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

                                                 FILED
                                                                           August 24, 2009

                                     No. 09-30184                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



PAUL WILLIAMS

                                                   Plaintiff - Appellant
v.

HOME DEPOT USA, INC,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                  No. 5:08-CV-9


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Paul Williams appeals the district court’s summary
judgment dismissing his slip-and-fall negligence suit against defendant-appellee
Home Depot USA, Inc. (“Home Depot”). For the reasons set forth below, we
affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 09-30184

            I. FACTUAL AND PROCEDURAL BACKGROUND
      On November 20, 2006, Williams was a customer at a Home Depot location
in Shreveport, Louisiana, when he slipped on fireplace sand that had leaked
from a torn bag onto the store’s floor. On November 19, 2007, Williams filed this
negligence suit in Louisiana state court. Home Depot later removed the suit to
the United States District Court for the Western District of Louisiana. On
January 26, 2009, the district court granted Home Depot’s motion for summary
judgment.    It found that Williams failed to show that Home Depot had
constructive notice of the fireplace sand because he had “not produced any
significantly probative evidence whatsoever to satisfy the temporal element
requirement of [Louisiana Revised Statute] 9:2800.6 that the floor area where
he slipped was in a condition that posed an unreasonable risk of harm for any
length of time.” Williams filed a timely notice of appeal.
                                II. DISCUSSION
      We review the district court’s grant of summary judgment de novo. Bagley
v. Albertsons, Inc., 492 F.3d 328, 330 (5th Cir. 2007). Summary judgment is
appropriate “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c).
A genuine issue of material fact exists when the evidence is such that a
reasonable jury could return a verdict for the non-movant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a summary judgment
motion, all facts and evidence must be taken in the light most favorable to the
non-movant. Bagley, 492 F.3d at 329 n.1.
      In order to establish his claim, Louisiana law requires that Williams show
that Home Depot “had actual or constructive notice of the condition which
caused the damage, prior to the occurrence.”               L A. R EV. S TAT. A NN.
§ 9:2800.6(B)(2). Constructive notice requires Williams to “prove[] that the

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condition existed for such a period of time that it would have been discovered if
the merchant had exercised reasonable care.”             L A. R EV. S TAT. A NN.
§ 9:2800.6(C)(1).
      Though there is no bright line time period, a claimant must show
      that “the condition existed for such a period of time . . .” 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 existed for some time
      period prior to the fall.
White v. Wal-Mart Stores, Inc., 699 So. 2d 1081, 1084–85 (La. 1997) (omission in
original). Although “[t]he statute places a heavy burden of proof on plaintiffs
in slip and fall cases,”   Bagley, 492 F.3d at 330 (internal quotation marks
omitted), “[t]his is not an impossible burden,” White, 699 So. 2d at 1085.
      Williams contends that he presented sufficient circumstantial evidence to
survive summary judgment on this temporal element because he established
that (1) the sand came from an open bag; (2) the open bag must have been moved
by either a Home Depot employee or customer; and (3) the sand leaked onto the
floor at some time before he entered that area of the store. He also contends that
he offered competent summary judgment evidence on Home Depot’s failure to
act reasonably in relation to the fireplace sand.
      Williams falls into the Louisiana Supreme Court’s category of a plaintiff
“who simply shows that the condition existed without an additional showing that
the condition existed for some time before the fall.” Id. at 1084. We recognized
in Bagley that this temporal showing could be based on a reasonable inference
drawn from circumstantial evidence. 492 F.3d at 331. In that case, we found



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that the puddle causing the spill “covered a significant area extending through
the aisle and into an adjoining back aisle” and drew a correlation between the
size and shape of the puddle and the duration it had existed. Id.; see also
Broussard v. Wal-Mart Stores, Inc., 741 So. 2d 65 (La. App. 1999); cf. Howard v.
Family Dollar Store No. 5006, 914 So. 2d 118, 122 (La. App. 2005) (declining to
make such an inference because of the lack of “additional evidence concerning
the origin and mechanics of the spill”).
      Williams’s reliance on Bagley is misplaced because unlike an expanding
fluid, the pile of sand that Williams slipped on was inert. Williams has shown
the existence of the condition but has presented no evidence from which we can
infer that the condition existed for such a period of time that Home Depot should
have discovered it. See Babin v. Winn-Dixie Louisiana, Inc., 764 So. 2d 37, 40
(La. 2000) (affirming the lower court’s grant of summary judgment where the
evidence that toothpick boxes, which were immobile like the fireplace sand in
this case and unlike the liquid in Bagley, had been in the aisle for some time
only reached the level of “speculation”).      Since Williams failed to present
evidence regarding the temporal element required § 9:2800.6(C)(1), the district
court was correct to grant Home Depot’s motion for summary judgment because
Home Depot did not have constructive notice of the condition.            Having
determined that Williams failed to satisfy this element, we do not need to reach
his second argument regarding whether Home Depot failed to exercise
reasonable care.
                              III. CONCLUSION
      For the reasons set forth above, we AFFIRM the district court’s grant of
summary judgment.




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