Case: 18-30112 Document: 00514542507 Page: 1 Date Filed: 07/05/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 18-30112 July 5, 2018
Summary Calendar Lyle W. Cayce
Clerk
MELANEE BRYANT,
Plaintiff - Appellant
v.
WAL-MART LOUISIANA, L.L.C.,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:16-CV-1450
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
The district court granted summary judgment to Wal-Mart Louisiana,
L.L.C. (“Wal-Mart”) on Melanee Bryant’s slip-and-fall claim. We AFFIRM.
The facts are simple. 1 Bryant and her friend Barbara Johnson shopped
at Wal-Mart for groceries. She and her friend went to the checkout counter.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
“This court reviews de novo a district court’s grant of summary judgment, applying
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the same standard as the district court.” Austin v. Kroger Tex., L.P., 864 F.3d 326, 328 (5th
Case: 18-30112 Document: 00514542507 Page: 2 Date Filed: 07/05/2018
No. 18-30112
Bryant checked out. Then, while waiting for Johnson to check out, Bryant
noticed a candy bar that she wanted to purchase in an adjacent area. As she
walked back to get it, she slipped in a clear puddle of liquid and was injured.
She sued Wal-Mart under Louisiana’s premises liability statute for merchants.
See LA. STAT. ANN. § 9:2800.6.
The district court correctly granted summary judgment because Bryant
failed to provide any evidence of a necessary element: that Wal-Mart either
caused the unsafe condition or had actual or constructive knowledge of it. Id.
§ 9:2800.6(B)(2). Bryant argues only that the store employees should have had
constructive notice. “To prove constructive notice, 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.” White v. Wal-Mart Stores, Inc., 699 So. 2d 1081, 1086 (La. 1997).
“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.” Id. at 1084–85.
Bryant failed to provide evidence that showed the “condition existed for
some time period” prior to the fall. She asserts that she checked out with her
groceries and argues (without citation to any evidence) that no one else was
near the area before her fall. So, she argues, the puddle must have existed
before she slipped in it. But this is insufficient under White. She must show
it existed for “some time period” that would create an issue of fact about
whether it existed “for such a period that the defendant merchant would have
discovered its existence through the exercise of ordinary care.” See Duncan v.
Cir. 2017) (citing Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001)).
We review all evidence in the light most favorable to Bryant, the non-moving party. See id.
at 328–29.
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No. 18-30112
Wal-Mart La., L.L.C., 863 F.3d 406, 410 (5th Cir. 2017) (affirming summary
judgment on similar facts). She failed to do so.
Bryant alternatively argues that the district court should have made
adverse inferences against Wal-Mart because Wal-Mart failed to preserve
videos of the store from that time period. A district court’s decision regarding
sanctions for spoliation is reviewed for an abuse of discretion. Guzman v.
Jones, 804 F.3d 707, 713 (5th Cir. 2015). “An adverse inference based on the
destruction of potential evidence is predicated on the ‘bad conduct’ of the
defendant.” King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003). That
generally requires evidence of “bad faith.” Id. The district court concluded
that Wal-Mart did not act in bad faith in deleting videos because (1) none of
the videos showed the relevant area where the fall occurred, and (2) Wal-Mart
deleted the videos showing other parts of the store pursuant to a standardized
retention policy. 2 We perceive no abuse of discretion in that determination.
AFFIRMED.
2 Bryant argues for the first time on appeal that Wal-Mart’s policy is unreasonable
and was instituted for the purpose of destroying evidence in litigation. She has presented no
record evidence supporting those accusations. Regardless, her argument is waived because
she has not presented any extraordinary circumstances for not raising the argument with
the district court. See State Indus. Prod. Corp. v. Beta Tech. Inc., 575 F.3d 450, 456 (5th Cir.
2009).
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