United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT March 29, 2005
Charles R. Fulbruge III
Clerk
No. 04-31014
Summary Calendar
VALERIE WILSON; DONALD RAY WILSON,
Plaintiffs-Appellants,
versus
WAL-MART STORES, INC.,
Defendant-Appellee.
United States District Court for the
Middle District of Louisiana
(3:03-CV-844-M3)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Valerie and Donald Ray Wilson appeal the summary judgment
awarded against their negligence and loss of consortium claims.
Valerie Wilson alleges that, on 26 October 2002, she slipped and
fell on a wet rug placed at the exit of a Wal-Mart store in Baton
Rouge, Louisiana. There were no witnesses. She returned to the
store the next day to inform the assistant manager of the alleged
accident, at which time she filled out an accident report.
*
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this opinion should not be published and is not precedent except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.
Wilson claims Wal-Mart was negligent in failing to keep the
rug dry and in failing to warn patrons of its dangerous condition.
She seeks damages for injuries sustained during the fall, and also
for mental anguish, emotional distress, and physical pain and
suffering. Her husband, Donald Ray Wilson, claims damages for loss
of consortium.
The parties consented to a trial by a magistrate judge. See
28 U.S.C. § 636(c). As noted by the magistrate judge , the
Wilsons’ complaint and brief in response to Wal-Mart’s summary
judgment motion “are notably sparse as to the details of [Wilson’s]
fall”. Wilson v. Wal-Mart Stores, Inc., No. 03-844-M3, at 2 (M.D.
La. 8 September 2004). When deposed, Wilson admitted: when she
got up after her fall, she could not tell the rug was wet; she did
not see standing water on the rug; she could not explain why the
rug was wet; the rug had not moved when she stepped on it prior to
the fall; and she did not see any track or buggy marks near, or on,
the rug.
A summary judgment is reviewed de novo, utilizing the same
standard as the district court. E.g., United States ex rel. Laird
v. Lockheed Martin Eng’g and Sci., 336 F.3d 346, 350-51 (5th Cir.
2003); see also FED. R. CIV. P. 56(c). Under Louisiana law, in
order to recover against a merchant-defendant, a plaintiff has the
burden of proving all of the following: the condition complained
of presented an unreasonable risk of harm to the claimant and was
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foreseeable; the merchant either created, or had constructive
notice of, the condition; and the merchant failed to exercise
reasonable care. LA. REV. STAT. ANN. § 2800.6(B). In order to show
“constructive notice”, the claimant must prove “the condition
existed for such a period of time that it would have been
discovered if the merchant had exercised reasonable care”. LA. REV.
STAT. ANN. § 2800.6(C)(1).
Essentially for the reasons stated in the magistrate judge’s
comprehensive and well-reasoned opinion, the Wilsons have failed to
establish a prima facie case for their claims under Louisiana law.
Restated, there are no genuine issues of material fact and Wal-Mart
is entitled to judgment as a matter of law.
AFFIRMED
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