     Case: 13-30080       Document: 00512297422         Page: 1     Date Filed: 07/05/2013




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

                                                                            FILED
                                                                            July 5, 2013

                                     No. 13-30080                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



BELINDA BEARB; DAVID BEARB,

                                                  Plaintiffs - Appellants
v.

WAL-MART LOUISIANA, LIMITED LIABILITY CORPORATION,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:10-CV-351


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Belinda and David Bearb appeal the summary judgment dismissing their
merchant-liability claim, and derivative claims, against Wal-Mart Louisiana.
Their claims arise out of Belinda Bearb’s injuries sustained by slipping and
falling on a wet substance, believed to be water, in Wal-Mart’s Marksville,
Louisiana, store. They contend the district court erred because there are
genuine disputes of material fact with regard to whether Wal-Mart created, or


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 13-30080

had actual or constructive notice of, the wet condition that caused Bearb’s fall.
AFFIRMED.
      Summary judgment is reviewed de novo, and we apply the same standard
as the district court, viewing the evidence in the light most favorable to the non-
movant. E.g., First Am. Title Ins. Co. v. Continental Cas. Co., 709 F.3d 1170,
1173 (5th Cir. 2013). Summary judgment is appropriate where “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).
      To survive summary judgment, the Bearbs must show a genuine dispute
as to whether Wal-Mart could be found liable under the Louisiana merchant-
liability statute, LA. REV. STAT. § 9:2800.6. The statute requires them to prove:
the floor’s wet condition created an unreasonable risk of reasonably foreseeable
harm to Belinda Bearb; Wal-Mart created, or had actual or constructive notice
of, the condition’s existence prior to her injury; and, Wal-Mart failed to exercise
reasonable care. Id. § 2800.6(B). They fail to show a genuine dispute of material
fact for at least the second element.
       The Bearbs do not contend Wal-Mart had actual notice of the wet
condition of the floor before Belinda Bearb’s fall. Therefore, they must show a
genuine dispute of material fact for whether Wal-Mart created or had
constructive notice of the wet condition. Constructive notice includes a temporal
element; i.e., if plaintiff fails to show the hazardous condition existed “for some
time period prior to the fall,” then she fails to meet her statutory burden. White
v. Wal-Mart Stores, Inc., 699 So.2d 1081, 1084-85 (La. 1997).
      As the district court correctly noted, the Bearbs offer only speculation and
their own unsubstantiated statements to support their claims that: Wal-Mart
created the condition because it resulted from either a leaking skylight or wet
shopping carts; and Wal-Mart had constructive notice of the condition because
there was a large quantity of water in a high-traffic area of the store. In the

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                                  No. 13-30080

absence of any facts in the record to support their claims, it is clear the Bearbs
are unable to create a genuine dispute of material fact to survive summary
judgment. See FED. R. CIV. P. 56(a); Indian Harbor Ins. Co. v. Valley Forge Ins.
Grp., 535 F.3d 359, 362-63 (5th Cir. 2008) (“To survive a motion for summary
judgment, the nonmovant must come forward with specific facts showing that
there is a genuine issue of material fact.”).
      The Bearbs must show a genuine dispute of material fact for all three
statutory elements in order to survive summary judgment, and they fail to do so
for the second element. Therefore, we need not address whether the floor’s
condition created an unreasonable risk, or whether Wal-Mart failed to exercise
reasonable care.
      AFFIRMED.




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