IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-31149
CHARLES AUDIBERT,
Plaintiff-Appellant,
versus
DELCHAMPS, INC., ET AL.,
Defendants,
DELCHAMPS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(96-CV-3156-D)
December 11, 1998
Before POLITZ, Chief Judge, EMILIO M. GARZA, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:*
Charles Audibert brought a claim against Delchamps, Inc. (“Delchamps”) for injuries he
allegedly sustained while on its premises. The district court awarded summary judgment in favor
of Delchamps and the instant appeal followed. Our review of the law, the record and the briefs before
this court leads us to AFFIRM the judgment of the district court.
I. Factual and Procedural 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR R. 47.5.4.
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On January 14, 1996, Charles Audibert entered the Delchamps store in Slidell, Louisiana and
proceeded to the produce department. Audibert’s walk through the store was aided by a cane. As
he reached the produce department, his cane came into contact with a grape on the floor causing him
to fall to the floor. During this incident, a Delchamps emplo was wit hin six to ten feet of
yee
Audibert stocking the area with other produce. Audibert sued the store for injuries he claims to have
sustained.
Inasmuch as the merits of this case are governed by state law, the district court stayed
resolution of the matter until the Louisiana Supreme Court adjudicated White v. Wal-Mart Stores,
Inc., 699 So.2d 1081 (La. 1997), a case in which similar issues were implicated. The district court
found the state supreme court’s interpretation of La. R.S. 9:2800.6 controlling and held that Audibert
did not make a positive showing that the condition, a grape on the floor, existed for any period of
time prior to the fall. Therefore, Audibert failed to show constructive notice, one of the mandatory
requirements for a prima facie case under the statute. Accordingly, the district court awarded
summary judgment in favor of Delchamps.
II. Discussion
We review the district court’s grant of summary judgment de novo. Guillory v. Domtar
Industries, Inc., 95 F.3d 1320, 1326 (5th Cir. 1996). This review requires the same analysis
employed by the district court. Id. (citing Turnage v. General Elec. Co. 953 F.2d 206, 212 (5th Cir.
1992). Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file along with the affidavits filed in support of the motion, if any,
indicate that there is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56.; see also, Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The essence of our review rests on “whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
The state supreme court’s decision in White is dispositive on all issues raised by the appellant;
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therefore, we affirm based on the reasoning of the district court. In sum, White requires Audibert to
show constructive notice which cannot be satisfied by merely showing that an employee was present
in the area at the time of the accident. Instead, Audibert must produce “positive evidence showing
that the damage-causing condition existed for some period of time, and that such time was sufficient
to place the merchant defendant on notice of its existence.” White at 1082; see also Norden v. Wal-
mart Stores, Inc., 716 So.2d 930, 932 (La.App. 4 Cir. 1998). Audibert has failed in this regard and
creates no genuine issue as to material facts.
Audibert marshals a number of lower court cases, cited in White, to argue that the district
court erred when it granted summary judgment. We disagree. Without further explication from the
state supreme court, none of the lower court cases cited in White warrants an alternative outcome.
See White, 699 So.2d at 1085 n.4(referencing Welch v. Winn Dixie of Louisiana, Inc, 655 So.2d 309,
320 (La. App. 1ct Cir. 1995); Oalmann v. K-Mart Corp., 630 So.2d 911 (La. App. 4th Cir. 1993);
Saucier v. Kugler, 628 So.2d 1309 (La. App. 3rd 1993); and Cobb v. Wal-Mart Stores, Inc., 624
So.2d 5 (La. App. 5th Cir. 1993). Moreover, unlike the plaintiffs in the cases referenced in White,
Audibert has failed to show that the condition existed for some period of time.
The dissent in Welch categorizes the manner in which certain claimants satisfied a claim for
construct ive notice. One plaintiff proved by her own testimony that the defendant’s employee
removed a wet floor sign before the floor was completely dry. Welch, 655 So.2d at 320 (citing
Treadway v. Shoney’s, Inc., 633 So.2d 841 (La. App. 4th Cir. 1994)). Here, Audibert can offer no
comparable proof on how the condition was created besides his bare assertion that the store
maintained a dirty produce section. In Oalmann, defendant’s own accident report acknowledging
that it had been raining on the day in question assisted plaintiff to show constructive notice. Here,
no similar admission exists nor does this case involve a constant condition requiring attention such
as the collection of puddles and slippery spots due to rain.
In Saucier, plaintiff showed that the store’s assistant manager knew, from the angle of the
produce shelf, that lemons often fell into the produce aisle, yet inspections of the store were
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conducted only once per hour. Here, there is no indication that Delchamps created the condition
resulting in grapes on the floor by inaction. Finally, Cobb is inapposite because Audibert offers no
facts relevant to the genesis of the grape on the floor.
As a final matter, Audibert attempts to bring his case within the purview of Norton v. Wal-
mart Stores, Inc. 707 So.2d 489, 492 (La. App. 3rd Cir. 1998). There, the state appeals court held,
“[i]t is not necessary to show the exact time period at which the wax paper [or hazardous condition]
was on the floor, but that this condition has previously existed and the defendant was aware of its
perpetual occurrence.” Norton may be distinguished from the case at bar. While Audibert highlights
the statement of an employee that there was “always” something on the produce floor, he has failed
to show that the condition should have been discovered by the defendant exercising reasonable care.
See Norton, 707 So.2d at 493. Audibert slipped on one grape some twenty four feet in front of the
the grape section. He has failed to present any information to contradict the Delchamps’ statement
that it inspected the floor about an hour prior to the accident. These uncontradicted facts do not
compare with the more relaxed standard in Norton under which employees testified that they were
instructed to clean up the wax paper whenever they became aware of its existence. Norton, 707
So.2d at 493. Accordingly, we decline to follow the state appellate court’s reasoning in Norton.
III. Conclusion
For these reasons, we AFFIRM the judgment of the district court.
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