UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31042
Summary Calendar
NICOLE TRACY HARRELL,
Plaintiff-Appellant,
versus
WAL-MART STORES EAST, INC.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
(00-CV-916-M-1)
_________________________________________________________________
February 28, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges:
PER CURIAM:*
Nicole Tracy Harrell, who filed this negligence action arising
out of her fall in a Wal-Mart store, contests the summary judgment
granted Wal-Mart Stores East, Inc., including the denial of her
additional discovery request.
The denial of additional discovery for purposes of opposing
summary judgment, requested under Rule 56(f) of the Federal Rules
of Civil Procedure, is reviewed for abuse of discretion. E.g.,
Beattie v. Madison County Sch. Dist., 254 F.3d 595, 606 (5th Cir.
*
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this opinion should not be published and is not precedent except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.
2001); Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518,
534 (5th Cir. 1999). As reflected in the district court’s opinion
concerning why, pursuant to Rule 56(f), additional discovery was
denied, the denial was not an abuse of its discretion. Harrell v.
Wal-Mart Stores East, Inc., No. 00-916-8-1, at 5-7 (M.D. La. 20
July 2001) (Harrell-USDC).
A summary judgment is reviewed de novo, applying the identical
standard used by the district court. E.g., Stewart v. Murphy, 174
F.3d 530, 533 (5th Cir.), cert. denied, 528 U.S. 906 (1999). Such
judgment should be granted if “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law”. FED. R. CIV. P. 56(c). “We view the pleadings
and summary judgment evidence in the light most favorable to the
nonmovant.” Stewart, 174 F.3d at 533.
For this negligence action under Louisiana law, Harrell must
prove, inter alia, that: her fall was due to a condition that
“presented an unreasonable risk of harm to [her] and that risk of
harm was reasonably foreseeable”; and Wal-Mart “either created or
had actual or constructive notice of the condition which caused the
damage, prior to the occurrence”. LA. REV. STAT. ANN. §
9:2800.6(B)(2). For constructive notice, Harrell must prove “the
condition existed for such a period of time that it would have been
2
discovered if the merchant had exercised reasonable care”. Id. at
§ 9:2800.6(C)(1).
For essentially the reasons stated in the district court’s
thorough and well-reasoned opinion, Harrell-USDC, at 7-10, we hold:
there is no material fact issue on whether a condition existed
presenting an unreasonable risk of harm or whether Wal-Mart either
created or had actual or constructive knowledge of any such
condition; and Wal-Mart is entitled to a judgment as a matter of
law.
AFFIRMED
3