United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005
_______________________ Charles R. Fulbruge III
Clerk
Summary Calendar
No. 04-31238
_______________________
MAIRE LEJEUNE CORMIER,
Plaintiff-Appellant,
versus
DOLGENCORP, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana,
Lake Charles Division
2:04-CV-0901
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Marie Lejeune Cormier (“Cormier”)
appeals the district court’s award of summary judgment to
Defendant-Appellee Dolgencorp, Inc. (“Dolgencorp”) for her personal
injury suit arising from her fall inside one of Dolgencorp’s Dollar
General stores. We review the district court’s summary judgment
decision de novo, using the same standard as that court. Royal
Ins. Co. of America v. Hartford Underwriters Ins. Co., 391 F.3d
639, 641 (5th Cir. 2004).
*
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opinion should not be published and is not precedent except under the limited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.
On May 16, 2003, Cormier entered the Dollar General in
Jennings, Louisiana. As she entered the store, she tripped over
the entrance rug and fell, severely breaking her leg. It was a
sunny day outside, and Cormier does not assert that her fall was
caused by anything other than the mat, which she contends had
ridges sufficient to catch her heel and force her to trip. Cormier
filed suit in Louisiana state court against Dolgencorp, which owns
the store, alleging negligence against Dolgencorp for breaching its
duty of care by having a defective mat in the entranceway.
Dolgencorp removed the suit to federal court.
To prevail on such a claim, an injured plaintiff must
prove that (1) the object was in the defendant’s custody; (2) the
thing contained a vice or defect which presented an unreasonable
risk of harm to others; (3) the defective condition caused the
damage; and (4) the defendant knew or should have known of the
defect. La. Civ. Code arts. 2317; 2317.1. As the district court
properly decided, Cormier failed to submit sufficient evidence on
multiple elements of this prima facie case to survive summary
judgment.
The parties agree that Dolgencorp had custody of the mat
in question. However, Cormier failed to obtain any evidence of a
defect in the mat. Cormier admitted that the mat was dry at the
time of the incident, that it was not extending outside the doorway
or curled up, and that the mat contained no liquid or other foreign
substances that might constitute a defect. In district court,
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Cormier claimed that Dolgencorp had intentionally destroyed the mat
in question to keep her from demonstrating the mat’s inherent
flaws; however, Cormier acquired a similar mat during summary
judgment proceedings and Dolgencorp expressly stipulated that the
mat submitted by Cormier was like the mat in the store on the day
in question. This mat contained no defects, and Cormier failed to
submit any evidence or testimony beyond her conclusory allegations
that the mat contained defects. This failure is fatal to her
claim. See, e.g., White v. FCI USA, Inc., 319 F.3d 672, 677 (5th
Cir. 2003) (mere conclusory allegations are not competent summary
judgment evidence and thus cannot be used to defeat a motion for
summary judgment).
Even assuming arguendo that the mat was defective,
Cormier further failed to produce summary judgment evidence
sufficient to create a fact issue as to whether Dolgencorp
employees had knowledge of the defective condition. To preclude
summary judgment on this issue, a plaintiff must demonstrate that
employees knew or should have known of the defective condition.
See, e.g., Walters v. Kenner CiCi’s, 780 So. 2d 467, 469 (La. App.
2001) (holding plaintiff carried her burden by eliciting testimony
from the store manager that he had found screws missing from
similar chairs that caused the accident and plaintiff’s injuries);
Saulny v. Tricou House, L.L.C., 839 So. 2d 392, 394-95 (La. App.
2003) (affirming judgment for plaintiff who was injured by a
collapsing plastic chair where she produced evidence that the same
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type of chairs had repeatedly broken over a two year period).
Here, Cormier failed to produce any evidence that store employees
knew or should have known about the alleged defects in the mat:
She produced no documentation of previous accidents, nor did she
introduce any affidavit or deposition testimony of store employees
that they knew a defect existed, nor did she acquire any other
evidence that may have demonstrated constructive or actual
knowledge. This omission is also fatal to her claim.
Cormier’s final contention is that the mat used in the
store constituted an unreasonably dangerous condition. Cormier’s
sole support for this claim is Weaver v. Winn-Dixie of Louisiana,
Inc., 406 So. 2d 792 (La. App. 1981), in which the court held that
a merchant must “have a mat that lies flat so that a patron’s foot
will not catch under some rise in the mat, causing him or her to
fall.” Id. at 794. However, Cormier does not claim that her foot
was caught under the mat, but instead that the ridges on top of the
mat caught her tennis shoe and tripped her. Thus, Weaver is
inapposite and no Louisiana law supports Cormier’s contention that
the mat constituted an unreasonably dangerous condition.
The judgment of the district court is AFFIRMED.
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