                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 15, 2005
                       _____________________
                                                         Charles R. Fulbruge III
                            No. 05-30253                         Clerk
                          Summary Calendar
                       _____________________

                         JANICE BROUSSARD,

                      Plaintiff - Appellant,

                              versus

               OUTBACK STEAKHOUSE OF FLORIDA, INC.,

                      Defendant - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
        for the Middle District of Louisiana, Baton Rouge
               District Court Cause No. 3:03-CV-353
_________________________________________________________________

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-appellant Janice Broussard appeals the district

court’s summary judgment in favor of defendant-appellee Outback

Steakhouse of Florida, Inc. (Outback) on her state law negligence

claim.   For the following reasons, the court affirms the

district court’s judgment.

     On or about May 16, 2002, Broussard dined with her husband

at an Outback restaurant in Metairie, Louisiana.    Sometime after

being seated at the bar, Broussard went to the restroom.        On her

     *
      Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

                                 1
return to the bar, she slipped and fell.

     Broussard later sued Outback for negligence in state court,

seeking relief for damages incurred from the fall.    Outback

asserted that Broussard’s claimed injuries and damages exceeded

$75,000 and removed the case to federal court based on diversity

jurisdiction.   Outback moved for summary judgment and contended

that Broussard could not establish all elements required by

Louisiana’s merchant-premises-liability statute.    The district

court granted the motion and entered summary judgment in

Outback’s favor.   Broussard appealed.

     This court reviews the district court’s order granting

summary judgment de novo, applying the same standards as the

district court.1   When there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law,

summary judgment is appropriate.2    To prevail on a motion for

summary judgment, the moving party must either present evidence

that negates the existence of some material element of the non-

moving party’s claim or point out that the non-moving party lacks

sufficient evidence to prove an essential element.3    The court

reviews the evidence in the light most favorable to the non-



     1
     Chaney v. New Orleans Pub. Facility Mgmt., 179 F.3d 164,
167 (5th Cir. 1999).
     2
      FED. R. CIV. P. 56(c).
     3
      See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

                                 2
movant,4 but the non-movant cannot rely only on the pleadings.

The non-movant must point to specific facts in dispute indicating

a genuine issue for trial.5    There is no issue for trial unless

the non-movant can present sufficient evidence for a reasonable

jury to return a verdict in the non-movant’s favor.6    If the

evidence is not sufficiently probative or merely colorable,

summary judgment is appropriate.7

     To prevail on her claim against Outback, Broussard must not

only prove that Outback was negligent, she must meet the

requirements set forth in Louisiana’s merchant-premises-liability

statute, LA. REV. STAT. § 9:2800.6.8   The relevant portion of that

statute provides as follows:

          In a negligence claim brought against a merchant by a
          person lawfully on the merchant’s premises for damages
          as a result of an injury, death, or loss sustained
          because of a fall due to a condition existing in or on
          a merchant’s premises, the claimant shall have the
          burden of proving, in addition to all other elements of
          his cause of action, all of the following:

          (1)   The condition presented an unreasonable risk of
                harm to the claimant and that risk of harm was
                reasonably foreseeable.

     4
     Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533
(5th Cir. 1997).
     5
      See Celotex, 477 U.S. at 324.
     6
      Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1986).
     7
      Anderson, 477 U.S. at 250-51.
     8
     See Felton v. Greyhound Lines, 324 F.3d 771 (5th Cir. 2003)
(explaining that state law governs the merits of federal
diversity cases).

                                  3
           (2)   A merchant either created or had actual or
                 constructive notice of a 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 clean-up or safety
                 procedure is insufficient, alone, to prove failure
                 to exercise reasonable care.9

Under this provision, the burden of proof never shifts to the

merchant, and thus, the plaintiff’s failure to prove any one of

the elements destroys her cause of action.10   Here, the parties

dispute the second element of the merchant-premises-liability

statute.   They agree that no evidence exists that shows Outback

had notice of the hazard, but disagree about whether Broussard

produced evidence that shows Outback created the hazard.    After

reviewing the record, the court concludes that Broussard

presented no evidence that shows Outback created the hazard.

     In their depositions, neither Broussard nor her husband

identified a substance on the floor that created a hazard or

caused the fall.   When asked to describe the substance that

caused the fall by texture, smell, or color, neither Broussard

nor her husband could provide a description.    Broussard testified

that no residue was left on her clothes and that she did not feel

anything on the floor with her hands.   Broussard’s husband

testified that he examined the area by “sliding back and forth

     9
      LA. REV. STAT. ANN. § 9:2800.6 (West 1997) (emphasis added).
     10
      Davenport v. Albertson’s Inc., 774 So. 2d 340, 343 (La. Ct.
App. 2000).

                                  4
from one foot to two foot [sic] just with [his] tennis shoes on”

and claimed the floor felt slippery or waxy although he did not

touch the floor with his hand.     Broussard and her husband further

testified that they did not see a customer or employee spill

anything on the floor.     Thus, no evidence exists of any substance

or condition that posed a hazard.

     Broussard, however, maintains that she presented

circumstantial evidence from which a jury could infer that

Outback created a hazard.     Broussard relies on evidence that

shows Outback usually places mats in various areas throughout the

restaurant, including the area where Broussard fell.     This

evidence indicates that mats are used to keep the floors clean

and safe because employees sometimes track water and debris from

the kitchen onto the dining room floor.     Broussard suggests that

the mere failure to place mats in front of the kitchen suffices

as evidence of the creation of a hazard.

     To support this assertion, Broussard relies on Barton v.

Wal-Mart.11     In Barton, the plaintiff slipped and nearly fell

when entering Wal-Mart on a rainy day.12     After a bench trial,

the trial judge determined that Wal-Mart failed to exercise

reasonable care to prevent the accident by not following its



     11
      Barton v. Wal-Mart Stores, 704 So. 2d 361 (La. Ct. App.
1997).
     12
          Barton, 704 So. 2d at 362-63.

                                    5
written rainy-day procedures.13     On appeal, Wal-Mart argued that

the trial judge erred by finding that the condition of the

entrance floor or the level of monitoring of the condition of

that floor presented an unreasonable risk of harm to the

plaintiff.14     The court of appeals upheld the trial judge’s

finding, noting that Wal-Mart’s written rainy-day procedures

cannot be effective or reasonable if they are not followed.15

That case, however, does not help Broussard.

     In Barton, the plaintiff presented evidence that the

entrance floor was wet.16     Although the plaintiff did not suggest

that Wal-Mart created the wet condition, he contended that Wal-

Mart had notice of the hazardous condition.      The trial judge

agreed, finding that Wal-Mart knew that water would accumulate at

the particular entrance because most customers used that entrance

and that Wal-Mart failed to follow its rainy day procedures.

Thus, on appeal, the Barton court considered whether the trial

judge’s finding that Wal-Mart failed to exercise reasonable care

because it did not follow its safety procedures was clearly

erroneous.      The court agreed with the trial judge, determining

that the finding was not clearly erroneous, but it did not


     13
          Id. at 367.
     14
          Id. at 363.
     15
          Id. at 367.
     16
          Id. at 365.

                                    6
suggest that a plaintiff can rely solely on the defendant’s

failure to follow its own procedures as evidence that the

defendant created a hazardous condition.17

     Broussard also relies on Martin v. Performance Motorwerks.18

In that case, the plaintiff slipped and fell at an automobile

dealership in an area adjacent to where an employee was steam

cleaning a car engine.19     After a bench trial, the trial judge

accepted the plaintiff’s version of how the accident occurred and

awarded her damages for her injuries.20     On appeal, the

dealership argued that the trial judge erred in applying §

9:2800.6 because there was no evidence of constructive notice of

a dangerous condition.21     The court of appeals, however,

explained that §9:2800.6 requires the plaintiff to prove either

that the merchant created the condition that caused the fall or

that the merchant had notice of the condition.22     Because the

court observed that the plaintiff had presented ample evidence

that the dealership had created the hazard that caused the fall,

the court of appeals refused to disturb the trial court’s


     17
          Id.
     18
          879 So. 2d 840 (La. Ct. App. 2004).
     19
          Martin, 879 So. 2d at 842.
     20
          Id. at 842-43.
     21
          Id. at 843.
     22
          Id. at 843-44.

                                       7
judgment.23    Thus, both Barton and Martin reiterate the rule that

where a plaintiff does not rely on the merchant’s notice of a

hazardous condition, § 9:2800.6 requires the plaintiff to present

evidence that the defendant merchant created the hazardous

condition.    Accordingly, Broussard was required to present

evidence from which a reasonable jury could find that Outback

created a hazard.    Because she did not, summary judgment was

proper.   Consequently, this court AFFIRMS the judgment of the

trial court.

AFFIRMED.




     23
      Id. at 844. During trial, the plaintiff and her daughter
testified that the entire floor was wet and there was a wax-like
substance in a small area near the spot of the fall. There was
also evidence that an employee was steam cleaning a car engine in
the area immediately adjacent to the spot where the fall
occurred.

                                  8
