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opinion should not be published and is not precedent except under the limited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
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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
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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.
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Gray v. Shoney's Inc
Combined Opinion