     Case: 11-30946     Document: 00511885338         Page: 1     Date Filed: 06/13/2012




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

                                                                            FILED
                                                                           June 13, 2012

                                       No. 11-30946                        Lyle W. Cayce
                                                                                Clerk

JEAN GRAY; ROBERT GRAY,

                                                  Plaintiffs - Appellants,
v.

WAL-MART LOUISIANA, L.L.C.,

                                                  Defendant - Appellee.



               Appeal from the United States District Court for the
                          Western District of Louisiana


Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
        Plaintiffs-Appellants Jean and Robert Gray appeal the district court’s
grant of summary judgment in favor of Defendant-Appellee Wal-Mart Louisiana,
L.L.C. (“Wal-Mart”). We REVERSE.
                                             I.
        On September 1, 2008, Jean Gray (“Gray”) went to a Wal-Mart in
Pineville, Louisiana. Severe storms caused by Hurricane Gustav blanketed the
Gulf region that day. After shopping for about an hour, she slipped in a puddle


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-30946    Document: 00511885338       Page: 2    Date Filed: 06/13/2012



                                   No. 11-30946

of clear liquid while pushing her cart down an aisle. Gray alleges that when she
slipped, her right foot slid backwards and caused her right knee to hit the
ground. Shortly after Gray’s injury, Wesley Aguillard, a Wal-Mart supervisor,
filled out an internal incident report that identified a hole in Wal-Mart’s roof as
the “source” of the puddle. Later, when he was deposed, Aguillard testified that
the incident report was based not on direct knowledge but instead on an
“assumption,” which in turn was based on Aguillard’s knowledge of other leaks
in Wal-Mart’s roof and the heavy rain outside.
      On July 21, 2009, Gray and her husband filed suit against Wal-Mart in
Louisiana state court seeking to recover damages for injuries caused by the fall.
They asserted state law negligence claims, alleging that Gray slipped in a puddle
of rainwater that leaked from a hole in the store’s roof. Wal-Mart removed the
case to federal court based on diversity jurisdiction and filed a motion for
summary judgment. The district court granted Wal-Mart’s motion for summary
judgment on September 29, 2011, on the ground that Appellants had failed to
create an issue of fact as to whether they had satisfied the standard set forth in
La. Rev. Stat. Ann. § 9:2800.6(B)(2) (2012).
                                         II.
      We review the grant of summary judgment de novo, applying the same
standard used by the district court. Hill v. Carroll Cnty., Miss., 587 F.3d 230,
233 (5th Cir. 2009). Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ if its resolution in
favor of one party might affect the outcome of the lawsuit under governing law.”
Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quoting
Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)). “An issue
is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict
for the nonmoving party.” Id. (quoting Hamilton, 232 F.3d at 477). When

                                          2
   Case: 11-30946        Document: 00511885338             Page: 3      Date Filed: 06/13/2012



                                          No. 11-30946

reviewing motions for summary judgment, we “construe all facts and inferences
in the light most favorable to the non-moving party . . . .” Hernandez v. Yellow
Transp., 670 F.3d 644, 650 (5th Cir. 2012).
                                                 III.
      As the district court correctly noted, Appellants’ claims are governed by
La. Rev. Stat. Ann. § 9:2800.6(B). Subsection (2) of § 9:2800.6(B) requires that
plaintiffs asserting slip-and-fall claims against a merchant prove that “[t]he
merchant either created or had actual or constructive notice of the condition
which caused the damage, prior to the occurrence.” See also Kennedy v. Wal-
Mart Stores, Inc., 733 So.2d 1188, 1190 (La. 2004) (“In a slip and fall case, the
plaintiff’s burden of proof is set forth in . . . [§] 9:2800.6.”). The district court
granted summary judgment solely on the basis that Appellants could not satisfy
the standard set forth in La. Rev. Stat. Ann. § 9:2800.6(B), as Appellants were
unable to show that Wal-Mart created the puddle or had either actual or
constructive notice of the puddle before Gray fell.
      On appeal, Appellants argue that they raised a fact issue as to whether
Wal-Mart “created the hazard because its own roof leaked or it had actual
knowledge of the hazard because it knew its roof leaked.”1 We agree with the
district court that Appellants have not created an issue of fact as to whether
Wal-Mart had actual knowledge of the leak that Appellants contend caused
Gray’s injury.
      We conclude, however, that a genuine issue of material fact exists as to
whether Wal-Mart “created” the puddle that injured Gray. If a hole in Wal-
Mart’s roof caused the formation of the puddle that injured Gray, then Wal-Mart
“created” the condition that injured Gray, and La. Rev. Stat. Ann. §




      1
          On appeal, appellants do not argue that Wal-Mart had constructive notice of the puddle.

                                                  3
    Case: 11-30946         Document: 00511885338             Page: 4       Date Filed: 06/13/2012



                                            No. 11-30946

9:2800.6(B)(2) is satisfied.2 Cf. Pena v. Delchamps, 960 So.2d 988, 991-92 (La.
App. 2007) (merchant “created” hazard where plaintiff had slipped on damp
floor, and evidence showed that merchant had just mopped area where plaintiff
had slipped); Savoie v. Sw. Lous. Hosp. Ass’n, 866 So.2d 1078, 1081 (La. App.
2004) (merchant “created” hazard where plaintiff had slipped on wax-like
substance on floor, and merchant was responsible for cleaning floor). Thus, this
appeal boils down to whether Appellants have presented enough evidence to
create an issue of fact as to whether a leak in Wal-Mart’s roof created the puddle
that injured Gray. We conclude that they have. The incident report specifically
asserts that the “source” of the puddle that injured Gray was a hole in Wal-
Mart’s roof. Especially since a Wal-Mart manager prepared the inculpatory
report immediately after the accident, this report strongly supports Appellants’
argument that Wal-Mart’s roof created the puddle that caused her injury. Wal-
Mart responds only that the incident report was not based on direct knowledge:
Aguillard’s deposition, Wal-Mart argues, establishes that he did not know
whether a leak had caused Gray’s injury. According to the deposition, Aguillard
merely assumed a leak was the source of the puddles because he knew of other
holes in Wal-Mart’s roof.
        When considered in conjunction with the incident report, Aguillard’s
deposition testimony does not demonstrate Wal-Mart’s entitlement to summary
judgment. By asserting without qualification that a hole in Wal-Mart’s roof was
the source of the puddle that injured Gray, the incident report provides a strong
basis for establishing that Gray has satisfied the requirements set forth in La.


        2
           While Wal-Mart’s briefing emphasizes the requirement in La. Rev. Stat. Ann. § 9:28:00.6(B)(2)
that the plaintiff provide proof that the hazardous condition existed prior to plaintiff’s accident, this
requirement applies to plaintiffs seeking to prove that the defendant had constructive knowledge of the
hazard that caused plaintiff’s injury. See Kennedy, 733 So. 2d at 1190. A plaintiff that proves that the
defendant “created” the condition that injured plaintiff need not prove constructive knowledge, as the
statutory requirement is disjunctive. See Savoie, 866 So. 2d at 1082. Therefore, a plaintiff relying on the
defendant’s creation of the hazard does not need to prove this “temporal element.”

                                                    4
    Case: 11-30946         Document: 00511885338               Page: 5      Date Filed: 06/13/2012



                                             No. 11-30946

Rev. Stat. Ann. § 9:2800.6(B)(2). The trier of fact is certainly entitled to discount
the weight of this incident report based on Aguillard’s subsequent deposition.
But on a motion for summary judgment, we must view the evidence in the light
most favorable to the non-moving party. Hernandez, 670 F.3d at 650. Viewed
in that light, a self-serving, after-the-fact deposition does not negate a
contemporaneous report containing admissions against the interest of the
preparer. A genuine issue of material fact therefore exists as to whether Wal-
Mart created the puddle that injured Gray.3
                                                    IV.
        For these reasons, we REVERSE the district court’s judgment and
REMAND for further proceedings consistent with this opinion.




        3
             The district court’s grant of summary judgment was based solely on La. Rev. Stat. Ann. §
9:2800.6(B)(2). We offer no opinion as to whether Wal-Mart is entitled to summary judgment on any other
ground. While the brief Wal-Mart submitted to this court contains two conclusory sentences arguing that
the district court’s ruling might be affirmed on the alternative basis that Appellants have not satisfied La.
Rev. Stat. Ann. § 9:2800.6(B)(3), this argument is not sufficiently developed for us to evaluate on appeal.

                                                     5
