-movant, summary judgment will be granted. Miss. River Basin,
230 F.3d at 174. We review the district court's grant of summary judgment de
novo, employing the same standards as did the district court. In re Placid Oil
Co., 932 F.2d 394, 396 (5th Cir.1991).
                                         III.
      “The FTCA authorizes civil actions for damages against the United States
for personal injury or death caused by the negligence of a government employee
under circumstances in which a private person would be liable under the law of
the state in which the negligent act or omission occurred.” Quijano v. United
States, 325 F.3d 564, 567 (5th Cir. 2003) (citing 28 U.S.C. §§ 1346(b)(1); 2674).
In this case, Louisiana law controls because the incident occurred there.

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      The test for determining liability for negligent conduct has five elements:
(1) that the defendant's conduct was a cause-in-fact of the plaintiff's injuries (the
cause-in-fact element); (2) that the defendant had a duty to conform his conduct
to a specific standard (the duty element); (3) that the defendant's conduct failed
to conform to the appropriate standard (the breach element); (4) that the
defendant's conduct was a legal cause of the plaintiff's injuries (the scope of
liability or scope of protection element); and (5) that the plaintiff suffered actual
damages (the damages element). See, e.g., Goins v. Wal-Mart Stores, Inc., 800
So.2d 783, 788 (La. 2001) (citing Perkins v. Entergy Corp., 782 So.2d 606, 611
(La. 2001)).
      The district court found that the Toneys had failed to present any evidence
of a breach of a duty of care and were therefore unable to raise a genuine issue
of material fact as to the breach element of their claim.
      It is true that the Toneys have not offered any direct evidence that the
defendant breached its duty of care. The Toneys only assert, as noted above,
that Ms. Shaw must have caused the trays to fall, as no one else was in the area
at the time of the accident. The Toneys, then, rely entirely on the principle of res
ipsa loquitur to establish the breach element of their claim. We will thus turn
to consider whether the principle of res ipsa loquitur applies here. See Brown
v. Olin Chem. Corp., 231 F.3d 197, 200-01 (5th Cir. 2000) (deciding, on motion
for summary judgment, whether res ipsa loquitur applied); but see Smith v.
Xerox Corp., 866 F.2d 135, 140 (5th Cir. 1989) (noting that “it is true that the
applicability of the res ipsa loquitur doctrine must generally be determined after
evidence has been heard at trial”).
      Under res ipsa loquitur, a defendant’s negligence may be proved “by
circumstantial evidence alone when that evidence establishes, more probably
than not, that the injury was of a kind which ordinarily does not occur in the
absence of negligence, that the conduct of the plaintiff or of a third person was

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sufficiently eliminated by the evidence as a more probable cause of the injury,
and that the indicated negligence was within the scope of the defendant's duty
to the plaintiff.” Brown, 231 F.3d at 200-01 (citing Cangelosi v. Our Lady of the
Lake Reg’l Med. Ctr., 564 So.2d 654, 660 (La. 1990)); see also Linnear v.
Centerpoint Energy Entex/Reliant Energy, 966 So.2d 36, 41-42 (La. 2007). The
principle is employed “when the cause of the harm is obvious . . . .” Brown, 231
F.3d at 201.
      Here, viewing the evidence in the light most favorable to the Toneys, we
think they have shown that the injury suffered by Ms. Toney is of the type that
ordinarily does not occur in the absence of negligence. See Johnson v. United
States, 333 U.S. 46, 48 (1948) (applying res ipsa loquitur in a case involving a
plaintiff who was hit on the head by a block that fell from the control of his
coworker). Further, Ms. Toney alleges only she and Ms. Shaw were in the area
of the trays, that she did nothing to cause the trays to fall, and that some act of
Ms. Shaw must have. For the purposes of summary judgment, this testimony
sufficiently eliminates the conduct of the plaintiff or of a third person as a more
probable cause of the injury. Finally, the indicated negligence is clearly within
the scope of the defendant's duty to the plaintiff.
      Because the principle of res ipsa loquitur applies here, the Toneys are able
to raise a genuine issue of material fact as to the breach element of their claim,
and summary judgment is therefore precluded.
                                       IV.
      For the assigned reasons, we VACATE the grant of summary judgment
and REMAND this case to the district court for further proceedings.




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