Gray v. Shoney's Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 6, 1999
• Docket: 98-30598
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-30598

PAUL GRAY;

Plaintiff-Appellant,

v.

SHONEY’S INCORPORATED; AND, UNIDENTIFIED PARTY;

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana (96-CV-3535-E)

August 4, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

On a rainy April morning in Chalmette, Louisiana, Paul

Gray went to a Shoney’s restaurant for breakfast. Due to the rain,

Shoney’s had placed “Wet Floor” signs and a yellow cone at the

entrance and in the foyer of the restaurant. After being seated,

Gray went to the restroom. The restroom was located in a hallway

just off the foyer. After leaving the restroom and while still in

the short hallway, Gray slipped on a puddle of water and sustained

an injury.

To recover for this injury, Gray filed suit in Louisiana

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. state court. Shoney’s, Inc. (“Shoney’s”), removed the action to

the Eastern District of Louisiana based on diversity of

citizenship. A discovery deadline of January 4, 1998, was set by

the district court. After the deadline for discovery lapsed,

Shoney’s moved for summary judgment. Oral argument for the motion

was continued on two occasions and some discovery was conducted

following the January 4 deadline. After several rounds of

briefing, the district court entered summary judgment in favor of

Shoney’s. The district court found that Gray had failed to produce

sufficient evidence under La. Rev. Stat. § 9:2800.6 to prove that

Shoney’s had constructive notice of the wet spot in the restroom

hallway. Gray moved for reconsideration claiming that the rainy

day and the presence of “Wet Floor” signs in the foyer off the

hallway were sufficient to impute actual knowledge of the dangerous

condition to Shoney’s. The district court rejected this argument

and again entered judgment in favor of Shoney’s. Arguing that

additional discovery is required and citing alleged disputed issues

of material fact, Gray appeals the district court’s ruling.

Reviewing the district court’s decision de novo and

viewing all the evidence in Gray’s favor, this court affirms. See

Urbano v. Continental Airlines, Inc., 138 F.3d 204, 205 (5th Cir.),

cert. denied, --- U.S. ---, 119 S. Ct. 509 (1998). Gray presented

no evidence tending to establish that Shoney’s had actual or

constructive notice of the presence of water in the restroom

hallway. Without such evidence, Gray could not prevail on his

claim under La. Rev. Stat. § 9:2800.6. The mere presence of

2 warning signs in the entryway was not sufficient circumstantial

evidence for a jury to find actual knowledge of water in the

restroom hallway. Lacking such evidentiary support, the district

court properly dismissed Gray’s claims. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514 (1986).

Louisiana cases similar to Gray’s support the district

court’s conclusion. See, e.g., Kennedy v. Wal-Mart Stores, Inc.,

No. 98-C-1939, 1999 WL 213027, at *1-*3, --- So. 2d ---, --- (La.

Apr. 13, 1999) (reversing trial judgment in plaintiff’s favor based

on insufficient evidence to support finding of constructive or

actual notice, though area where customer fell on rainy day was in

view of customer service podium); Alexander v. Wal-Mart Stores,

Inc., 707 So. 2d 1292, 1293-95 (La. Ct. App. 1998) (employee

“greeter” standing in entryway in rainy weather and intermittently

dry-mopping area insufficient to infer actual or, absent time

evidence, constructive notice of dangerous condition); see also,

e.g., White v. Wal-Mart Stores, Inc., 699 So. 2d 1081, 1084-85 (La.

1997) (discussing plaintiff’s burden of proof on constructive

notice under La. Rev. Stat. § 9:2800.6). Barton v. Wal-Mart

Stores, Inc., 704 So. 2d 361, 363-67 (La. Ct. App. 1997), is

inapposite. Absent specific evidence -- versus speculation and

mere allegations -- regarding the proximity of a known area where

water is pooling to an area in another part of an establishment

where an accident occurs, a plaintiff cannot impute actual

knowledge of a dangerous condition to a merchant. Thus, the

plaintiff’s burden reverts to constructive notice, a showing which

3 Gray tacitly admits cannot be made based on his lack of time

evidence. See White, 699 So. 2d at 1084-85.

Gray waived his argument that the district court allowed

insufficient time for discovery before granting summary judgment.

Only once did Gray move for a continuance in order to conduct

additional discovery. The district court, however, granted two

motions for continuance. Following these continuances, the parties

filed supplemental briefing regarding Shoney’s motion for summary

judgment. At no point during supplemental briefing did Gray

request a continuance for additional discovery. Likewise, in his

motion for reconsideration, Gray did not argue that summary

judgment was improvidently granted based on the need for further

discovery. Because he did not request additional discovery in the

district court, Gray waived the asserted ground of error. See

Potter v. Delta Air Lines, Inc., 98 F.3d 881, 887 (5th Cir. 1996),

overruled on other grounds El Al Israel Airlines, Ltd. v. Tsui Yuan

Tseng, --- U.S. —–-, 119 S. Ct. 662 (1999).

AFFIRMED.