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

                                                 FILED
                                                                        September 10, 2009

                                     No. 09-30095                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



WANDA LEGER,

                                                   Plaintiff - Appellant,
v.

WAL-MART LOUISIANA LLC; AMERICAN HOME ASSURANCE CO.,

                                                   Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:08-CV-120


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Wanda Leger appeals the district court’s grant of
summary judgment in favor of Defendants-Appellees Wal-Mart Louisiana LLC
and American Home Assurance Co. (collectively “Wal-Mart”). Reviewing the
grant of summary judgment de novo and applying the same standard as the
district court under Fed. R. Civ. P. 56, Klamath Strategic Investment Fund ex rel.
St. Croix Ventures v. United States, 568 F.3d 537, 543 (5th Cir. 2009), we affirm.
       At approximately 12:45 p.m. on February 19, 2007, Leger slipped and fell

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30095

in the handicap stall of a restroom in a Wal-Mart store in Opelousas, Louisiana.
She passed out in the fall and received assistance from Tina Dunbar, who was
in the restroom at the time of the accident. Leger’s sister, Joy Duhon, also
entered the stall after the accident. Leger brought this suit for the injuries she
allegedly sustained in the accident, claiming she slipped and fell on liquid
leaking from the toilet. She presented testimony from herself, Dunbar, and
Duhon that after the fall water and tissue were on the floor around the toilet.
Leger also presented evidence that the restroom had last been inspected by a
Wal-Mart employee at 11:05 a.m., approximately one hour and 40 minutes prior
to the accident. She did not present evidence of any kind as to how long the
water existed prior to her fall. Wal-Mart moved for summary judgment on the
basis that it lacked actual or constructive notice of the alleged hazard, and the
district court granted the motion.
      As the district court noted, the controlling law is La. R.S. § 9:2800.6, which
requires a plaintiff asserting a slip-and-fall claim against a merchant to prove
that “[t]he merchant either created or had actual or constructive notice of the
condition which caused the damage, prior to the occurrence.” § 2800.6(B)(2).
“Constructive notice,” as defined by the statute, “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. . . .” § 2800.6(C)(1).
      The statute does not allow for the inference of constructive notice
      absent some showing of this temporal element. The claimant must
      make a positive showing of the existence of the condition prior to the
      fall. A defendant merchant does not have to make a positive
      showing of the absence of the existence of the condition prior to the
      fall. . . .

      Though there is no bright line time period, a claimant must show
      that “the condition existed for such a period of time . . .” Whether
      the period of time is sufficiently lengthy that a merchant should
      have discovered the condition is necessarily a fact question;


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      however, there remains the prerequisite showing of some time
      period. A claimant who simply shows that the condition existed
      without an additional showing that the condition existed for some
      time before the fall has not carried the burden of proving
      constructive notice as mandated by the statute. Though the time
      period need not be specific in minutes or hours, constructive notice
      requires that the claimant prove the condition existed for some time
      period prior to the fall. This is not an impossible burden.
White v. Wal-Mart Stores, Inc., 699 So. 2d 1081, 1084–85 (La. 1997) (footnote
omitted).
      In White, as in this case, the plaintiff presented evidence that a puddle
existed at the time of the fall but presented no evidence as to how long the
puddle had been on the floor. Id. at 1086. The Louisiana Supreme Court found
the evidence insufficient as a matter of law under § 2800.6 and entered judgment
for the defendant. Id. It was not enough to speculate that a Wal-Mart employee
could have noticed the dangerous condition in a safety sweep: “To find
constructive notice based upon such without any positive showing of how long
the spill was in existence . . . was error.” Id.
      Likewise, Leger has presented ample evidence that water was on the floor
of the handicap stall at the time of her slip-and-fall (or at least immediately
afterward), but she has presented no evidence as to how long the water had been
there. A Wal-Mart employee inspected the stall less than two hours before the
accident and did not note any problem with the stall, nor was there any evidence
of the stall’s condition immediately before the accident. Leger’s conjecture about
past leaks and the source of the water on the floor cannot substitute for the
complete lack of evidence concerning how long the water had been on the floor
prior to the accident in question. Under White, Leger’s claim must fail.
      Accordingly, for these reasons and those set forth in the district court’s
January 22, 2009 order, the judgment is affirmed.
AFFIRMED.


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