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this opinion should not be published and is not precedent except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.
9