     Case: 17-30930      Document: 00514718845         Page: 1    Date Filed: 11/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                      No. 17-30930
                                                                            Fifth Circuit

                                                                          FILED
                                                                   November 9, 2018

QUANDRALA PETERSON,                                                  Lyle W. Cayce
                                                                          Clerk
              Plaintiff - Appellant

v.

BROOKSHIRE GROCERY COMPANY; TRAVELERS INDEMNITY
COMPANY OF CONNECTICUT,

              Defendants - Appellees



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:16-CV-1646


Before ELROD, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Quandrala Peterson slipped and fell while grocery
shopping at Super One Foods, which is owned and operated by Brookshire
Grocery Company (Brookshire). Peterson filed suit in state court against
Brookshire and its insurer, The Travelers Indemnity Company of Connecticut
(collectively, Defendants), alleging that she slipped on a “clear puddle of liquid”
on the floor, a hazard that she claims resulted from Brookshire’s negligence.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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After removing the case to federal district court, Defendants filed a motion for
summary judgment. The district court granted summary judgment in favor of
Defendants and dismissed Peterson’s suit with prejudice. Peterson appealed.
We AFFIRM the judgment of the district court.
                                       I.
      This case arises from a slip and fall Peterson sustained in November
2015 while shopping at Super One Foods, a grocery store owned and operated
by Brookshire Grocery Company. Following an announcement regarding the
store’s impending closing time, Peterson was “lightly trotting” back to her
shopping cart when she allegedly slipped and fell on a “clear substance” on the
floor in the dairy/beer section, causing an injury to her right knee. The
assistant store manager on duty, George Neill, reported to the scene of
Peterson’s fall and saw the clear substance on the floor, which he photographed
and documented in the accident report.
      Peterson filed a negligence suit in state court against Brookshire and its
insurer, alleging a claim pursuant to La. Rev. Stat. Ann. § 9:2800.6, the
Louisiana Merchant Liability Act (LMLA). Defendants removed the diversity
action to federal court and filed a motion for summary judgment, seeking
dismissal of Peterson’s claims. In their motion for summary judgment,
Defendants averred that Peterson’s failure to prove the element of constructive
notice as required by the LMLA was fatal to her merchant liability claim.
Specifically, Defendants asserted that there was a “complete lack of evidence”
that Brookshire had constructive notice of the liquid substance on the floor
prior to Peterson’s fall, arguing that Peterson’s “speculation, supposition,
theory, and inference” are insufficient to avoid summary judgment.
      Upon consideration of the depositions of Peterson and Super One Foods’
assistant store manager, George Neill, as well as the store’s video surveillance,
the district court granted summary judgment in favor of Defendants,
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dismissing Peterson’s claims with prejudice. Specifically, the district court
concluded that Peterson failed to raise a genuine issue of material fact that
Brookshire had constructive notice of the liquid. Finding Peterson’s argument
“speculative,” the district court held that Peterson failed to offer positive
evidence sufficient to satisfy the temporal element of constructive notice as
required for her LMLA claim: “Peterson has failed to offer positive evidence
that the liquid existed prior to her fall and for some period of time prior to her
fall to establish ‘constructive notice’ in order to meet her burden on [the]
Motion for Summary Judgment.”
      Peterson timely appealed. On appeal, Peterson argues that the district
court erroneously concluded that there were no genuine issues of material fact
regarding Brookshire’s constructive notice of the liquid on the floor. Rather,
Peterson claims that there was sufficient circumstantial evidence showing that
Brookshire had constructive notice and argues that the district court
improperly weighed evidence and failed to make all reasonable inferences in
her favor when rendering its decision.
                                       II.
      We review a 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 where “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
function of the judge at the summary judgment stage is not to “weigh the
evidence and determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). A genuine dispute of material fact exists when, based on the evidence,
“a reasonable jury could return a verdict for the nonmoving party.” Id. at 248.
In reviewing summary judgment, we construe “all facts and inferences in the
light most favorable to the nonmoving party.” McFaul v. Valenzuela, 684 F.3d
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564, 571 (5th Cir. 2012) (citation omitted). However, a party cannot defeat
summary judgment with “conclus[ory] allegations, unsupported assertions, or
presentation of only a scintilla of evidence.” Id. (citing Hathaway v. Bazany,
507 F.3d 312, 319 (5th Cir. 2007)). Instead, the nonmovant must go beyond the
pleadings and designate specific facts that prove that a genuine issue of
material fact exists. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
                                             III.
       Merchant liability for slip and fall cases is governed by La. Rev. Stat.
Ann. § 9:2800.6, referred to as the Louisiana Merchant Liability Act (LMLA), 1
which provides:
       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.




       1It is undisputed that the instant case is based on diversity jurisdiction and governed
by Louisiana law.
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La. Rev. Stat. Ann. § 9:2800.6(B). Because the plaintiff has the burden of
proving all three elements under the LMLA, “the failure to prove any is fatal
to the claimant’s cause of action.” White v. Wal-Mart Stores, Inc., 699 So. 2d
1081, 1086 (La. 1997).
      The issue on appeal is whether Peterson has shown a genuine dispute of
material fact as to the second element—specifically, whether Brookshire had
constructive notice of the injury-causing condition prior to her fall. A merchant
is considered to have “constructive notice” if the claimant proves “that the
condition existed for such a period of time that it would have been discovered
if the merchant had exercised reasonable care.” § 9:2800.6(C)(1). A claimant
cannot solely rely on the “presence of an employee of the merchant in the
vicinity in which the condition exists” to prove constructive notice, “unless it is
shown that the employee knew, or in the exercise of reasonable care should
have known, of the condition.” Id.
      Based on the language of the statute (“for such a period of time”),
constructive notice necessarily includes a temporal element. White, 699 So. 2d
at 1084. Simply demonstrating the existence of the hazard is insufficient. Id.
Though there is no bright line time period required to prove the mandatory
temporal element of constructive notice under the LMLA, a plaintiff must
“make a positive showing of the existence of the condition” for “some time
period prior to the fall.” Id. at 1084–85 (interpreting La. Rev. Stat. § 9:2800.6);
see also Duncan v. Wal-Mart La., L.L.C., 863 F.3d 406, 409–10 (5th Cir. 2017).
“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.” White, 699 So. 2d at 1084. “The
statute does not allow for the inference of constructive notice absent some
showing of this temporal element.” Id. Further, shifting the burden to the


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                                   No. 17-30930
defendant to disprove the existence of the condition is impermissible under the
statute. Id. at 1085–86.
      The LMLA “places a heavy burden of proof on plaintiffs.” Bagley, 492
F.3d at 330 (quoting Jones v. Brookshire Grocery Co., 847 So. 2d 43, 48 (La.
App. 2 Cir. 2003)); see also White, 699 So. 2d at 1086 (“[D]efendant [merchant]
need not come forward with positive evidence of the absence of the spill. . . .
Because it is the claimant’s burden to prove its existence for some period of
time, the absence of evidence can not support the claimant’s cause of action.”).
It is insufficient for a plaintiff to rely on “[m]ere speculation or suggestion.”
Bagley, 492 F.3d at 330 (quoting Allen v. Wal-Mart Stores, Inc., 850 So. 2d 895,
898–99 (La. App. 2 Cir. 2003)). “[C]ourts will not infer constructive notice for
the purposes of summary judgment where the plaintiff's allegations are ‘no
more likely than any other potential scenario.’” Id.
      To survive summary judgment, Peterson must present evidence to show
a genuine dispute of material fact as to whether Brookshire had constructive
notice of the alleged damage-causing condition. 2 We agree with the district
court that Peterson did not meet her heavy statutory burden. Peterson failed
to offer positive evidence that the liquid existed for some period of time prior to
her fall, and thus cannot satisfy her burden of establishing the existence of
material fact with regard to the contested element of constructive notice.
White, 699 So. 2d at 1084 (“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.”); see also Leger v. Wal-Mart La., LLC, 343 F. App’x
953, 955 (5th Cir. 2009); Kennedy v. Wal-Mart Stores, Inc., 733 So. 2d 1188,



      2 Peterson does not contend that Brookshire created or had actual notice of the
hazardous condition.
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1191 (La. 1999); Luft v. Winn-Dixie Montgomery, LLC, 228 So. 3d 1269 (La.
App. 5 Cir. 2017).
      Peterson testified that she did not see the substance on the floor before
her fall, despite walking near the area on two prior occasions; she admits she
does not know what the substance was, its source, or how long the substance
was on the floor. Peterson further testified—and the photograph taken by Neill
confirms—that the substance was clear and had no distinctive marks, such as
grocery cart tracks, footprints, or dirt or debris, or any other unique
characteristics that would suggest that the liquid had existed for some period
of time prior to her fall. See Luft, 228 So. 3d at 1274 (citing Allen, 850 So. 2d at
898). Further, Plaintiff failed to offer testimony of any witness stating that the
substance was on the floor prior to Peterson’s fall, and admitted that she did
not know of anyone that claimed to have such knowledge.
      It is undisputed that Brookshire’s assistant manager, Neill, was in close
proximity to the area approximately 22 minutes prior to Peterson’s fall.
However, an employee’s mere proximity to a hazard, without temporal
evidence of how long the substance has been present, is not enough to establish
a merchant’s constructive knowledge. La. Rev. Stat. Ann. § 9:2800.6(C)(1); see,
e.g., Babin v. Winn-Dixie Louisiana, Inc., 764 So. 2d 37, 40 (La. 2000). There is
no evidence that the allegedly hazardous condition existed at the time Neill
walked through the aisle, or that Brookshire, in the exercise of reasonable care,
should have noticed the substance on the floor.
      In his deposition, Neill explained that Brookshire’s employees are
trained to continuously survey the store floor for spills and to immediately take
action when they discover liquid on the floor. Neill testified that despite his
training and being “within feet” of the location of the accident prior to
Peterson’s fall, he did not see or have knowledge of the clear substance on the
floor prior to Peterson’s fall, nor could he explain the source of the unknown
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                                  No. 17-30930
liquid. Neill also stated that he did not know of anyone that claimed to have
knowledge that the substance was on the floor prior to Peterson’s fall.
Moreover, the video does not suggest that Neill, or any other store employee or
customer, saw the spill or otherwise should have seen it. A claim to the
contrary amounts to little more than speculation. See White, 699 So. 2d at 1085
(“The disbelief of positive evidence is not evidence of the contrary. Rather, even
if entirely discredited, it is merely a complete lack of any evidence.”); see also
Evans v. Winn-Dixie Montgomery, LLC, 177 So. 3d 386, 392 (La. App. 5 Cir.
2015).
      Peterson has offered no evidence regarding how long the substance
existed prior to her slip and fall. Instead, she speculates from the lack of
affirmative video evidence of a cause for the substance in the 22 minutes before
she slipped that it must have been present at least 22 minutes prior to her fall
and reasonably should have been discovered by Neill. We disagree with
Peterson’s interpretation of the video surveillance and cannot accept her
unsubstantiated assertions: Peterson’s reliance on “mere speculation or
suggestion” is insufficient to defeat summary judgment. See Bagley, 492 F.3d
at 330; see also Babin, 764 So. 2d at 40; Bearb v. Wal-Mart La., L.L.C., 534 F.
App’x 264, 265 (5th Cir. 2013) (affirming summary judgment dismissing
plaintiffs’ merchant-liability claim because the only evidence that the
merchant had constructive notice of the wet condition was “speculation and
[plaintiffs’] own unsubstantiated statements”).
      First, the video surveillance—which was recorded from the opposite end
of the aisle where the accident occurred—lacks any visual evidence of the liquid
substance on the floor. Similarly, the video footage does not evidence any other
customers attempting to avoid the alleged hazardous area. To the contrary, as
noted by the district judge, the area where Peterson fell was heavily trafficked
and numerous customers are seen effortlessly traversing the area where
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                                  No. 17-30930
Peterson fell. The source of the liquid is not discernable from the surveillance
video: the video does not clearly show someone or something creating the wet
substance or otherwise provide any indication as to the length of time the
liquid substance remained on the floor prior to Peterson’s slip and fall. We have
considered similar ambiguous video evidence insufficient to infer the temporal
element of constructive notice for purposes of summary judgment. See Taylor
v. Wal-Mart Stores, Inc., 464 F. App’x 337, 339 (5th Cir. 2012); see also Adams
v. Dolgencorp, L.L.C., 559 F. App’x 383 (5th Cir. 2014).
      Second, contrary to Peterson’s assertion, the video surveillance does not
definitively show that the spill did not occur after Neill walked through the
area. “[T]he lack of evidence showing the non-existence of the spill is not
evidence of the existence of the spill, but merely the absence of evidence.”
White, 699 So. 2d at 1086. Thus, in order to accept Peterson’s assertion that
the liquid had been on the floor for at least 22 minutes prior to her fall would
require us to make a number of impermissible inferences unsupported by the
summary judgment record. See Taylor, 464 F. App’x at 339. Such speculation
and negative reasoning are not sufficient to carry Peterson’s burden of putting
forth “positive evidence” that the damage-causing condition existed for a period
of time sufficient to demonstrate constructive notice. See Bagley, 492 F.3d at
330 (citing Allen, 850 So. 2d at 898–99).
      Upon our review of the record, we conclude that Peterson failed to
present positive evidence establishing that the condition existed for some time
prior to her fall. Given the absence of facts in the record by which to infer that
Brookshire had actual or constructive notice of the condition, Peterson is
unable to establish a material fact issue to preclude summary judgment.
                                       IV.
      Accordingly, we AFFIRM the district court’s grant of summary judgment
in favor of Defendants.
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