United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 12, 2007
Charles R. Fulbruge III
Clerk
No. 06-31057
Summary Calendar
IRENE FRAISE
Plaintiff-Appellant,
versus
WAL-MART LOUISIANA LLC,
Defendant-Appellee.
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Appeal From the United States District Court
for the Eastern District of Louisiana
2:05-CV-4178
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
The plaintiff, Irene Fraise, sued the defendant for injuries
she incurred from slipping on vegetable matter in a Wal-Mart store
in Harvey, Louisiana. The plaintiff appeals the dismissal of her
claims below on summary judgment.
We review a grant of summary judgment de novo, applying the
same legal standards as the district court. Chacko v. Sabre, Inc.,
473 F.3d 604, 609 (5th Cir. 2006). Summary judgment is proper when
the evidence demonstrates that “there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
*
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this opinion should not be published and is not precedent except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.
No. 06-31057
-2-
a matter of law.” FED. R. CIV. P. 56(c). While the moving party
bears the burden of establishing that there are no genuine issues
of material fact, it may satisfy this burden by showing that “that
there is an absence of evidence to support the nonmoving party's
case” as to an issue where the nonmoving party bears the burden of
proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The plaintiff admits that she must show that Wal-Mart “either
created or had actual or constructive notice of the condition which
cause the damage, prior the occurrence....” LA. REV. STAT. ANN. §
9:2800.6(B). The plaintiff relies on appeal on the claim that Wal-
Mart “created” the condition that led to the fall, namely the
presence of vegetable matter on the floor. Plaintiff argues that
the affidavit of Carlos Fraise, a former employee of the Harvey
Wal-Mart, establishes that the only potential cause of vegetable
matter on the floor of the store’s meat department was a Wal-Mart
employee moving trash through that section of the store.
The evidence produced by the plaintiff was not sufficient to
survive summary judgment. Contrary to the assertions of the
plaintiff on appeal, Mr. Fraise’s affidavit does not claim that the
only potential source of the vegetable matter was a Wal-Mart
employee. Rather, he alleges that during his tenure as an employee,
several years prior to the accident, he never saw a customer drop
vegetable matter from their shopping cart. He speculates that the
most likely cause would be that the vegetable matter was dropped by
a Wal-Mart employee transporting trash. However, speculation alone
No. 06-31057
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“falls far short of the factual support required to establish that
plaintiff will be able to satisfy his evidentiary burden of proof
at trial.” Babin v. Winn-Dixie Louisiana, Inc., 764 So.2d 37, 40
(La. 2000). Moreover, the plaintiff has not appealed or contested
the district court’s ruling that Mr. Fraise’s lay opinion as to the
source of the vegetable matter would not be admissible at trial
under Federal Rule of Evidence 701. Because the plaintiff produced
no evidence that Wal-Mart created the condition causing the fall,
we AFFIRM the decision of the district court.