     Case: 19-30854      Document: 00515370013         Page: 1    Date Filed: 04/02/2020




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

                                                                                   FILED
                                    No. 19-30854                                April 2, 2020
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
MARGARET MCDONALD,

              Plaintiff - Appellant

v.

BROOKSHIRE GROCERY COMPANY; TRAVELERS INDEMNITY
COMPANY OF CONNECTICUT; ARGEL BUILDING SERVICES,
INCORPORATED; UNITED SPECIALTY INSURANCE COMPANY,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:17-CV-981


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Margaret McDonald alleges that she sustained
serious injuries on June 20, 2016, when she slipped and fell on a slippery
substance left on the floor of a Brookshire Grocery Company (“Brookshire”)
store in Jonesboro, Louisiana. She filed a petition for damages on May 26,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30854
2017, against defendants Brookshire, Travelers Indemnity Company of
Connecticut      (“Travelers”),      and     Nationwide       Building      Services,     Inc.
(“Nationwide”)—the company Brookshire contracted with to provide cleaning
services. McDonald amended her petition twice: once on March 12, 2018, to
name as a defendant Argel Building Services, Inc. (“Argel”)—Nationwide’s
subcontractor—and again on March 5, 2019, to name as a defendant United
Specialty Insurance Company (“USIC”). All defendants, at different times and
on varying theories, either moved to dismiss for failure to state a claim or
requested summary judgment.              The district court granted the defendants’
motions. 1
       On appeal, McDonald first argues that the district court prematurely
granted summary judgment to Nationwide and erred in denying her motion to
amend her pleadings a third time to assert a new theory of liability—namely
that Nationwide exercised control over its subcontractor, Argel, and was thus
liable. We reject both arguments.
       Nationwide offered uncontested evidence that it subcontracted with
Argel. Louisiana law is clear that a party is not liable for the torts of its
subcontractor unless that party retains the right to control the manner of the
subcontractor’s performance. See Thompson v. Winn-Dixie Montgomery, Inc.,
181 So. 3d 656, 665 (La. 2015). McDonald offers no evidence that Nationwide
exercised control over the manner in which Argel performed its services.
Summary judgment was thus appropriate.
       As for McDonald’s second argument, nearly three years elapsed between
McDonald’s alleged injury and her eleventh-hour request to amend her


       1 “This court reviews a district court’s grant of summary judgment de novo, applying
the same legal standards as the district court.” Am. Home Assurance Co. v. United Space
All., LLC, 378 F.3d 482, 486 (5th Cir. 2004). We similarly apply de novo review to a district
court’s dismissal for failure to state a claim. Vizaline, L.L.C. v. Sarah Tracy, P.E., 949 F.3d
927, 931 (5th Cir. 2020).
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                                 No. 19-30854
pleadings. During that window of time, McDonald failed to propound any
discovery upon any defendant, let alone Nationwide. Moreover, McDonald has
offered nothing to suggest that discovery would reveal that Nationwide
negligently hired or exercised control over the manner in which Argel fulfilled
its contractual obligations. In the face of such inaction and unsubstantiated
assertions, it was proper for the district court to deny McDonald’s third request
to amend her pleading. See Crostley v. Lamar Cty., 717 F.3d 410, 420 (5th Cir.
2013) (“This court reviews a district court’s denial of a motion to amend for
abuse of discretion. A district court possesses broad discretion in its decision
whether to permit amended complaints.” (citation omitted)).
      McDonald next asserts that the district court erred when it granted
summary judgment to Brookshire. McDonald avers that Brookshire breached
its duty as a merchant under La. Stat. § 9:28006, and thus is liable. We
disagree.
      Section 9:2800.6 imposes liability on a merchant only if “[t]he merchant
either created or had actual or constructive notice of the condition which
caused the damage, prior to the occurrence.” Brookshire did not create the
dangerous condition because it contracted out the cleaning of the store floor to
Nationwide. McDonald speculates that a Brookshire employee was operating
the cleaning machine that caused the hazardous condition.           But at the
summary judgment stage, mere speculation is insufficient to rebut contrary
evidence. See TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th
Cir. 2002) (“Conclusional allegations and denials, speculation, improbable
inferences, unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue for trial.”).
Further, McDonald presented no evidence establishing that a sufficient time
elapsed between the floor cleaning and McDonald’s injury such that
Brookshire, through the exercise of ordinary care, could have learned that
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there was a slippery substance on the floor. See White v. Wal-Mart Stores, Inc.,
699 So. 2d 1081, 1086 (La. 1997) (“To prove constructive notice, the claimant
must show that the substance remained on the floor for such a period of time
that the defendant merchant would have discovered its existence through the
exercise of ordinary care.”); cf. Duncan v. Wal-Mart La., L.L.C., 863 F.3d 406,
410 (5th Cir. 2017) (“Without any ‘positive evidence’ that Wal-Mart ‘created or
had actual or constructive notice of the condition which caused the damage,’ as
§ 9:2800:6 requires, [the plaintiffs] cannot maintain their merchant-liability
claim.” (quoting White, 699 So. 2d at 1082)). For these reasons, the district
court correctly concluded that Brookshire was not liable for McDonald’s
injuries.
      Finally, McDonald contends that the district court erroneously granted,
on the basis of prescription, Argel’s motion for summary judgment and USIC’s
motion to dismiss. McDonald does not argue that her claims against these
defendants were timely. She instead attests that she neither knew nor could
have discovered through reasonable efforts that she had a cause of action
against Argel and USIC until she received initial disclosures on October 4,
2017 (for Argel), and August 23, 2018 (for USIC). She thus argues that the
doctrine of contra non valentem operates to interrupt the prescription period.
As with McDonald’s other arguments, this one comes up short.
      The doctrine of contra non valentem is applied only in exceptional
circumstances, such as “where [a] cause of action is not known or reasonably
knowable by the plaintiff.” Jenkins v. Starns, 85 So. 3d 612, 623 (La. 2012).
McDonald fails to demonstrate that it is warranted here.        From June 20,
2016—when McDonald was allegedly injured—to October 4, 2017—the date of
Nationwide’s initial disclosures—McDonald did nothing to determine which
contractor was responsible for the wet floor at Brookshire.        Plaintiffs in
McDonald’s shoes cannot sit on their claims and expect the courts to save them
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from their lack of diligence; they must use reasonable efforts to investigate
which parties might be liable. See Renfroe v. State ex rel. Dep’t of Transp. &
Dev., 809 So. 2d 947, 953 (La. 2002). McDonald alleges no facts to establish
that such reasonable efforts were taken. The district court thus did not err in
rejecting McDonald’s request to apply the doctrine of contra non valentem.
      In sum, McDonald has failed to establish any error warranting reversal.
We therefore AFFIRM the district court’s judgments.




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