     Case: 11-30742    Document: 00511788298         Page: 1    Date Filed: 03/14/2012




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

                                                                           FILED
                                                                         March 14, 2012

                                    No. 11-30742                         Lyle W. Cayce
                                  Summary Calendar                            Clerk



LISA TAYLOR,

                                                 Plaintiff - Appellant
v.

WAL-MART STORES, INCORPORATED; MONIQUE WILLIAMS,

                                                 Defendants - Appellees



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-1503


Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
        Appellant, Lisa Taylor, appeals the district court’s grant of summary
judgment in favor of Appellees, Wal-Mart Stores, Inc. and Monique Williams, in
a Louisiana delictual action for failure to maintain a safe premises. The district
court found that Taylor failed to provide sufficient evidence                    to prove
constructive notice, which is an essential element of her claim. Because the




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 11-30742
district court correctly concluded that Taylor did not present sufficient evidence
to establish constructive notice, we AFFIRM.
                              I. BACKGROUND
      Lisa Taylor was shopping at a Wal-Mart in New Orleans, Lousiana. When
she was putting her purchases into a shopping cart, she slipped on a wet
substance on the store’s floor near the check-out stations and sustained a
number of injuries. As a result, she filed suit in district court seeking damages
for her injuries, lost wages and lost earning capacity. The parties filed cross-
motions for summary judgment and the district court found Wal-Mart was
entitled to judgment as a matter of law because Taylor failed to prove an
essential element of her claim.
      Plaintiff alleges that the surveillance video she presented established a
genuine issue of material fact. The tape captures roughly an hour of footage
leading up to the incident. It shows a continuous flow of shoppers and buggies
going through Wal-Mart’s check-out stations. About thirteen minutes prior to
the incident, a customer shuffles her feet in the area where Taylor fell. However,
a number of buggies and customers subsequently pass through the area where
the incident occurred without any sign of trouble. Moreover, the wet substance
is not visible at any time.
                         II. STANDARD OF REVIEW
      This court reviews a district court’s decision to grant summary judgment
de novo. See Bagley v. Albertsons, Inc., 492 F.3d 328, 330 (5th Cir. 2007).
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” FED. R. CIV. PROC. 56.

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                                  No. 11-30742
                              III. DISCUSSION
      Among other things, Louisiana law requires a plaintiff claiming a slip-and-
fall injury to demonstrate that “[t]he merchant either created or had actual or
constructive notice of the condition which caused the damage, prior to the
occurrence.” LA. REV. STAT. ANN. § 9:2800.6(B)(2). Constructive notice is further
defined as “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.” LA. REV. STAT. ANN. § 9:2800.6(C)(1). Failure to prove this or
any element of the claim is fatal to the plaintiff’s case. See White v. Wal-Mart
Stores, Inc., 699 So.2d 1081, 1086 (La. 1997).
      After reviewing the evidence, this court agrees with the district court’s
determination that Taylor failed to establish notice, an essential element of her
claim. Though Taylor alleges that the surveillance video proves that the hazard
existed at least thirteen minutes prior to the incident, the district court noted:
   The video merely shows the passage of time and lacks any visual evidence
   of a wet substance on the floor. The video does not show someone or
   something creating the wet substance; it does not show others slipping or
   avoiding the area; it shows no one making a failed attempt to clean or
   secure the area. To conclude what the plaintiff asks would require this
   court to draw a series of impermissible inferences unsupported by this
   summary judgment record.
“Mere speculation or suggestion is not sufficient to meet this burden, and courts
will not infer constructive notice for purposes of summary judgment where the
plaintiff’s allegations are no more likely than any other potential scenario.”
Bagley, 492 F.3d at 330. Given the ambiguous nature of the video, Taylor failed
to establish a material fact issue concerning this necessary element of her claim.
See id. at 331 (requiring some proof of the “the origin or nature of the liquid to
imply a necessary passage of time”); Demouy v. Sam’s Wholesale, Inc., No. 2010

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                                 No. 11-30742
CA 2295, 2011 WL 2981117, at *2 (La. App. 1st Cir. June 10, 2011) (affirming
the district court’s grant of summary judgment when a surveillance video did not
reveal the hazard). For these reasons, the judgment is AFFIRMED.




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