               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                       ____________________

                           No. 01-31309

                         Summary Calendar
                       ____________________


     EMILY POLLET

                                    Plaintiff - Appellant

          v.

     SEARS ROEBUCK AND COMPANY

                                    Defendant - Appellee


_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
                          No. OO-CV-3654-T
_________________________________________________________________
                            July 18, 2002

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.

PER CURIAM:*

     Plaintiff-Appellant Emily Pollet appeals the district

court’s summary judgment in favor of Defendant-Appellee Sears

Roebuck and Company on Pollet’s state law negligence claim

arising from her slip and fall while entering a Sears-owned


     *
        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that this opinion should not be published and is not precedent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.
department store on a rainy day.       For the following reasons, we

AFFIRM.

               I.   FACTUAL AND PROCEDURAL HISTORY

     On November 20, 1999, Plaintiff-Appellant Emily Pollet

slipped and fell as she was entering a Sears Department Store

owned by Defendant-Appellee Sears Roebuck and Company (“Sears”).

It was raining that day.   On November 20, 2000, Pollet filed suit

against Sears in Louisiana state court.      Pollet alleged that

Sears’s negligence caused her injury because the defendant’s

store had knowledge of, and failed to correct, a hazardous

condition that caused Pollet’s fall.      Pollet alleged that the

hazard was created by a puddle of rainwater on the entrance floor

of the store combined with a floor mat caught under one of the

doors.

     On December 8, 2000, Sears removed the action to federal

district court, pursuant to 28 U.S.C. §§ 1332, 1441(a) (1994),2




     2
        Section 1441(a) authorizes removal, providing in
relevant part that “any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction, may be removed by the defendant ... to the district
court ....” 28 U.S.C. § 1441(a).
     Section 1332 delineates the amount in controversy
requirement, providing in relevant part that the “district courts
shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of [$75,000],
exclusive of interest and costs, and is between- (1) citizens of
different States ....” See 28 U.S.C.A. § 1332 (West 1993 & Supp.
2001).

                                   2
on the ground of diversity of citizenship.3   The petition for

removal included Sears’s assertion, in accordance with § 1332,

that, based on Pollet’s claimed injuries and damages, the amount

in controversy exceeds $75,000.    On June 5, 2001, Sears filed a

motion for summary judgment, arguing that Sears had no knowledge

of any hazardous condition causing Pollet’s fall.      Plaintiff

Pollet made no challenge to the district court’s jurisdiction to

decide the case at this time, or any time prior to appeal to this

court.    On October 1, 2001, the district court granted summary

judgment in favor of Sears, dismissing Pollet’s claims with

prejudice.4   Pollet timely appeals that summary judgment.

                           II.   DISCUSSION

     A.    The Amount in Controversy Exceeds $75,000

     For the first time on appeal, Pollet asserts that the

district court lacked jurisdiction to grant summary judgment

because the amount put in controversy by her suit fails to exceed

$75,000.    Pollet is correct that she may properly challenge

federal court jurisdiction at any time and that such right is not


     3
        Pollet is a citizen of Louisiana, and Sears is a citizen
of New York.
     4
        Pollet also originally named Sears’s insurer, Liberty
Mutual Insurance Company (“Liberty”), as a defendant to this
action. The district court noted in its October 1, 2001 order
granting summary judgment, however, that Pollet had not served
Liberty and that Liberty did not join Sears’s motion for summary
judgment. On October 4, 2001, when the district court entered
final judgment in favor of Sears, the court also dismissed
Pollet’s claims against Liberty, without prejudice.

                                   3
waived on appeal by the failure of a party to raise the issue

before a trial court.     See Simon v. Wal-Mart Stores, Inc., 193

F.3d 848, 850 (5th cir. 1999) (“[A] party may neither consent to

nor waive federal subject matter jurisdiction.”).        Thus,

“[f]ederal courts may examine the basis of jurisdiction sua

sponte even on appeal.”     Id.   She is also correct that for a

federal court to have removal jurisdiction, the amount in

controversy must exceed $75,000 pursuant to 28 U.S.C. § 1332.

     Pollet claims that a settlement demand made by her on March

15, 2001, including $2,301.78 in medical bills and $40,000 in

general damages, totaling $42,301.78, in addition to a settlement

demand for $49,801.78 submitted to the court on September 26,

2001, show that the amount in controversy does not exceed

$75,000.   Both of those demands were made on December 8, 2000,

and thus post-removal.    Sears is correct that in making our

determination as to the amount in controversy pursuant to § 1332,

the damages that we may consider include only those damages

claimed at the time of removal.         Id. at 850 & n.10 (citing Allen

v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)).

Thus, we find that any post-removal action taken by Pollet,

including either of her post-removal settlement demands, is

immaterial to our determination whether her claims exceed $75,000

for the purpose of establishing federal diversity jurisdiction.




                                    4
See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.

2000).5

     Louisiana law prohibits a plaintiff such as Pollet from

specifying damages in any numerical dollar amount in her


     5
          Several of our sister circuits have considered
settlement offers or demands relevant to the jurisdictional
determination of the amount in controversy. See Cohn, D.V.M. v.
Petsmart, Inc., 281 F.3d 837, 840 & n.3 (9th Cir. 2002) (internal
quotation and citations omitted) (finding that while a settlement
offer itself “may not be determinative” it may “count[] for
something” and may be considered relevant if it appears “to
reflect a reasonable estimate of the plaintiff’s claim.”). The
Eleventh Circuit, in Burns v. Windsor Ins. Co., 31 F.3d 1092,
1097 (11th Cir. 1994), for example, confronted a settlement offer
made after removal but that offer merely corroborated an exact
dollar amount specified in the complaint that was less than the
federal jurisdictional minimum. The Eleventh Circuit found the
damages specification in the complaint controlling. See id. We
find the reasoning of those courts of appeals in favor of
consideration of settlement offers or demands in a determination
as to the jurisdictional amount in controversy unpersuasive in
the instant, distinguishable circumstance.
     Moreover, as we have noted, a “plaintiff’s settlement offer
is ordinarily less than the damages the plaintiff expects to
receive if victorious at trial, because the offer is obviously
discounted by the risk of an outright loss at trial.” Kliebert
v. The Upjohn Co., 915 F.2d 142, 145 (5th Cir. 1990), vacated for
reh’g en banc, 923 F.2d 47 (5th Cir. 1991), appeal dism’d per
stipulation of settlement, 947 F.2d 736 (5th Cir. 1991) (because
the decision was vacated, it is no longer binding precedent but
nevertheless instructive on this point). Consequently, Pollet’s
settlement offers for approximately $42,000 and $50,000 do not
necessarily or even persuasively suggest that Pollet’s claims
amount to no more than $75,000 in controversy. We further note
that Pollet was free, but failed, to file a binding stipulation
to the court prior to removal indicating that she would seek no
more than $75,000 in damages. Such a stipulation timely filed
could have prevented removal. See, e.g., Chase v. Shop ‘N Save
Warehouse Foods, Inc., 110 F.3d 424, 430 (7th Cir. 1997)
(admonishing plaintiffs that want to prevent removal to file such
a binding stipulation with the court with their complaint because
“once a defendant has removed the case ... later filings [are]
irrelevant”) (internal quotations and citations omitted).

                                5
complaint.     See   LA. CODE CIV. PROC. ANN. art. 893(A) (West Supp.

2000).   This court has established a procedure by which we

evaluate the jurisdictional amount in controversy based on a

complaint like Pollet’s that does not specify damages in dollars.

See, e.g., Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298

(5th Cir. 1999).      “The defendant may make [its] showing in either

of two ways: (1) by demonstrating that it is facially apparent

that the claims are likely above $75,000, or (2) by setting forth

the facts in controversy ... that support a finding of the

requisite amount.”      Id. (internal quotation and citation omitted)

(emphasis in original).      The two tests are applied in order, and

only if the “facially apparent” test is not met, do we then

require “summary-judgment-type” evidence of the amount in

controversy.     Allen, 63 F.3d at 1336 & n.16.

     In cases such as this that are filed without specified

dollar damages, the defendant bears the burden of showing by a

preponderance of the evidence -- i.e., that it is more likely

than not -- that the amount in controversy exceeds $75,000.          Id.

at 1135.   We noted in De Aguilar v. Boeing Co., that a plaintiff

remains “master of [her] own claim” and thus that the defendant

must show that it is more than merely possible that a plaintiff

will recover in excess of the jurisdictional amount.       47 F.3d

1404, 1411-12 (5th Cir. 1995) (citations omitted).       However, we

also noted in De Aguilar that defendants must be protected from



                                    6
“plaintiffs who seek to manipulate their state pleadings to avoid

federal court while retaining the possibility of recovering

greater damages in state court following remand” and that this

court “‘adamantly’” seeks to prevent plaintiffs who manipulate

pleadings in such fashion “‘from being able to destroy the

jurisdictional choice that Congress intended to afford a

defendant in the removal statute.’”   Id. at 1411 (quoting Boelens

v. Redman Homes, Inc., 759 F.2d 504, 507 (5th Cir. 1985)).     We

thus cautioned against placing too onerous a burden on the

defendant when applying the preponderance of the evidence

standard to determine whether it is facially apparent from a

complaint that claimed damages exceed the federal jurisdictional

minimum for removal purposes.   See id. at 1411-12.   Pollet

asserts that Sears fails to satisfy its burden to produce

sufficient “summary-judgment-type evidence” to establish an

amount in controversy that exceeds the jurisdictional minimum.

However, because we find based on Pollet’s complaint that it is

facially apparent that the amount in controversy more likely than

not exceeded $75,000 at the time of removal, we need not inquire

into the sufficiency of any other summary-judgment-type evidence

brought forth by Sears.

     Pollet’s claims at the time of removal indicate an amount in

controversy that exceeds $75,000.   In her complaint originally

filed in Louisiana state court, Pollet claimed the following

injuries: “serious and painful injuries, including but not

                                7
limited to severe injuries to her face, left elbow, left hand,

and tail bone.”    Pollet further claimed that she

     suffered severe physical pain and keen mental anguish,
     humiliation and embarrassment; and has required medical
     care for her injuries and serious residuals thereof,
     she has been disabled in her daily activities and has
     been handicapped in other activities; she has incurred
     medical expenses and loss [sic] sums of moneys that
     otherwise she would have earned, and she continues to
     have a diminished earnings capacity; she has sustained
     residual and permanent disabilities and impairments;
     she may require hospitalization and she will require
     medical care in the future; these conditions may
     continue, worsen, or become permanent.


Pollet’s complaint also prays for the following damages:    “all

such damages which are reasonable ..., including damages for past

and future medical expenses, for past and future lost wages and

lost earnings capacity, for pain, suffering and mental anguish,

for disability and for the loss of life’s pleasures.”    In Gebbia,

we found, in the context of an analogous slip and fall personal

injury case filed against a store under Louisiana law, that a

complaint alleging injuries and damages in a manner similar to

Pollet’s complaint facially indicated that the amount in

controversy exceeded $75,000 for the purpose of federal removal

jurisdiction.     See 233 F.2d at 883-84 (denying remand of a slip

and fall personal injury case filed under Louisiana law and

removed to federal court).

     The plaintiff in Gebbia, like Pollet, was prohibited by

Louisiana law from specifying damages in dollar amounts in her

complaint.   The Gebbia plaintiff alleged personal injury under

                                   8
Louisiana law against a store due to an alleged slip and fall on

“liquid, dirt and produce” in the store.      233 F.3d at 881.   The

Gebbia plaintiff also alleged injuries analogous to those claimed

by Pollet, including injury to her “right wrist, left knee and

patella, and upper and lower back.”     Id.    The Gebbia plaintiff

further alleged damages analogous to those alleged by Pollet,

including damages for “medical expenses, physical pain and

suffering, mental anguish and suffering, loss of enjoyment of

life, loss of wages and earning capacity, and permanent

disability and disfigurement.”   Id.    The action in Gebbia was

removed to district court, and that court denied a motion to

remand, finding that the complaint at the time of removal alleged

injuries exceeding the $75,000 requirement.       Id. at 882.

      The Gebbia plaintiff subsequently made a stipulation “based

on medical evidence” that her claims “did not amount to $75,000.”

Id.   The district court denied the plaintiff’s motion for

reconsideration of its jurisdictional judgment, which motion was

made in light of that stipulation.     Id.    A federal jury

subsequently found in favor of the defendant.       Id.

      On appeal to this court, the Gebbia plaintiff claimed that

the district court erred in denying her motion to remand.        See

id.   In affirming the district court’s decision not to remand, we

noted that “once the district court’s jurisdiction is

established, subsequent events that reduce the amount in

controversy to less than $75,000 generally do not divest the

                                 9
court of diversity jurisdiction.”      Id. at 883 (citing St. Paul

Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289-90 (1938);

Allen, 63 F.3d at 1336).     We further held that it was “‘facially

apparent’” from the Gebbia plaintiff’s petition, which is

analogous to that of Pollet, “that the claimed damages exceeded

$75,000.”   Id. at 883-84.    We thus found that the district court

properly had diversity jurisdiction over the suit in Gebbia,

despite the post-removal stipulation of damages not exceeding

$75,000.    Id. at 883-84.

     In finding that federal jurisdiction existed in Gebbia, we

distinguished another of our decisions applying Louisiana law,

Simon v. Wal-Mart Stores, 193 F.3d at 851-52.     In Simon, we found

that a district court erred by not remanding to state court a

personal injury action brought against a store because we found

that the allegations made in the complaint did not indicate an

amount in controversy in excess of $75,000.      See id.   The

plaintiff’s complaint in that case alleged injuries including

“‘but not limited to a severely injured shoulder, soft-tissue

injuries throughout her body, bruises, abrasions and other

injuries to be shown more fully at trial, and has incurred or

will incur medical expenses.’”     Id. at 850.   The Simon plaintiff

also “sought ‘reasonable’ damages for loss of consortium.”       Id.

In rejecting federal jurisdiction in Simon, we reasoned that the

plaintiff in that case failed to allege any damages such as “for

loss of property, emergency transportation, hospital stays,

                                  10
specific types of medical treatment, emotional distress,

functional impairments, or disability, which damages, if alleged,

would have supported a substantially larger monetary basis for

federal jurisdiction.”   Id. at 851.     In light of that finding in

Simon, we therefore concluded in Gebbia that, based on the

contrast between the type of allegations of injury and damages

made by the Gebbia plaintiff versus the seemingly less severe

allegations made by the Simon plaintiff, the Gebbia plaintiff’s

allegations did “support a substantially larger monetary basis to

confer removal jurisdiction than the allegations reviewed in

Simon ....”   Gebbia, 233 F.3d at 883.

     We find that Pollet’s allegations of injury and damages in

her complaint, by their nature and severity, more closely

resemble the allegations made by the plaintiff in Gebbia than the

allegations made by the plaintiff in Simon.      And, as in Gebbia,

we disregard Pollet’s post-removal settlement demands in our

determination of the amount in controversy at the time of

removal.   Thus, we conclude that it is facially apparent from

Pollet’s allegations of injury and damages made in her complaint

that the amount in controversy at the time of removal more likely

than not exceeded $75,000.    We therefore find that the district

court had diversity jurisdiction over Pollet’s action pursuant to

28 U.S.C. §§ 1441(a) & 1332 when that court granted summary

judgment in favor of Sears.



                                 11
     B.   Pollet’s Failure to Show Sears had Constructive
          Knowledge of Any Hazard

     We review a district court’s summary judgment de novo,

applying the same standards as the district court.      Chaney v. New

Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir.

1999).    Summary judgment is appropriate when there is no genuine

issue of material fact, and the moving party is entitled to

judgment as a matter of law.   FED. R. CIV. P. 56(c).    We view the

evidence in the light most favorable to the non-movant.     Coleman

v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).

The non-movant must, however, go beyond the pleadings and point

to specific facts in dispute indicating a genuine issue for

trial.    See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

If the non-movant fails to present facts sufficient to support an

essential element of her claim, summary judgment is appropriate.

See id. at 322-23.

     Pollet argues that, even if the district court had

jurisdiction to decide summary judgment, the court nevertheless

erred by granting summary judgment in favor of Sears because the

court erred in finding that Pollet failed to establish as a

matter of law that Sears had constructive knowledge of a

hazardous condition that allegedly caused her fall.     Louisiana

has a merchant premises liability statute, LA. REV. STAT. ANN.

§ 9:2800.6 (West 1997), which governs injury claims such as

Pollet’s that are made against merchants.   For Pollet to succeed

                                 12
on such a claim, § 9:2800.6 requires that she prove all of the

following statutory elements:

      (1) The condition presented an unreasonable risk of
      harm to the claimant and that risk of harm was
      reasonably foreseeable. (2) The merchant either
      created or had actual or constructive notice of the
      condition which caused the damage, prior to the
      occurrence. (3) The merchant failed to exercise
      reasonable care. In determining reasonable care, the
      absence of a written or verbal uniform cleanup or
      safety procedure is insufficient, alone, to prove
      failure to exercise reasonable care.


LA. REV. STAT. ANN. § 9:2800.6(B) (emphasis added).

      In finding in favor of Sears, the district court found that

Pollet failed to point to material facts in dispute as to the

second statutory element: whether Sears had constructive notice

of the hazard that Pollet alleged was created by a puddle of

rainwater on the store entrance floor combined with a floor mat

caught in the door.6   In so doing, the district court relied on a

decision by the Louisiana Supreme Court, White v. Wal-mart

Stores, Inc., 97-0393 (La. 9/9/97), 699 So.2d 1081, 1082, 1084-

85.   In White, the Louisiana Supreme Court clarified that, in

order for a plaintiff to satisfy the constructive notice element

of her claim required by § 9:2800.6, she must establish a

temporal component to constructive notice by making some showing

that the hazard at issue existed for some length of time such



      6
        Pollet does not allege that Sears had actual notice of
any hazard.

                                13
that Sears should have become aware of the hazard by exercising

due care.   See id.

      In White, the Louisiana Supreme Court reversed a judgment in

favor of an injured plaintiff who claimed, subject to § 9:2800.6,

that a merchant had constructive notice of a “clear liquid”

spilled on an aisle floor in the store in which the plaintiff

slipped and fell.     Id.   The White court based its ruling on its

finding that the plaintiff “produced no evidence as to how long

the spill had been on the floor.”       Id.   In so doing, the White

court explained,

      [t]here is no bright line time period .... Whether the
      period of time is sufficiently lengthy that a merchant
      should have discovered the condition is necessarily a
      fact question; 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 exited for some time period prior
      to the fall. This is not an impossible burden.


Id.   Pollet argues that the district court incorrectly applied

White to her claim because that case does not address the same

circumstance presented by her claim involving a hazard resulting

from rainy weather.    Since White, however, in a case involving

rainy weather that is analogous to the instant case, the

Louisiana Supreme Court confirmed that the requirement it

outlined in White -- that an injured plaintiff must make a


                                   14
showing as to the temporal component of the constructive notice

element to satisfy § 9:2800.6 -- is to be applied equally to

plaintiffs’ claims against merchants that allege hazards

resulting from rainy weather.     See Kennedy v. Wal-Mart Stores,

Inc., 98-1939 (La. 4/13/99), 733 So.2d 1188, 1189-91.

     In Kennedy, a plaintiff shopping at a Wal-Mart store slipped

in what appeared to be a puddle of water near the cash registers

at the front of the store.     Id. at 1189.   At a bench trial, the

plaintiff testified that it was raining the evening that he

slipped and that, although the plaintiff did not see any puddle

on the floor prior to falling, his pants were wet after he rose

from the floor.   See id.    The Kennedy plaintiff further testified

that the area where he fell was within view of a customer service

podium so that the plaintiff thought one of the Wal-Mart

employees should have been able to see any puddle before the

plaintiff fell.   See id.    The store’s defense witness testified

as to routine store inspection procedures, including routine

sweeping, mopping, random spot checks, and once-hourly “‘zone

defense’” checks by all store employees.      Id.   A Louisiana

intermediate appellate court affirmed a trial court judgment in

favor of the plaintiff.

     The Louisiana Supreme Court reversed.     In so doing, that

court found that the Kennedy plaintiff’s evidence indicated

merely that the area where he fell was within view of a customer

service area and that it was raining the evening the plaintiff

                                  15
fell.     See id. at 1191.   The court further found that the

“plaintiff presented absolutely no evidence as to the length of

time the puddle was on the floor before his accident.”      Id.    The

Louisiana Supreme Court thus concluded that, under White, the

“plaintiff did not carry his burden of proving Wal-Mart’s

constructive knowledge of the condition,” as required by

§ 9:2800.6.     Id. (discussing White, 699 So.2d at 1084-85).     The

Kennedy court then rendered judgment in favor of the defendant

store.7

     7
        In support of her argument, Pollet points to three
decisions by Louisiana intermediate appellate courts involving
slip and fall injury claims subject to § 9:2800.6 and that
alleged hazards resulting from rainy weather, particularly
Oalmann v. K-Mart Corp., 630 So.2d 911, 913 (La. Ct. App. 1994).
See also Hartford v. Wal-Mart Stores, Inc., 99-0753 (La. App. 1
Cir. 5/16/00), 765 So.2d 1081, 1084-87 (citing White to affirm a
verdict in favor of an injured plaintiff who claimed a merchant
had constructive notice of a rain puddle based on similar
evidence as that in Oalmann); Barton v. Wal-Mart Stores, Inc.,
97-801 (La. App. 3 Cir. 12/10/97), 704 So.2d 361, 363, 367
(same). In Oalmann, a case that indeed appears analogous to
Pollet’s, a Louisiana intermediate appellate court affirmed
judgment in favor of an injured plaintiff who slipped and fell
and claimed that a merchant had constructive notice of a puddle
of rain water on the store entrance floor. Id. That court found
that the trial court judgment was supported by evidence that the
store “did have knowledge of the weather conditions on the day of
the accident.” Id. The appellate court further found that,
despite that the “evidence does not clearly establish precisely
how long the floor was wet prior to [the] fall,” given “the
volume of business conducted at [such] a large” retailer, it was
“foreseeable that the floor near the entrance would become wet,
and thus slippery, in a relatively short period of time.” Id.
The Oalmann court concluded that “[i]t is the opinion of the
Court that the accumulation of water at the entrance existed for
such a time that [the store] should have discovered the danger.”
Id.
     As another Louisiana intermediate appellate court pointed
out in Barton, 704 So.2d at 364, the Louisiana Supreme Court in

                                   16
     A review of the facts in the instant record indicates that

under Kennedy, and in accordance with White, the district court

correctly determined that Pollet fails to point to sufficient

facts in dispute that, if proven true at trial, could satisfy her

burden of establishing the constructive notice element of her

claim, as required by § 9:2800.6.    Pollet testified in her

deposition to the following events.    At the time she entered

Sears, it was raining.   Prior to her fall, Pollet did not see any

puddle in the store entrance or notice that a mat was caught

under the door.   Only upon rising from the floor did Pollet feel

that her pants were wet and observe some “clear liquid” on the

floor with a dark streak through it from where her own shoe had

skidded.   Pollet did not observe any other customers slipping in



White expressly referred to Oalmann as an “example[] where the
claimant did carry the burden of showing actual or constructive
notice.” See White, 699 So.2d at 1085 & n.4 (emphasis added).
In White, therefore, the Louisiana Supreme Court appeared to
endorse Oalmann and to suggest that any case analogous to Oalmann
-– thus arguably including Pollet’s case -- would satisfy the
burden of adducing sufficient evidence of the temporal component
of constructive notice required by § 9:2800.6. In deciding
Kennedy, the Louisiana Supreme Court did not address its earlier
citation to Oalmann in footnote four of White, which endorsement
arguably contradicts the later holding in Kennedy.
     Regardless, when a state’s highest appellate court has
weighed in on an issue, we are bound by that court’s holding in
determining state law, and we look to intermediate appellate
court decisions only in the absence of such a higher court
decision. See Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627
(5th Cir. 2000) (citation omitted). Because Kennedy appears
squarely on point with Pollet’s case, we heed the Louisiana
Supreme Court’s counsel in that decision in favor of a finding
that Pollet fails to present sufficient evidence in dispute that
Sears had constructive notice of any hazard.

                                17
the store entrance.   Pollet admitted that she did not report the

accident until approximately fifteen to twenty minutes after it

occurred, at which time Sears investigated.    In response to being

asked whether she thought that Sears knew about the puddle or the

mat caught in the door prior to her fall, Pollet responded, “I

don’t guess they knew.   I don’t know.   I mean, you know, it only

happened when I walked in the door.”

     E.J. Bizette, an asset protection manager at Sears at the

time of Pollet’s fall submitted an affidavit stating that Sears

had no knowledge that any water or other type of hazard existed

at the door Pollet entered at the time she fell.    Bizette

additionally testified in a deposition that Sears’s policy

mandates that safety warning cones be put out during inclement

weather when it begins to rain and that Sears associates must all

be on constant watch for hazardous puddles and the like during

such weather.   Bizette also testified that despite such policy,

he could not recall for a fact that warning cones were put out

the night of Pollet’s accident or how long it had been since any

associates had inspected the area and found it free of puddles or

a mat caught under the door.   David Levia, the Sears asset

protection agent who investigated the scene of Pollet’s accident

after she reported the incident, testified that he saw no puddle

on the floor and no mat out of place.    Levia further testified

that he saw no warning cones or signs by the door that night.



                                18
     The evidence in the record suggests dispute over whether

Sears followed its general procedures regarding hazards posed by

inclement weather at the time Pollet fell.   Evidence conflicts as

to whether warning cones or signs were placed by entrance doors

after the store determined it was raining, and evidence is

unclear as to whether any actual inspections were undertaken to

spot possible puddles due to the rain.   However, the resolution

of that dispute at trial -- even if in Pollet’s favor -- may be

relevant to the issue of due care but, according to the Louisiana

Supreme Court’s interpretation of § 9:2800.6 in White and

Kennedy, would not establish that any hazard created by a puddle

or mat caught in a door existed for some time prior to Pollet’s

fall.   Moreover, under Kennedy and White, any evidence that it

was raining, that an area in which a fall took place was visible

to store personnel, and/or that Sears should have foreseen

hazards created by rain puddles or misplaced door mats in a high

volume store entrance because the merchant knew it was raining,

is not sufficient to support a finding that Sears had

constructive notice.   See Kennedy, 733 So.2d at 1189 n.1, 1190-91

(citing White, 699 So.2d at 1084-85).

     As at least one Louisiana appellate court recently noted,

when reluctantly affirming summary judgment in favor of a

merchant on a slip and fall claim analogous to Pollet’s claim,

“[i]t is apparent that the jurisprudence from the Louisiana

Supreme Court interpreting R.S. 9:2800.6 has made it almost

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impossible for a Plaintiff to prove the temporal element to show

constructive notice of a hazardous condition in a slip and fall

case, as noted by ... Justice Calogero in his dissent in White.”

Kimble v. Winn-Dixie La., Inc., 01-514 (La. App. 5 Cir.

10/17/02), 800 So.2d 987, 990, 992 (noting Justice Calogero’s

observation in White that the effect of that majority opinion is

to require in every slip and fall case that a plaintiff produce

an eyewitness who can testify as to the exact time that a hazard

appeared) (citing White, 699 So.2d at 1087).   Nevertheless, like

the intermediate appellate court in Kimble, we are bound in this

case by the Louisiana Supreme Court’s interpretation of

§ 9:2800.6.   See Labiche v. Legal Sec. Life Ins. Co., 31 F.3d

350, 351 (5th Cir. 1994) (“In order to determine state law,

federal courts look to final decisions of the highest court of

the state.”) (internal quotation and citations omitted).

Therefore, we conclude in accordance with the Louisiana Supreme

Court’s decisions in White and Kennedy, that because Pollet fails

to point to evidence in dispute indicating that any alleged

hazard created by the puddle and the mat existed for some time

prior to her fall, Pollet fails as a matter of law to support her

claim that Sears had constructive notice of a hazardous condition

causing her to fall, as required by § 9:2800.6.   Consequently,

the district court properly granted summary judgment in favor of

Sears on Pollet’s claim.



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                         V.   CONCLUSION

     For the foregoing reasons, the district court’s summary

judgment in favor of Sears on Pollet’s negligence claim is

AFFIRMED.




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