United States Court of Appeals
Fifth Circuit
F I L E D
In the July 9, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 06-30819
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SUE L. BAGLEY,
Plaintiff-Appellant,
VERSUS
ALBERTSONS, INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 5:05-CV-2050
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Before SMITH, BENAVIDES, and DENNIS, granted summary judgment for Albertson’s.
Circuit Judges. Bagley appeals, and we reverse and remand.
JERRY E. SMITH, Circuit Judge: I.
Bagley slipped and fell on a liquid substance
Sue Bagley slipped and fell in a puddle in spilled in an Albertson’s aisle.1 No other
the aisle of a store operated by Albertson’s,
Inc. (“Albertson’s”), injuring her back and hip.
She sued, alleging the store either created the 1
The evidence and inferences from the sum-
puddle or had constructive notice of it before
mary judgment record must be viewed in the light
her fall. After removal, the district court (continued...)
shoppers were in the aisle when she fell, and plaintiff must demonstrate that the “merchant
several minutes elapsed before she could either created or had actual or constructive no-
contact anyone for help. A fireman was the tice of the condition which caused the damage,
first person to come to her aid; he also fell prior to the occurrence.” LA. REV. STAT.
while approaching her and later observed a ANN. § 9:2800.6(B)(2). “‘Constructive no-
trail of the substance down the aisle and into tice’ means the claimant has proven that the
an adjacent aisle. Several employees began condition existed for such a period of time that
sliding halfway down the aisle when they later it would have been discovered if the merchant
approached to assist. Although the employees had exercised reasonable care.” Id. § 9:2800.-
opined that the liquid might have been meat 6(C)(1). The statute “places a heavy burden
blood leaking from a shopping cart, nobody of proof on plaintiffs” in slip and fall cases.
could positively identify the substance. Jones v. Brookshire Grocery Co., 847 So.2d
43, 48 (La. App. 2d Cir. 2003). “Mere specu-
Bagleysued in state court, seeking recovery lation or suggestion” is not sufficient to meet
for injuries to her back and hips resulting from this burden, and courts will not infer construc-
the fall. Albertson’s removed and sought sum- tive notice for the purposes of summary judg-
mary judgment, which the district court grant- ment where the plaintiff’s allegations are “no
ed, finding that Bagley could not provide more likely than any other potential scenario.”
evidence to demonstrate that the store created Allen v. Wal-Mart Stores, Inc., 850 So .2d
the puddle or had constructive notice. 895, 898-99 (La. App. 2d Cir. 2003).
II. III.
Summary judgment is proper “if the plead- Bagley alleges that Albertson’s created the
ings, depositions, answers to interrogatories, spill by either improperly wrapping meat prod-
and admissions on file, together with the affi- ucts, or by improperly inspecting wrapped
davits, if any, show that there is no genuine is- meat for rips. Bagley supports her allegations
sue as to any material fact and that the moving with the deposition testimony of two store em-
party is entitled to a judgment as a matter of ployees who were present after her fall and
law.” FED. R. CIV. P. 56(c). Disputes about opined that the spill was probably from a leaky
material facts are genuine “if the evidence is meat package. Given that the employees are
such that a reasonable jury could return a ver- familiar with the appearance of meat effluence,
dict for the nonmoving party.” Anderson v. their testimony is competent summary judg-
Liberty Lobby, Inc., 477 U.S. 242, 248 ment evidence that the liquid substance was
(1986). We review a summary judgment de meat blood.
novo. Skotak v. Tenneco Resins, Inc., 953
F.2d 909, 912 (5th Cir. 1992). Bagley has presented no evidence as to how
the liquid reached the floor. She attempts to
As an element of a Louisiana delictual ac- rely on the testimony of a single employee who
tion for failure to maintain safe premises, a stated, “I was thinking it was like chicken
blood or meat blood that just a customer
stopped for a second and it was dripping out
1
(...continued) of the bottom of their buggy.” This statement
most favorable to the nonmovant. Minter v. Great is speculative at best, and even if it were suffi-
Am. Ins. Co., 423 F.3d 460, 465 (5th Cir. 2005).
2
cient evidence for a jury to find that the liquid declined “in the absence of additional evidence
came from a cart, it is yet another step to show concerning the origin and mechanics of the
Albertson’s responsibility for the leak. No rea- spill to infer a correlation between the size of
sonable jury could find that Bagley has pre- the spill and the length of time the spill existed
sented sufficient evidence to demonstrate that prior to the incident.” Id. at 122. By compari-
Albertson’s created a leak. son, in Broussard v. Wal-Mart Stores, Inc.,
741 So. 2d 65 (La. App. 3d Cir.), writ denied,
Alternatively, Bagley alleges that Albert- 742 So. 2d 562 (La. 1999), the court found
son’s had constructive notice of the puddle on sufficient facts to present constructive notice
the floor. Whether the period of time that a to the jury where a spill was “elongated, not
condition existed was sufficient to provide a uniform, and covers approximately three to
merchant with constructive notice is a fact four tiles, suggesting that it had spread over a
question that must be submitted to the jury. period of time.” Id. at 69. The present case is
Allen, 850 So. 2d at 898. “[H]owever, there more analogous to Broussard, because the size
remains the prerequisite showing of some time and nature of the spill demonstrate that some
period.” Id. There is no bright line time peri- period of time passed before Bagley’s acci-
od, but “some positive evidence is required of dent. She has presented sufficient evidence to
how long the condition existed prior to the survive summary judgment on the issue of
fall.” Robinson v. Brookshires #26, 769 So. constructive notice.
2d 639, 642 (La. App. 2d Cir. 2000).
The judgment is REVERSED, and this mat-
The district court relied on the fact that ter is REMANDED for further proceedings.
Bagley could neither testify as to how long the
puddle had been on the floor nor demonstrate
the origin or nature of the liquid to imply a
necessary passage of time. See Howard v.
Family Dollar Store No. 5006, 914 So. 2d
118, 122 (La. App. 2d Cir. 2005). Bagley did,
however, present testimony from the fireman
that the spill covered a significant area extend-
ing through the aisle and into an adjoining
back aisle. That testimony supports a reason-
able inference that the liquid leaked from a
customer’s cart. Bagley testified that when
she entered the aisle and slipped, the aisle was
empty. This supports a reasonable inference
that the other cart had sufficient time to clear
the aisle, implying the passage of “some period
of time.”
In Howard, the plaintiff slipped in a “puddle
of blue liquid” that had spilled next to a “box
of cleaning supplies.” Id. at 119. The court
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