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

                                                 FILED
                                                                         December 14, 2009

                                     No. 09-30474                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



NORA L. CHATMAN

                                                   Plaintiff-Appellant
v.

HOME DEPOT USA, INC.; JIMMY JOHNSON; HOME DEPOT, INC.

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:08-CV-832


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Nora L. Chatman appeals the district court’s grant of
the Motion for Summary Judgment filed by Home Depot USA, Inc. and Jimmy
Johnson (“Defendants-Appellees”) dismissing Chatman’s personal injury claims
arising from a trip-and-fall accident in Home Depot’s store in Lake Charles,
Louisiana. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 09-30474



                        I. FACTS AND PROCEEDINGS
      On the day of the accident, Chatman was in the “plant area” of Home
Depot’s store shopping for a palm tree. After designating the plant she wanted
to purchase, Chatman waited and watched as employees of the store dragged the
large plant out of the display area.          Chatman requested that one of the
employees bring a cart suitable for moving the plant to Chatman’s vehicle, and
the employee proceeded to do so. That employee returned with a “bright orange
flat cart” measuring approximately three or four by four or five feet and standing
some two and a half feet tall, then left the cart in the public area behind the spot
where Chatman was standing. The cart was in an open, visible area of the store
and remained there for some time before Chatman — without turning or looking
to observe what might lay behind her — took steps backwards and tripped and
fell over the cart, incurring injuries.
      Chatman sued Defendants-Appellees in state court in Calcasieu Parish,
Louisiana; Defendants-Appellees removed the action to the district court;
Chatman’s Motion To Remand was denied; and Defendants-Appellees filed the
aforesaid Motion For Summary Judgment seeking dismissal on the basis of
Louisiana tort law, which motion was granted by the district court.
                                  II. ANALYSIS
      Although Chatman asserts that there are disputed issues of material facts
controlling the outcome of this case and thus eschewing summary judgment, the
district court granted judgment based on the facts asserted by Chatman and
those that are not in dispute. The court analyzed the operable facts under
Louisiana’s law of premises liability pursuant to Louisiana Civil Code Article
2317.1 which states in pertinent part:
      The owner or custodian of a thing is answerable for damage
      occasioned by its ruin, vice, or defect, only upon a showing that he


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      knew or, in the exercise of reasonable care, should have known of
      the ruin, vice, or defect which caused the damage, that the damage
      could have been prevented by the exercise of reasonable care, and
      that he failed to exercise such reasonable care.

The court relied primarily on the pronouncement in Riolo v. National Tea Co.,
726 So.2d 515 (La.App. 5 th Cir 1999), to the effect that “[W]hen the accident is
allegedly the result of a specific act on the part of the merchant and not solely
the result of a condition found on the premises, the principles of negligence are
applicable.” (Citing Crooks v. Nat’l Union Fire Ins. Co., 620 So.2d 421 (La.App.
3d Cir. 1993), writ denied, 629 So.2d 391 (La.1993)). Although Chatman insists
that Article 2317.1 of the Louisiana Civil Code is not the proper theory for
deciding her case, and that the court should have applied Louisiana’s merchants’
liability statute, La.Rev.Stat.Ann. §9:2800.6, we perceive no legal error in the
court’s application of the Civil Code’s theory of premises liability. Moreover,
when we analyze the applicable facts for purposes of summary judgment, we
agree with the district court that, under pertinent provisions of Louisiana law
and the jurisprudence of that state construing such law, the bright orange flat
cart of uncontested dimensions, including its height of some two and a half feet,
located in the public shopping area of the Home Depot store where Chatman had
been standing and shopping and looking around for a significant period of time,
constituted an open and obvious condition that, with a modicum of care and
attention on Chatman’s part, could have — and should have — been observed
and avoided.
      For essentially the same reasons set forth by the district court in its
Memorandum Ruling of May 28, 2009, we hold that Defendants-Appellees are
entitled to summary judgment dismissing Chatman’s action.


AFFIRMED.



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