IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 15, 2007
No. 07-30579 Charles R. Fulbruge III
Summary Calendar Clerk
ELLODIE M BOYD
Plaintiff - Appellant
v.
WAL-MART STORES INC
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-3176
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Ellodie M. Boyd sued Wal-Mart after she slipped and fell in one of its
stores. Wal-Mart filed for summary judgment, which the district court granted.
For the reasons that follow, we affirm.
1. After shopping in Wal-Mart, Boyd was leaving the store with her
daughter when she slipped and fell in a puddle of clear liquid that
had accumulated somewhere between the customer-service area of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30579
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the store and the front exit. As a result of her fall, Boyd badly
injured her right knee.
Boyd filed suit in Louisiana state court, alleging that Wal-
Mart’s negligence had caused her injury. Wal-Mart removed the
case to federal court and filed for summary judgment. The district
court granted the motion and Boyd appealed.
2. We review grants of summary judgment applying the same legal
standard as the district court.1 As the Supreme Court has
explained, summary judgment is proper when the non-moving party
cannot “make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will
bear the burden of proof at trial.”2 In such situations, the moving
party is entitled to judgment as a matter of law.3
3. Here, Boyd filed suit under Louisiana law, which places the burden
on plaintiffs in slip-and-fall cases to prove, among other things, that
“[t]he merchant either created or had actual or constructive notice
of the condition” that caused the fall.4
In an attempt to meet her burden, Boyd argues that Wal-Mart
had constructive notice of the liquid on its floor. To prove that Wal-
Mart had such notice, Boyd must show that the liquid was on the
floor “for such a period of time that it would have been discovered if
1
Machinchick v. PB Power, Inc., 398 F.3d 345, 349 (5th Cir. 2005).
2
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548, 2552 (1986).
3
Id. (citing FED. R. CIV. PROC. 56(c)).
4
LA. REV. STAT. ANN. § 9:2800.6(B)(2) (2007).
2
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[Wal-Mart] had exercised reasonable care.”5 In White v. Wal-Mart
Stores, Inc., the Louisiana Supreme Court explained that because
the constructive-notice requirement includes a temporal
element—“for such a period of time”—the plaintiff carries a burden
beyond showing that the merchant acted unreasonably:
A claimant who simply shows that the condition
existed, without an additional showing that the
condition existed for some time before the fall has
not carried the burden of proving constructive notice
. . . . 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.6
Boyd has not presented any evidence concerning the length of
time the liquid was on the floor. Boyd instead argues that because
Wal-Mart has no record of the last time it checked the floors, the
liquid could have been there for hours. But providing evidence that
the liquid was on the floor “for some time period prior to the fall” is
Boyd’s burden, not Wal-Mart’s. Because Boyd did not meet that
burden, the district court properly granted Wal-Mart summary
judgment.
AFFIRMED.
5
See id. § 9:2800.6(C)(1).
6
699 So. 2d 1081, 1084–85 (La. 1997); see also O’Brien v. Wal-Mart Stores Inc., 720 So.
2d 1263, 1266–67 (La. Ct. App. 1998) (holding that the plaintiff had failed to produce sufficient
evidence to establish constructive notice because the plaintiff “did not present any evidence to
establish that the oil was on the floor for any length of time”).
3