rejecting as speculative plaintiff's contention that object upon which she slipped "had to be on the floor for ten to fifteen minutes because no one was present in the aisle with her."Summary of this case from Boles v. Wal-Mart Stores, Inc.
Civil Action No. 04-1584, Section "R" (1).
February 17, 2005
ORDER AND REASONS
Before the Court is defendant Dolgencorp, Inc.'s motion for summary judgment. Plaintiff Leighann Beard opposes the motion. For the following reasons, the Court GRANTS Dolgencorp's motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
In September of 2003, Beard was shopping in the Dollar General store in Hammond, Louisiana. Beard alleges that she slipped and fell on an object on the floor of the aisle that "felt like a marble." (Def.'s Mot. Summ. J., Ex. C, Answer to Interrog. 7). Beard was treated at an emergency room and later underwent surgery on her shoulder.
On May 18, 2004, Beard sued Dolgencorp in the Civil District Court for the Parish of Tangipahoa. On June 7, 2004, Dolgencorp removed the suit to this Court under 28 U.S.C. § 1441. Dolgencorp grounded jurisdiction on diversity of citizenship under 28 U.S.C. § 1332. Dolgencorp argues that it and Beard are diverse and the amount in controversy exceeds $75,000.
On December 16, 2004, Dolgencorp filed a motion for summary judgment. Plaintiff opposes the motion. On January 11, 2005, the Court ordered the parties to submit supplemental briefs addressing whether the minimum amount in controversy for federal jurisdiction existed at the time this case was filed. Both sides submitted briefs. As discussed below, the Court finds that Dolgencorp has met its burden to prove by a preponderance of the evidence that the amount in controversy for federal jurisdiction is met in this case. On February 4, 2005, the Court ordered the parties to submit any additional materials with respect to the motion for summary judgment within seven days. The Court received Beard's supplemental memorandum in opposition to the motion for summary judgment and is now prepared to rule on the merits of that motion.
A. Jurisdictional Amount in Controversy
A defendant may typically remove a civil action filed in state court if the federal court would have had original jurisdiction. See 28 U.S.C. § 1441(a). The removing party bears the burden of establishing the existence of federal jurisdiction. See Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). The jurisdictional facts supporting removal are examined as of the time of removal. See Gebbia v. Walmart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000); Asociacion Nacional de Pescadores a Pequena Escala O Artesanales de Colombia ("ANPAC") v. Dow Quimica de Colombia S.A., 988 F.2d 559, 565 (5th Cir. 1993), abrogated on other grounds by Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998), rev'd on other grounds, 526 U.S. 574 (1999); Bonck v. Marriott Hotels, Inc., 2002 WL 31890932, at *1 (E.D. La. 2002). The Court must remand the case to state court "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction[.]" 28 U.S.C. § 1447(c).
For the Court to have jurisdiction over this case under 28 U.S.C. § 1332, there must be diversity of citizenship between the parties, and the amount in controversy must exceed $75,000. 28 U.S.C. § 1332. Louisiana law prohibits a plaintiff from pleading a specific amount of monetary damages. See LA. CODE CIV. PROC. ANN. art. 893. When the plaintiff has alleged an indeterminate amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. Simon v. Wal-Mart Stores, 193 F.3d 848, 850 (5th Cir. 1999); see also De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995). A defendant makes this showing when it is facially apparent that the claims are likely to exceed $75,000. See Allen, 63 F.3d at 1335. In the alternative, the defendant can set forth the facts in controversy, preferably in the removal petition, but sometimes by affidavit or stipulation, that support a finding of the requisite amount. See id. The defendant must do more than point to a state law that might allow plaintiff to recover more than what is pleaded; the defendant must submit evidence that establishes that the actual amount in controversy exceeds $75,000. See De Aguilar, 47 F.3d at 1412. If the defendant meets its burden in either of these ways, the plaintiff must then show with legal certainty that her claims are really for less than $75,000. See id. at 1411-12.
Here, in its notice of removal and in its supplemental brief on the issues, Dolgencorp asserts that the amount in controversy exceeds $75,000. Dolgencorp attaches Beard's discovery responses, in which Beard states that her claim is valued in excess of $75,000. Beard does not dispute Dolgencorp's contention and essentially admits that the amount in controversy requirement is met. Because Dolgencorp has submitted evidence, in the form of an admission by Beard herself, that Beard's claims are for more than $75,000, the Court need not determine whether the amount in controversy is facially apparent. Rather, the Court finds that Dolgencorp has proved that Beard's claims more likely than not exceed $75,000. Because the parties are diverse and Dolgencorp has shown by a preponderance of the evidence that the amount in controversy exceeds $75,000, the Court finds that it has diversity jurisdiction over this matter under 28 U.S.C. § 1441(a) and 28 U.S.C. § 1332. The Court now turns to the merits of Dolgencorp's motion for summary judgment.
B. Motion for Summary Judgment
Generally, to establish a defendant's negligence under Louisiana law, a plaintiff must show "(1) the conduct in question was the cause-in-fact of the resulting harm; (2) defendant owed a duty of care to plaintiff; (3) the requisite duty was breached by the defendant; [and] (4) the risk of harm was within the scope of protection afforded by the duty breached." Peterson v. Gibraltar Savings Loan, 733 So.2d 1198, 1203-04 (La. 1999) (citing numerous cases). If a plaintiff was injured when she fell on a merchant's premises, however, she bears the additional burden of proving:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care.
LA.REV.STAT. ANN. § 9:2800.6(B). Dolgencorp contends that the Court must dismiss this suit because Beard cannot raise a genuine issue as to the second element, whether it either created or had actual or constructive notice of the condition that caused the damage.
First, Beard does not argue, and the Court does not find, that Beard has presented any evidence that Dolgencorp either created or had actual notice of the condition that caused the fall. See LA.REV.STAT. ANN. § 9:2800.6(B)(2); Cooper v. Wal-Mart Stores, Inc. 725 So.2d 51, 53 (La.Ct.App. 1998). Thus, the Court must determine whether Beard has produced evidence that Dolgencorp had constructive notice of the condition that caused Beard's injury.
The statute defines "constructive notice" to mean that "the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." LA.REV.STAT. ANN. § 9:2800.6(C)(1). The Louisiana Supreme Court has held that the statute requires the plaintiff to show that the condition existed for some period of time. White v. Wal-Mart Stores, Inc., 699 So.2d 1081, 1085 (La. 1997). In White, the court held that a plaintiff who failed to make a positive showing that the potentially harmful condition existed before she fell had failed to carry the burden of proof mandated by the statute. See id. at 1084 ("Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some period of time prior to the fall."). The temporal element of constructive notice must be proven by "positive evidence," either direct or circumstantial. See Crawford v. Ryan's Family Steak Houses, Inc., 741 So.2d 96, 101 (La.Ct.App. 1999).
The Louisiana Supreme Court further elaborated on the "constructive notice" requirement of the statute in Babin v. Winn-Dixie of Louisiana, Inc., 764 So.2d 37 (La. 2000). In Babin, the plaintiff allegedly fell on several boxes of toothpicks that had scattered onto an aisle of the grocery store. Id. In his deposition, the plaintiff testified that he did not know how the toothpicks got on the floor or how long they had been on the floor before he fell. Id. at 38. The court reasoned that plaintiff could not produce evidence to satisfy the temporal element of constructive notice and affirmed the trial court's order granting summary judgment. Id. at 40. This was true even though the plaintiff relied on the store's daily log record, the store's incident report and his own testimony that he did not see any store employees in the area to argue that the aisle where the accident occurred was not inspected for at least ten minutes before he fell. The court determined that none of that evidence was sufficient to satisfy the plaintiff's summary judgment burden on the constructive notice element. Id. at 40 n. 4. The court noted that mere speculation that "there was a possibility the boxes had been on the floor for some period of time, and that [defendant's] employee was negligent in failing to observe them," did not satisfy the constructive notice element of the claim. Id. at 40.
Here, Beard has presented even less evidence on the temporal element of constructive notice. Beard submits an affidavit in which she attests that was in the store for ten to fifteen minutes. (Pl.'s Supp. Mem. Opp. Def.'s Mot. Summ. J., Ex. 1, Affidavit of Leighann Beard at 2). Beard admits that she does not know how long the object she slipped on was on the floor or how it came to be there, except that she asserts it "had to be on the floor for at least ten to fifteen minutes because no one was in the aisle for at least that period of time prior to her fall." ( Id. at 2). She also states that the floor in the aisle where she slipped was dirty. ( Id. at 4). Under Louisiana case law, this evidence is not sufficient to raise a genuine issue of material fact as to the temporal element of constructive notice. See Babin, 764 So.2d at 40 n. 4. And without proof of the temporal element, the statute does not permit the "inference of constructive notice." Id. at 40; Allen v. Wal-Mart Stores, Inc., 850 So.2d 895, 898 (La.Ct.App. 2003).
First, Beard's contention that the object had to be on the floor for ten to fifteen minutes because no one was present in the aisle with her is speculative. Her contention simply assumes that the object was in the aisle the whole time she was there. This is a mere possibility. See Allen, 850 So.2d at 899 (affirming summary judgment in defendant's favor when plaintiff merely presented evidence that the spill that caused her fall was large, because the inference that the large size of the spill meant that it had been there for a period of time was "merely one possibility which is no more likely than any other potential scenario.") An object like a marble, which Beard allegedly fell on, could have rolled off a shelf, just before she slipped on it. Indeed, the object was obviously capable of moving quickly, since Beard says it slid out from under her and was never recovered. (Beard Aff. at 2). Further, Beard's evidence does not support the assertion that the object was on the floor for ten to fifteen minutes. This follows because Beard asserts that she was in the store for a total of ten to fifteen minutes. Beard had never been to this store before and had to find the aisle where the object she wished to purchase was located. ( Id. at 1). After Beard fell, she had a conversation with the store manager about the incident, they searched for the object she fell on, and then she went through the checkout line. ( Id. at 1-2). Thus, the actual amount of time that Beard could have been in and observed the lack of other persons in the aisle is significantly less than ten to fifteen minutes. Beard's suggestion that, because she did not see anyone in the aisle before she fell, the object must have been there for some period of time, does not satisfy her "stringent burden" to produce some positive evidence of the temporal element of constructive notice under LA.REV.STAT. ANN. § 9:2800.6. See id. at 898.
Louisiana courts have also rejected Beard's argument that evidence of a dirty floor is enough to create an inference that an object had been on the floor for a sufficient period of time to give the merchant constructive notice of its presence. Nuccio v. Robert, 761 So.2d 84, 888 (La.Ct.App. 2000); Cooper v. Wal-Mart Stores, Inc., 725 So.2d 51, 53-54 (La.Ct.App. 1999). In Cooper, for example, the plaintiff slipped and fell on a rock in defendant's store. 725 So.2d at 51-52. The plaintiff had no information about where the rock came from, how it got on the floor, or how long it was present, but she testified that the floor in the area where she fell was "really dirty." Id. at 52. The court found that, despite plaintiff's evidence that the floor in the area was dirty and the accompanying rational inference that the floor had not been cleaned in some time, the plaintiff had nevertheless failed to present evidence that the defendant had constructive notice of the condition that actually caused the damage, namely the presence of the rock on the floor. Id. at 53-54. Because "nothing in the record establishes how long the rock had been on the floor," the plaintiff failed to meet her burden of presenting "positive evidence showing that the damage-causing condition existed for some period of time, and that such time was sufficient to place the merchant defendant on notice of its existence." Id. at 53 (citing White, 699 So.2d at 1082).
Beard has likewise failed to present evidence to raise a genuine issue as to whether Dolgencorp had constructive notice of the condition that caused her injury. Like the plaintiff in Cooper, Beard admits that she has no information about how the object got on the floor, or how long it was there. ( See Def.'s Mot. Summ. J., Ex. C, Answers to Interr. 7 and 8). Also like the plaintiff in Cooper, Beard merely asserts that the floor was dirty in the area where she fell. This assertion is not sufficient to raise a genuine issue of fact as to whether the damage-causing condition, the object on which Beard slipped, existed for some period of time. See also Nuccio, 761 So.2d at 87-88 (finding that when plaintiff slipped and fell on a piece of ice and/or water, affidavits stating that the floor was dirty and that people were carrying food and drinks across it were not sufficient to raise a genuine issue on the crucial question of notice).
Beard relies on cases such as Bassett v. Toys "R" Us Delaware, Inc., 836 So.2d 465 (La.Ct.App. 2002), and Davenport v. Albertson's Inc., 774 So.2d 340 (La.Ct.App. 2000), for the proposition that a plaintiff may prove the temporal element of constructive notice by circumstantial evidence. Although the Court agrees with Beard's proposition, Beard does not present evidence of the kind that the courts found to be sufficient in Bassett and Davenport. In Bassett, for example, the plaintiff slipped on a puddle of water just inside the defendant's store. See 836 So.2d at 468. The court found that, because the store manager testified that she knew it was raining, that it was one of the busiest shopping days of the year, and that rain water would thus be tracked into the store to create a hazardous condition, the plaintiff had provided a reasonable factual basis for the jury's conclusion that the condition existed for such a period of time as to put the defendant on constructive notice. See id. at 470. In Davenport, the plaintiff slipped and fell on a toy truck on the floor of the toy aisle of defendant's store. 774 So.2d at 342. The court reversed the trial court's grant of summary judgment in favor of the defendant because the plaintiff presented photographs of toys laying in the aisle and affidavits of witnesses who had "seen toys and other objects on the toy aisle since the date of plaintiff's accident, on the same day of the week, and at the approximate time of his fall." Id. at 344. The court determined that a reasonable factfinder could find, based on this circumstantial evidence, that the toy truck was on the floor for some period of time before the plaintiff fell. Id. Basset and Davenport simply do not help Beard.
Beard has failed to produce factual support sufficient to establish a genuine issue as to whether the object she slipped on was on the floor for some period of time, an essential element of her claim under LA.REV.STAT. ANN. § 9:2800.6(B). Accordingly, the Court grants summary judgment in favor of Dolgencorp.
For the foregoing reasons, Dolgencorp's motion for summary judgment is GRANTED.