                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                    UNITED STATES COURT OF APPEALS
                                                                   April 17, 2007
                         FOR THE FIFTH CIRCUIT
                                                              Charles R. Fulbruge III
                                                                      Clerk


                                06-30943
                            Summary Calendar



     TENNA MARIE COURVILLE,

                                           Plaintiff-Appellant,

                                  v.

     TARGET CORPORATION OF MINNESOTA,

                                           Defendant-Appellee.



         Appeal from the United States District Court for the
              Western District of Louisiana, Lake Charles
                        No. 2:05-cv-01495-PM-APW




Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant,     Tenna    Marie   Courville,    appeals      the

district court’s grant of summary judgment in favor of Target in

this slip and fall case.    Finding that Courville has raised a fact

issue, we VACATE and REMAND.



     I.     BACKGROUND

     *
       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this opinion should not be published and is not precedent except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.
     On August 13, 2004, Courville was shopping with her daughter

at a Target Store in Lake Charles, Louisiana.         After paying for her

purchases, Courville was putting the credit card and receipt in her

wallet and walking toward the exit when she slipped and fell.

After the fall, Courville noticed there was a puddle of clear

liquid on the floor approximately a foot long and a few inches

wide.    The accident occurred in a high traffic area between the

snack bar and the checkout lines.       Courville has alleged injuries

to her knee, which required surgery and physical therapy.

     Courville    brought   a   negligence   action    against   Target   in

Louisiana state court. Target removed the suit to federal district

court and moved for summary judgment, arguing that there was no

genuine issue of material fact with respect to whether Target

created or had actual or constructive notice of the liquid that

allegedly caused the incident.          The district court agreed and

granted summary judgment in favor of Target.          Courville appeals.

     II.    STANDARD OF REVIEW

     We review a district court’s grant of summary judgment de

novo, applying the same standards as the district court.             E.g.,

Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir.

1996).     Summary judgment is proper if the record reflects “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. P. 56(c).


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      III. ANALYSIS

      It is undisputed that the instant case is based on diversity

jurisdiction    and   governed       by   Louisiana   law.   The    applicable

Louisiana statute sets forth the plaintiff’s burden of proof in a

claim against a merchant:

      B. 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.

      (2)   The merchant either created or had actual or
      constructive notice of the 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  cleanup   or   safety   procedure   is
      insufficient, alone, to prove failure to exercise
      reasonable care.

La.Rev.Stat. Ann. 9:2800.6B (1996).

      The district court found that no genuine issue of material

fact existed regarding whether the merchant created or had notice

of   the   liquid   hazard.      §   9:2800.6B(2).       Here,    there   is   no

allegation that Target created or had actual notice of the hazard.

Instead, Courville argues that she has shown an issue of fact with

respect to whether Target had constructive notice.               “‘Constructive

notice’ means the claimant has proven that the condition existed

for such a period of time that it would have been discovered if the

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merchant had exercised reasonable care.”   § 9:2800.6C(1).

     In White v. Wal-Mart Stores, Inc., the Louisiana Supreme Court

held that a plaintiff has the burden of showing the existence of

the condition or hazard prior to the fall.     699 So.2d 1081 (La.

1997) (interpreting § 9:2800.6). If a plaintiff fails to make such

a showing, “[t]he statute does not allow for the inference of

constructive notice.”   Id. at 1084.   Accordingly, the dispositive

question in the instant case is whether Courville has raised a fact

issue regarding whether the liquid on the floor existed for a

period of time sufficient to give rise to constructive notice.

Simply demonstrating the existence of the hazard does not satisfy

the burden.   White, 699 So.2d at 1084.    “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.”   Id. at 1084-85.   Whether the time

period is of sufficient length such that a merchant exercising

reasonable care would have discovered the hazard is a question of

fact.   Id. at 1084.

     Courville has shown that there were Target employees in close

proximity to the puddle of liquid on the floor.     However, “[t]he

presence of an employee of the merchant in the vicinity in which

the condition exists does not, alone, constitute constructive

notice, unless it is shown that the employee knew, or in the

exercise of reasonable care should have known, of the condition.”


                                  4
§ 9:2800.6C(1). Additionally, Courville’s attorney deposed Phyllis

Granger, a Target cashier who was not a witness to the accident.

Relying on a photograph of the area of the store where the fall

occurred, Granger testified that a cashier would have been able to

see the liquid on the floor when a customer was using a credit card

to   pay.   As    previously   set   forth,    Courville   paid   for   her

merchandise with a credit card.          Thus, there is evidence to show

that a cashier could have seen the liquid on the floor.       Cf. White,

699 So.2d 1086 n.5 (noting that the plaintiff failed to introduce

evidence that an employee could have seen the spill on the floor).

      Courville testified that there was one person in the checkout

line who was leaving as she approached. Courville and her daughter

had been shopping for more than an hour and had numerous items in

their shopping cart.     She did not see the “spill” occur while

waiting in line.    That is circumstantial evidence that the spill

existed at least immediately prior to Courville approaching the

checkout line.2     Further, it is undisputed that the accident

occurred in a high traffic area between the snack bar and the

checkout lines.    Because the hazard was in a high traffic area, it

is arguable that only a very short period of time                 would be

necessary to discover the hazard.          Cf. White, 699 So.2d at 1085

(reasoning that “[w]hile the length of time may arguably diminish


      2
        Although Melissa Menard, a Target employee, testified she
did not see the liquid just prior to the incident, it is undisputed
that the puddle existed.

                                     5
in relevance under some circumstances, it certainly does not

diminish to the point of being eliminated”).

       Additionally, and most significantly, both Courville and her

daughter testified during their depositions that after she fell,

the “manager,” Cher Carriere, looked at the puddle and admitted

that “they should have cleaned that up; they should have seen it.”2

This       statement   indicates   that       Carriere,   after   assessing   the

situation, believed a Target employee should have been aware of the

liquid, and as such, this admission from a supervisor supports a

finding of constructive notice.           Viewing the evidence in the light

most favorable to Courville, we are persuaded that she has raised

a genuine issue of material fact with respect to whether the hazard

“existed for such a period of time that it would have been

discovered if the merchant had exercised reasonable care.”                Thus,

we vacate the district court’s judgment and remand for further

proceedings.

       VACATED and REMANDED.




       2
       Carriere has denied this admission; however, we look at the
evidence in the light most favorable to Courville. We note that
although Carriere is referred to by Courville and Courville’s
daughter as the manager, her title at the time was “Leader on
Duty.”

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