IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 01-31309
Summary Calendar
____________________
EMILY POLLET
Plaintiff - Appellant
v.
SEARS ROEBUCK AND COMPANY
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
No. OO-CV-3654-T
_________________________________________________________________
July 18, 2002
Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
Plaintiff-Appellant Emily Pollet appeals the district
court’s summary judgment in favor of Defendant-Appellee Sears
Roebuck and Company on Pollet’s state law negligence claim
arising from her slip and fall while entering a Sears-owned
*
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that this opinion should not be published and is not precedent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.
department store on a rainy day. For the following reasons, we
AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
On November 20, 1999, Plaintiff-Appellant Emily Pollet
slipped and fell as she was entering a Sears Department Store
owned by Defendant-Appellee Sears Roebuck and Company (“Sears”).
It was raining that day. On November 20, 2000, Pollet filed suit
against Sears in Louisiana state court. Pollet alleged that
Sears’s negligence caused her injury because the defendant’s
store had knowledge of, and failed to correct, a hazardous
condition that caused Pollet’s fall. Pollet alleged that the
hazard was created by a puddle of rainwater on the entrance floor
of the store combined with a floor mat caught under one of the
doors.
On December 8, 2000, Sears removed the action to federal
district court, pursuant to 28 U.S.C. §§ 1332, 1441(a) (1994),2
2
Section 1441(a) authorizes removal, providing in
relevant part that “any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction, may be removed by the defendant ... to the district
court ....” 28 U.S.C. § 1441(a).
Section 1332 delineates the amount in controversy
requirement, providing in relevant part that the “district courts
shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of [$75,000],
exclusive of interest and costs, and is between- (1) citizens of
different States ....” See 28 U.S.C.A. § 1332 (West 1993 & Supp.
2001).
2
on the ground of diversity of citizenship.3 The petition for
removal included Sears’s assertion, in accordance with § 1332,
that, based on Pollet’s claimed injuries and damages, the amount
in controversy exceeds $75,000. On June 5, 2001, Sears filed a
motion for summary judgment, arguing that Sears had no knowledge
of any hazardous condition causing Pollet’s fall. Plaintiff
Pollet made no challenge to the district court’s jurisdiction to
decide the case at this time, or any time prior to appeal to this
court. On October 1, 2001, the district court granted summary
judgment in favor of Sears, dismissing Pollet’s claims with
prejudice.4 Pollet timely appeals that summary judgment.
II. DISCUSSION
A. The Amount in Controversy Exceeds $75,000
For the first time on appeal, Pollet asserts that the
district court lacked jurisdiction to grant summary judgment
because the amount put in controversy by her suit fails to exceed
$75,000. Pollet is correct that she may properly challenge
federal court jurisdiction at any time and that such right is not
3
Pollet is a citizen of Louisiana, and Sears is a citizen
of New York.
4
Pollet also originally named Sears’s insurer, Liberty
Mutual Insurance Company (“Liberty”), as a defendant to this
action. The district court noted in its October 1, 2001 order
granting summary judgment, however, that Pollet had not served
Liberty and that Liberty did not join Sears’s motion for summary
judgment. On October 4, 2001, when the district court entered
final judgment in favor of Sears, the court also dismissed
Pollet’s claims against Liberty, without prejudice.
3
waived on appeal by the failure of a party to raise the issue
before a trial court. See Simon v. Wal-Mart Stores, Inc., 193
F.3d 848, 850 (5th cir. 1999) (“[A] party may neither consent to
nor waive federal subject matter jurisdiction.”). Thus,
“[f]ederal courts may examine the basis of jurisdiction sua
sponte even on appeal.” Id. She is also correct that for a
federal court to have removal jurisdiction, the amount in
controversy must exceed $75,000 pursuant to 28 U.S.C. § 1332.
Pollet claims that a settlement demand made by her on March
15, 2001, including $2,301.78 in medical bills and $40,000 in
general damages, totaling $42,301.78, in addition to a settlement
demand for $49,801.78 submitted to the court on September 26,
2001, show that the amount in controversy does not exceed
$75,000. Both of those demands were made on December 8, 2000,
and thus post-removal. Sears is correct that in making our
determination as to the amount in controversy pursuant to § 1332,
the damages that we may consider include only those damages
claimed at the time of removal. Id. at 850 & n.10 (citing Allen
v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)).
Thus, we find that any post-removal action taken by Pollet,
including either of her post-removal settlement demands, is
immaterial to our determination whether her claims exceed $75,000
for the purpose of establishing federal diversity jurisdiction.
4
See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.
2000).5
Louisiana law prohibits a plaintiff such as Pollet from
specifying damages in any numerical dollar amount in her
5
Several of our sister circuits have considered
settlement offers or demands relevant to the jurisdictional
determination of the amount in controversy. See Cohn, D.V.M. v.
Petsmart, Inc., 281 F.3d 837, 840 & n.3 (9th Cir. 2002) (internal
quotation and citations omitted) (finding that while a settlement
offer itself “may not be determinative” it may “count[] for
something” and may be considered relevant if it appears “to
reflect a reasonable estimate of the plaintiff’s claim.”). The
Eleventh Circuit, in Burns v. Windsor Ins. Co., 31 F.3d 1092,
1097 (11th Cir. 1994), for example, confronted a settlement offer
made after removal but that offer merely corroborated an exact
dollar amount specified in the complaint that was less than the
federal jurisdictional minimum. The Eleventh Circuit found the
damages specification in the complaint controlling. See id. We
find the reasoning of those courts of appeals in favor of
consideration of settlement offers or demands in a determination
as to the jurisdictional amount in controversy unpersuasive in
the instant, distinguishable circumstance.
Moreover, as we have noted, a “plaintiff’s settlement offer
is ordinarily less than the damages the plaintiff expects to
receive if victorious at trial, because the offer is obviously
discounted by the risk of an outright loss at trial.” Kliebert
v. The Upjohn Co., 915 F.2d 142, 145 (5th Cir. 1990), vacated for
reh’g en banc, 923 F.2d 47 (5th Cir. 1991), appeal dism’d per
stipulation of settlement, 947 F.2d 736 (5th Cir. 1991) (because
the decision was vacated, it is no longer binding precedent but
nevertheless instructive on this point). Consequently, Pollet’s
settlement offers for approximately $42,000 and $50,000 do not
necessarily or even persuasively suggest that Pollet’s claims
amount to no more than $75,000 in controversy. We further note
that Pollet was free, but failed, to file a binding stipulation
to the court prior to removal indicating that she would seek no
more than $75,000 in damages. Such a stipulation timely filed
could have prevented removal. See, e.g., Chase v. Shop ‘N Save
Warehouse Foods, Inc., 110 F.3d 424, 430 (7th Cir. 1997)
(admonishing plaintiffs that want to prevent removal to file such
a binding stipulation with the court with their complaint because
“once a defendant has removed the case ... later filings [are]
irrelevant”) (internal quotations and citations omitted).
5
complaint. See LA. CODE CIV. PROC. ANN. art. 893(A) (West Supp.
2000). This court has established a procedure by which we
evaluate the jurisdictional amount in controversy based on a
complaint like Pollet’s that does not specify damages in dollars.
See, e.g., Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298
(5th Cir. 1999). “The defendant may make [its] showing in either
of two ways: (1) by demonstrating that it is facially apparent
that the claims are likely above $75,000, or (2) by setting forth
the facts in controversy ... that support a finding of the
requisite amount.” Id. (internal quotation and citation omitted)
(emphasis in original). The two tests are applied in order, and
only if the “facially apparent” test is not met, do we then
require “summary-judgment-type” evidence of the amount in
controversy. Allen, 63 F.3d at 1336 & n.16.
In cases such as this that are filed without specified
dollar damages, the defendant bears the burden of showing by a
preponderance of the evidence -- i.e., that it is more likely
than not -- that the amount in controversy exceeds $75,000. Id.
at 1135. We noted in De Aguilar v. Boeing Co., that a plaintiff
remains “master of [her] own claim” and thus that the defendant
must show that it is more than merely possible that a plaintiff
will recover in excess of the jurisdictional amount. 47 F.3d
1404, 1411-12 (5th Cir. 1995) (citations omitted). However, we
also noted in De Aguilar that defendants must be protected from
6
“plaintiffs who seek to manipulate their state pleadings to avoid
federal court while retaining the possibility of recovering
greater damages in state court following remand” and that this
court “‘adamantly’” seeks to prevent plaintiffs who manipulate
pleadings in such fashion “‘from being able to destroy the
jurisdictional choice that Congress intended to afford a
defendant in the removal statute.’” Id. at 1411 (quoting Boelens
v. Redman Homes, Inc., 759 F.2d 504, 507 (5th Cir. 1985)). We
thus cautioned against placing too onerous a burden on the
defendant when applying the preponderance of the evidence
standard to determine whether it is facially apparent from a
complaint that claimed damages exceed the federal jurisdictional
minimum for removal purposes. See id. at 1411-12. Pollet
asserts that Sears fails to satisfy its burden to produce
sufficient “summary-judgment-type evidence” to establish an
amount in controversy that exceeds the jurisdictional minimum.
However, because we find based on Pollet’s complaint that it is
facially apparent that the amount in controversy more likely than
not exceeded $75,000 at the time of removal, we need not inquire
into the sufficiency of any other summary-judgment-type evidence
brought forth by Sears.
Pollet’s claims at the time of removal indicate an amount in
controversy that exceeds $75,000. In her complaint originally
filed in Louisiana state court, Pollet claimed the following
injuries: “serious and painful injuries, including but not
7
limited to severe injuries to her face, left elbow, left hand,
and tail bone.” Pollet further claimed that she
suffered severe physical pain and keen mental anguish,
humiliation and embarrassment; and has required medical
care for her injuries and serious residuals thereof,
she has been disabled in her daily activities and has
been handicapped in other activities; she has incurred
medical expenses and loss [sic] sums of moneys that
otherwise she would have earned, and she continues to
have a diminished earnings capacity; she has sustained
residual and permanent disabilities and impairments;
she may require hospitalization and she will require
medical care in the future; these conditions may
continue, worsen, or become permanent.
Pollet’s complaint also prays for the following damages: “all
such damages which are reasonable ..., including damages for past
and future medical expenses, for past and future lost wages and
lost earnings capacity, for pain, suffering and mental anguish,
for disability and for the loss of life’s pleasures.” In Gebbia,
we found, in the context of an analogous slip and fall personal
injury case filed against a store under Louisiana law, that a
complaint alleging injuries and damages in a manner similar to
Pollet’s complaint facially indicated that the amount in
controversy exceeded $75,000 for the purpose of federal removal
jurisdiction. See 233 F.2d at 883-84 (denying remand of a slip
and fall personal injury case filed under Louisiana law and
removed to federal court).
The plaintiff in Gebbia, like Pollet, was prohibited by
Louisiana law from specifying damages in dollar amounts in her
complaint. The Gebbia plaintiff alleged personal injury under
8
Louisiana law against a store due to an alleged slip and fall on
“liquid, dirt and produce” in the store. 233 F.3d at 881. The
Gebbia plaintiff also alleged injuries analogous to those claimed
by Pollet, including injury to her “right wrist, left knee and
patella, and upper and lower back.” Id. The Gebbia plaintiff
further alleged damages analogous to those alleged by Pollet,
including damages for “medical expenses, physical pain and
suffering, mental anguish and suffering, loss of enjoyment of
life, loss of wages and earning capacity, and permanent
disability and disfigurement.” Id. The action in Gebbia was
removed to district court, and that court denied a motion to
remand, finding that the complaint at the time of removal alleged
injuries exceeding the $75,000 requirement. Id. at 882.
The Gebbia plaintiff subsequently made a stipulation “based
on medical evidence” that her claims “did not amount to $75,000.”
Id. The district court denied the plaintiff’s motion for
reconsideration of its jurisdictional judgment, which motion was
made in light of that stipulation. Id. A federal jury
subsequently found in favor of the defendant. Id.
On appeal to this court, the Gebbia plaintiff claimed that
the district court erred in denying her motion to remand. See
id. In affirming the district court’s decision not to remand, we
noted that “once the district court’s jurisdiction is
established, subsequent events that reduce the amount in
controversy to less than $75,000 generally do not divest the
9
court of diversity jurisdiction.” Id. at 883 (citing St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289-90 (1938);
Allen, 63 F.3d at 1336). We further held that it was “‘facially
apparent’” from the Gebbia plaintiff’s petition, which is
analogous to that of Pollet, “that the claimed damages exceeded
$75,000.” Id. at 883-84. We thus found that the district court
properly had diversity jurisdiction over the suit in Gebbia,
despite the post-removal stipulation of damages not exceeding
$75,000. Id. at 883-84.
In finding that federal jurisdiction existed in Gebbia, we
distinguished another of our decisions applying Louisiana law,
Simon v. Wal-Mart Stores, 193 F.3d at 851-52. In Simon, we found
that a district court erred by not remanding to state court a
personal injury action brought against a store because we found
that the allegations made in the complaint did not indicate an
amount in controversy in excess of $75,000. See id. The
plaintiff’s complaint in that case alleged injuries including
“‘but not limited to a severely injured shoulder, soft-tissue
injuries throughout her body, bruises, abrasions and other
injuries to be shown more fully at trial, and has incurred or
will incur medical expenses.’” Id. at 850. The Simon plaintiff
also “sought ‘reasonable’ damages for loss of consortium.” Id.
In rejecting federal jurisdiction in Simon, we reasoned that the
plaintiff in that case failed to allege any damages such as “for
loss of property, emergency transportation, hospital stays,
10
specific types of medical treatment, emotional distress,
functional impairments, or disability, which damages, if alleged,
would have supported a substantially larger monetary basis for
federal jurisdiction.” Id. at 851. In light of that finding in
Simon, we therefore concluded in Gebbia that, based on the
contrast between the type of allegations of injury and damages
made by the Gebbia plaintiff versus the seemingly less severe
allegations made by the Simon plaintiff, the Gebbia plaintiff’s
allegations did “support a substantially larger monetary basis to
confer removal jurisdiction than the allegations reviewed in
Simon ....” Gebbia, 233 F.3d at 883.
We find that Pollet’s allegations of injury and damages in
her complaint, by their nature and severity, more closely
resemble the allegations made by the plaintiff in Gebbia than the
allegations made by the plaintiff in Simon. And, as in Gebbia,
we disregard Pollet’s post-removal settlement demands in our
determination of the amount in controversy at the time of
removal. Thus, we conclude that it is facially apparent from
Pollet’s allegations of injury and damages made in her complaint
that the amount in controversy at the time of removal more likely
than not exceeded $75,000. We therefore find that the district
court had diversity jurisdiction over Pollet’s action pursuant to
28 U.S.C. §§ 1441(a) & 1332 when that court granted summary
judgment in favor of Sears.
11
B. Pollet’s Failure to Show Sears had Constructive
Knowledge of Any Hazard
We review a district court’s summary judgment de novo,
applying the same standards as the district court. Chaney v. New
Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir.
1999). Summary judgment is appropriate when there is no genuine
issue of material fact, and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(c). We view the
evidence in the light most favorable to the non-movant. Coleman
v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
The non-movant must, however, go beyond the pleadings and point
to specific facts in dispute indicating a genuine issue for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
If the non-movant fails to present facts sufficient to support an
essential element of her claim, summary judgment is appropriate.
See id. at 322-23.
Pollet argues that, even if the district court had
jurisdiction to decide summary judgment, the court nevertheless
erred by granting summary judgment in favor of Sears because the
court erred in finding that Pollet failed to establish as a
matter of law that Sears had constructive knowledge of a
hazardous condition that allegedly caused her fall. Louisiana
has a merchant premises liability statute, LA. REV. STAT. ANN.
§ 9:2800.6 (West 1997), which governs injury claims such as
Pollet’s that are made against merchants. For Pollet to succeed
12
on such a claim, § 9:2800.6 requires that she prove all of the
following statutory elements:
(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.
LA. REV. STAT. ANN. § 9:2800.6(B) (emphasis added).
In finding in favor of Sears, the district court found that
Pollet failed to point to material facts in dispute as to the
second statutory element: whether Sears had constructive notice
of the hazard that Pollet alleged was created by a puddle of
rainwater on the store entrance floor combined with a floor mat
caught in the door.6 In so doing, the district court relied on a
decision by the Louisiana Supreme Court, White v. Wal-mart
Stores, Inc., 97-0393 (La. 9/9/97), 699 So.2d 1081, 1082, 1084-
85. In White, the Louisiana Supreme Court clarified that, in
order for a plaintiff to satisfy the constructive notice element
of her claim required by § 9:2800.6, she must establish a
temporal component to constructive notice by making some showing
that the hazard at issue existed for some length of time such
6
Pollet does not allege that Sears had actual notice of
any hazard.
13
that Sears should have become aware of the hazard by exercising
due care. See id.
In White, the Louisiana Supreme Court reversed a judgment in
favor of an injured plaintiff who claimed, subject to § 9:2800.6,
that a merchant had constructive notice of a “clear liquid”
spilled on an aisle floor in the store in which the plaintiff
slipped and fell. Id. The White court based its ruling on its
finding that the plaintiff “produced no evidence as to how long
the spill had been on the floor.” Id. In so doing, the White
court explained,
[t]here is no bright line time period .... Whether the
period of time is sufficiently lengthy that a merchant
should have discovered the condition is necessarily a
fact question; however, there remains the prerequisite
showing of some time period. 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 exited for some time period prior
to the fall. This is not an impossible burden.
Id. Pollet argues that the district court incorrectly applied
White to her claim because that case does not address the same
circumstance presented by her claim involving a hazard resulting
from rainy weather. Since White, however, in a case involving
rainy weather that is analogous to the instant case, the
Louisiana Supreme Court confirmed that the requirement it
outlined in White -- that an injured plaintiff must make a
14
showing as to the temporal component of the constructive notice
element to satisfy § 9:2800.6 -- is to be applied equally to
plaintiffs’ claims against merchants that allege hazards
resulting from rainy weather. See Kennedy v. Wal-Mart Stores,
Inc., 98-1939 (La. 4/13/99), 733 So.2d 1188, 1189-91.
In Kennedy, a plaintiff shopping at a Wal-Mart store slipped
in what appeared to be a puddle of water near the cash registers
at the front of the store. Id. at 1189. At a bench trial, the
plaintiff testified that it was raining the evening that he
slipped and that, although the plaintiff did not see any puddle
on the floor prior to falling, his pants were wet after he rose
from the floor. See id. The Kennedy plaintiff further testified
that the area where he fell was within view of a customer service
podium so that the plaintiff thought one of the Wal-Mart
employees should have been able to see any puddle before the
plaintiff fell. See id. The store’s defense witness testified
as to routine store inspection procedures, including routine
sweeping, mopping, random spot checks, and once-hourly “‘zone
defense’” checks by all store employees. Id. A Louisiana
intermediate appellate court affirmed a trial court judgment in
favor of the plaintiff.
The Louisiana Supreme Court reversed. In so doing, that
court found that the Kennedy plaintiff’s evidence indicated
merely that the area where he fell was within view of a customer
service area and that it was raining the evening the plaintiff
15
fell. See id. at 1191. The court further found that the
“plaintiff presented absolutely no evidence as to the length of
time the puddle was on the floor before his accident.” Id. The
Louisiana Supreme Court thus concluded that, under White, the
“plaintiff did not carry his burden of proving Wal-Mart’s
constructive knowledge of the condition,” as required by
§ 9:2800.6. Id. (discussing White, 699 So.2d at 1084-85). The
Kennedy court then rendered judgment in favor of the defendant
store.7
7
In support of her argument, Pollet points to three
decisions by Louisiana intermediate appellate courts involving
slip and fall injury claims subject to § 9:2800.6 and that
alleged hazards resulting from rainy weather, particularly
Oalmann v. K-Mart Corp., 630 So.2d 911, 913 (La. Ct. App. 1994).
See also Hartford v. Wal-Mart Stores, Inc., 99-0753 (La. App. 1
Cir. 5/16/00), 765 So.2d 1081, 1084-87 (citing White to affirm a
verdict in favor of an injured plaintiff who claimed a merchant
had constructive notice of a rain puddle based on similar
evidence as that in Oalmann); Barton v. Wal-Mart Stores, Inc.,
97-801 (La. App. 3 Cir. 12/10/97), 704 So.2d 361, 363, 367
(same). In Oalmann, a case that indeed appears analogous to
Pollet’s, a Louisiana intermediate appellate court affirmed
judgment in favor of an injured plaintiff who slipped and fell
and claimed that a merchant had constructive notice of a puddle
of rain water on the store entrance floor. Id. That court found
that the trial court judgment was supported by evidence that the
store “did have knowledge of the weather conditions on the day of
the accident.” Id. The appellate court further found that,
despite that the “evidence does not clearly establish precisely
how long the floor was wet prior to [the] fall,” given “the
volume of business conducted at [such] a large” retailer, it was
“foreseeable that the floor near the entrance would become wet,
and thus slippery, in a relatively short period of time.” Id.
The Oalmann court concluded that “[i]t is the opinion of the
Court that the accumulation of water at the entrance existed for
such a time that [the store] should have discovered the danger.”
Id.
As another Louisiana intermediate appellate court pointed
out in Barton, 704 So.2d at 364, the Louisiana Supreme Court in
16
A review of the facts in the instant record indicates that
under Kennedy, and in accordance with White, the district court
correctly determined that Pollet fails to point to sufficient
facts in dispute that, if proven true at trial, could satisfy her
burden of establishing the constructive notice element of her
claim, as required by § 9:2800.6. Pollet testified in her
deposition to the following events. At the time she entered
Sears, it was raining. Prior to her fall, Pollet did not see any
puddle in the store entrance or notice that a mat was caught
under the door. Only upon rising from the floor did Pollet feel
that her pants were wet and observe some “clear liquid” on the
floor with a dark streak through it from where her own shoe had
skidded. Pollet did not observe any other customers slipping in
White expressly referred to Oalmann as an “example[] where the
claimant did carry the burden of showing actual or constructive
notice.” See White, 699 So.2d at 1085 & n.4 (emphasis added).
In White, therefore, the Louisiana Supreme Court appeared to
endorse Oalmann and to suggest that any case analogous to Oalmann
-– thus arguably including Pollet’s case -- would satisfy the
burden of adducing sufficient evidence of the temporal component
of constructive notice required by § 9:2800.6. In deciding
Kennedy, the Louisiana Supreme Court did not address its earlier
citation to Oalmann in footnote four of White, which endorsement
arguably contradicts the later holding in Kennedy.
Regardless, when a state’s highest appellate court has
weighed in on an issue, we are bound by that court’s holding in
determining state law, and we look to intermediate appellate
court decisions only in the absence of such a higher court
decision. See Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627
(5th Cir. 2000) (citation omitted). Because Kennedy appears
squarely on point with Pollet’s case, we heed the Louisiana
Supreme Court’s counsel in that decision in favor of a finding
that Pollet fails to present sufficient evidence in dispute that
Sears had constructive notice of any hazard.
17
the store entrance. Pollet admitted that she did not report the
accident until approximately fifteen to twenty minutes after it
occurred, at which time Sears investigated. In response to being
asked whether she thought that Sears knew about the puddle or the
mat caught in the door prior to her fall, Pollet responded, “I
don’t guess they knew. I don’t know. I mean, you know, it only
happened when I walked in the door.”
E.J. Bizette, an asset protection manager at Sears at the
time of Pollet’s fall submitted an affidavit stating that Sears
had no knowledge that any water or other type of hazard existed
at the door Pollet entered at the time she fell. Bizette
additionally testified in a deposition that Sears’s policy
mandates that safety warning cones be put out during inclement
weather when it begins to rain and that Sears associates must all
be on constant watch for hazardous puddles and the like during
such weather. Bizette also testified that despite such policy,
he could not recall for a fact that warning cones were put out
the night of Pollet’s accident or how long it had been since any
associates had inspected the area and found it free of puddles or
a mat caught under the door. David Levia, the Sears asset
protection agent who investigated the scene of Pollet’s accident
after she reported the incident, testified that he saw no puddle
on the floor and no mat out of place. Levia further testified
that he saw no warning cones or signs by the door that night.
18
The evidence in the record suggests dispute over whether
Sears followed its general procedures regarding hazards posed by
inclement weather at the time Pollet fell. Evidence conflicts as
to whether warning cones or signs were placed by entrance doors
after the store determined it was raining, and evidence is
unclear as to whether any actual inspections were undertaken to
spot possible puddles due to the rain. However, the resolution
of that dispute at trial -- even if in Pollet’s favor -- may be
relevant to the issue of due care but, according to the Louisiana
Supreme Court’s interpretation of § 9:2800.6 in White and
Kennedy, would not establish that any hazard created by a puddle
or mat caught in a door existed for some time prior to Pollet’s
fall. Moreover, under Kennedy and White, any evidence that it
was raining, that an area in which a fall took place was visible
to store personnel, and/or that Sears should have foreseen
hazards created by rain puddles or misplaced door mats in a high
volume store entrance because the merchant knew it was raining,
is not sufficient to support a finding that Sears had
constructive notice. See Kennedy, 733 So.2d at 1189 n.1, 1190-91
(citing White, 699 So.2d at 1084-85).
As at least one Louisiana appellate court recently noted,
when reluctantly affirming summary judgment in favor of a
merchant on a slip and fall claim analogous to Pollet’s claim,
“[i]t is apparent that the jurisprudence from the Louisiana
Supreme Court interpreting R.S. 9:2800.6 has made it almost
19
impossible for a Plaintiff to prove the temporal element to show
constructive notice of a hazardous condition in a slip and fall
case, as noted by ... Justice Calogero in his dissent in White.”
Kimble v. Winn-Dixie La., Inc., 01-514 (La. App. 5 Cir.
10/17/02), 800 So.2d 987, 990, 992 (noting Justice Calogero’s
observation in White that the effect of that majority opinion is
to require in every slip and fall case that a plaintiff produce
an eyewitness who can testify as to the exact time that a hazard
appeared) (citing White, 699 So.2d at 1087). Nevertheless, like
the intermediate appellate court in Kimble, we are bound in this
case by the Louisiana Supreme Court’s interpretation of
§ 9:2800.6. See Labiche v. Legal Sec. Life Ins. Co., 31 F.3d
350, 351 (5th Cir. 1994) (“In order to determine state law,
federal courts look to final decisions of the highest court of
the state.”) (internal quotation and citations omitted).
Therefore, we conclude in accordance with the Louisiana Supreme
Court’s decisions in White and Kennedy, that because Pollet fails
to point to evidence in dispute indicating that any alleged
hazard created by the puddle and the mat existed for some time
prior to her fall, Pollet fails as a matter of law to support her
claim that Sears had constructive notice of a hazardous condition
causing her to fall, as required by § 9:2800.6. Consequently,
the district court properly granted summary judgment in favor of
Sears on Pollet’s claim.
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V. CONCLUSION
For the foregoing reasons, the district court’s summary
judgment in favor of Sears on Pollet’s negligence claim is
AFFIRMED.
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