Martin v. Kroger Company

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 20, 2001
• Docket: 01-30358
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________

No. 01-30358 (Summary Calendar) __________________________

ANNIE PEARL MARTIN, Plaintiff-Appellant,

versus

THE KROGER COMPANY, Defendant-Appellee.

___________________________________________________

Appeal from the United States District Court For the Western District of Louisiana (No. 00-CV-1475) ___________________________________________________ August 20, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Annie Pearl Martin appeals the district

court’s grant of summary judgment in favor of Defendant-Appellee

The Kroger Company (“Kroger”) in this personal-injury lawsuit

arising out of a slip-and-fall at a Kroger grocery store. As we

agree with the district court that Martin cannot prove an essential

element of her case —— that Kroger had constructive notice of the

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. hazardous condition prior to the accident —— we affirm.

I.

FACTS AND PROCEEDINGS

Mrs. Martin and her son, Earl Martin, were shopping at a

Kroger grocery store in Shreveport, Louisiana when Mrs. Martin

slipped and fell, suffering injuries to her hip and back. Mrs.

Martin, then 85 years old, alleges that she slipped and fell on

grapes on the floor of aisle two, which is two aisles from the

produce department where grapes are shelved. As a result of the

fall, Mrs. Martin brought this personal-injury lawsuit against

Kroger in Louisiana state court, seeking damages for pain and

suffering, physical disability, medical expenses, humiliation and

embarrassment, loss of household services, decreased quality of

life, and shortened life expectancy.

Kroger removed the case to federal district court and then

moved for summary judgment, contending that Mrs. Martin had failed

to produce any evidence, either circumstantial or direct, of an

essential element of her case, i.e., that Kroger had actual or

constructive notice of the grapes on the floor prior to her fall,

as required under Louisiana’s “storekeeper liability” statute.1

Mrs. Martin countered Kroger’s motion by pointing to the following

as circumstantial evidence of constructive notice on the part of

Kroger: (1) Robin Wright, a Kroger employee, had stocked grapes on

1 See La. Rev. Stat. Ann. 9:2800.6.

2 the morning of Mrs. Martin’s fall (despite the undisputed fact that

Wright’s route from the stock room to the produce department did

not include aisle two); (2) aisle two had not been inspected,

swept, or cleaned the morning of the fall; (3) Mrs. Martin did not

notice any grapes on the floor before she fell; (4) neither she nor

her son saw anyone in aisle two prior to the fall; (5) Mrs. Martin

did not have any grapes in her cart; and (6) there is no evidence

in the record that other customers purchased grapes that morning.

The district court granted Kroger’s motion for summary

judgment, reasoning that this evidence does not demonstrate a

material fact issue as to whether the grapes had been on the floor

for such a period of time that Kroger employees would have

discovered their existence through the exercise of reasonable care.

Under Louisiana law, the court concluded, constructive notice

cannot be inferred “simply from the presence of the grapes [on the

floor] at the time of the incident.” Mrs. Martin now appeals the

court’s grant of summary judgment.

II.

ANALYSIS

A. Standard of Review

We review a grant of summary judgment de novo, applying the

same standard as the district court.1 A motion for summary

1 Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

3 judgment is properly granted only if there is no genuine issue as

to any material fact and the moving party is entitled to judgment

as a matter of law.2 The moving party may discharge this burden by

demonstrating the absence of evidence to support one or more

essential elements of the non-moving party's claim, as “a complete

failure of proof concerning an essential element of the nonmoving

party's case necessarily renders all other facts immaterial.”3 In

deciding whether a fact issue has been created, we must view the

facts and the inferences to be drawn therefrom in the light most

favorable to the nonmoving party.4 Nonetheless, the non-moving

party must set forth specific facts demonstrating the existence of

a genuine issue for trial.5

B. Constructive Notice

Conceding that Kroger had no actual notice of the loose grapes

on the floor in aisle two, Mrs. Martin contends that she has

adduced sufficient evidence of a genuine issue of material fact

with respect to whether Kroger had constructive notice of the

hazardous condition. Kroger counters that Louisiana law requires

slip-and-fall plaintiffs who proceed on a constructive-notice

2 Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 3 Id. at 323. 4 See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999). 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

4 theory to show not only that the hazardous condition existed prior

to the accident, but also that the hazardous condition existed for

such a period of time that the merchant should have discovered it.

Therefore, Kroger deduces, Mrs. Martin’s failure to produce any

evidence of how long the grapes had been on the floor prior to the

accident is fatal to her case. Like the district court before us,

we agree.

This case is controlled by Louisiana’s “storekeeper liability”

statute, which sets forth the elements of a plaintiff’s burden of

proof in a premises liability case:

[T]he 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.6

The statute also defines “constructive notice” to mean that:

[t]he condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The 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

6 See La. Rev. Stat. Ann. 9:2800.6.

5 reasonable care should have known, of the condition.7

Recently, in White v. Wal-Mart Stores, Inc.,8 the Louisiana Supreme

Court clarified the nature of the plaintiff’s burden of proof with

respect to constructive notice, stating that Louisiana’s

“storekeeper liability” statute

does not allow for the inference of constructive notice[.] . . . The claimant must make a positive showing of the existence of the condition prior to the fall. A defendant merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall. . . . 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. This is not an impossible burden.9

Applying these principles to the facts of this case, we

conclude that Mrs. Martin has failed to adduce any evidence that

the hazardous condition existed “for such a period of time that it

would have been discovered if the merchant had exercised reasonable

care.”10 Mrs. Martin has admitted that she has “no idea” how the

grapes came to be on the floor of aisle two or how long they had

been there before she fell. Her theory of recovery appears to be

that the grapes must have fallen on the floor of aisle two early

7 Id. 8 699 So.2d 1081 (La. 1997). 9 Id. at 1084-85 (emphasis added). 10 See La. Rev. Stat. Ann. 9:2800.6.

6 that morning when Kroger employees restocked the produce shelves,

despite undisputed testimony that aisle two was not used that

morning —— or any other morning —— to move grapes from the rear of

the store to the produce section. The Louisiana Supreme Court has

made clear, however, that mere “speculation that the condition may

have existed for some period prior to [the] fall” does not

discharge the plaintiff’s burden of making a “positive showing”

that the condition existed for “some time” prior to the fall.11

In the closely analogous case of Audibert v. Delchamps, Inc.

and ABC Insurance Company,12 in which the plaintiff also claimed to

have slipped on grapes in a grocery store, the district court

explained in granting summary judgment to the defendant that

because “the plaintiff failed to meet the required showing of the

condition’s existence of some period of time, the statute’s

mandates are not fulfilled and it is not necessary to identify what

period of time would have been sufficient to constitute that

notice.”13 Likewise, in Rogers v. Wal-Mart Stores, Inc.,14 when the

plaintiff was unable to establish how long a liquid substance had

been on the floor prior to the accident, summary judgment was

11 See Babin v. Winn Dixie Louisiana, Inc., 764 So.2d 37, 40 (La. 2000). 12 No. Civ. A. 96-3156, 1997 WL 602193 (E.D. La. Sept. 30, 1997). 13 Id. at *1. 14 6 F. Supp.2d 560 (E.D. La. 1998).

7 granted to the defendant-merchant because “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.”15 In the instant case, just

as in Audibert and Rogers, the plaintiff, Mrs. Martin, has failed

to provide factual support sufficient under Louisiana law to

establish a credible possibility that the hazardous condition

existed long enough that it would have been discovered if the

merchant had exercised reasonable care.

Mrs. Martin places great weight on evidence that aisle two had

not been inspected, swept, or cleaned the morning of the fall. In

the absence of competent evidence of how long the grapes had been

on the floor, whether Kroger conducted sufficient inspections or

used reasonable care in maintaining the store is simply not

relevant to the issue of constructive notice, i.e., whether the

hazardous condition had existed long enough that it would have been

discovered if Kroger had exercised reasonable care. Certainly, had

Mrs. Martin produced any evidence of when the grapes first hit the

floor, evidence of temporally insufficient inspection would help

support both constructive notice and the third prong of her

statutory burden of proof —— whether Kroger failed to exercise

reasonable care.16 The Louisiana Supreme Court made clear in White,

15 Id. at 563-64. 16 See La. Rev. Stat. Ann. 9:2800.6.

8 however, that slip-and-fall plaintiffs cannot rely on such evidence

alone as proof of constructive notice.17

We acknowledge that since White, courts have struggled to

define the precise contours of the temporal requirement of

constructive notice under Louisiana law. Thus the jurisprudence in

this area is hardly a model of clarity. As a federal court sitting

in diversity, however, our task is not to endeavor to impose order

on conflicting state caselaw, but rather to apply state law as best

we can discern how the state’s supreme court would do so.18

Accordingly, we hold that, as Mrs. Martin has failed to adduce any

evidence to satisfy the temporal requirement for imputing

constructive notice to Kroger under Louisiana law, summary judgment

was providently granted.19

III.

CONCLUSION

For the reasons discussed above, the district court’s summary

judgment for Kroger is

AFFIRMED.

17 See White, 699 So.2d at 1085 (holding that allowing a plaintiff to carry her burden of proving constructive notice by showing the absence of written inspection procedures, written documentation of inspections, or lack of a consistent inspection policy impermissibly shifts the burden to the defendant to prove lack of constructive notice). 18 See First Nat. Bank of Durant v. Trans Terra Corp. Intern., 142 F.3d 802, 806 (5th Cir. 1998). 19 Mrs. Martin’s argument that Kroger “created” the hazardous condition fails for the same reason.