Filed: Apr. 17, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS April 17, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk 06-30943 Summary Calendar TENNA MARIE COURVILLE, Plaintiff-Appellant, v. TARGET CORPORATION OF MINNESOTA, Defendant-Appellee. Appeal from the United States District Court for the Western District of Louisiana, Lake Charles No. 2:05-cv-01495-PM-APW Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* Plaintiff-Appellant, Tenna Mar
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS April 17, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk 06-30943 Summary Calendar TENNA MARIE COURVILLE, Plaintiff-Appellant, v. TARGET CORPORATION OF MINNESOTA, Defendant-Appellee. Appeal from the United States District Court for the Western District of Louisiana, Lake Charles No. 2:05-cv-01495-PM-APW Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* Plaintiff-Appellant, Tenna Mari..
More
United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
April 17, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
06-30943
Summary Calendar
TENNA MARIE COURVILLE,
Plaintiff-Appellant,
v.
TARGET CORPORATION OF MINNESOTA,
Defendant-Appellee.
Appeal from the United States District Court for the
Western District of Louisiana, Lake Charles
No. 2:05-cv-01495-PM-APW
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant, Tenna Marie Courville, appeals the
district court’s grant of summary judgment in favor of Target in
this slip and fall case. Finding that Courville has raised a fact
issue, we VACATE and REMAND.
I. BACKGROUND
*
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this opinion should not be published and is not precedent except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.
On August 13, 2004, Courville was shopping with her daughter
at a Target Store in Lake Charles, Louisiana. After paying for her
purchases, Courville was putting the credit card and receipt in her
wallet and walking toward the exit when she slipped and fell.
After the fall, Courville noticed there was a puddle of clear
liquid on the floor approximately a foot long and a few inches
wide. The accident occurred in a high traffic area between the
snack bar and the checkout lines. Courville has alleged injuries
to her knee, which required surgery and physical therapy.
Courville brought a negligence action against Target in
Louisiana state court. Target removed the suit to federal district
court and moved for summary judgment, arguing that there was no
genuine issue of material fact with respect to whether Target
created or had actual or constructive notice of the liquid that
allegedly caused the incident. The district court agreed and
granted summary judgment in favor of Target. Courville appeals.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo, applying the same standards as the district court. E.g.,
Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir.
1996). Summary judgment is proper if the record reflects “that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c).
2
III. ANALYSIS
It is undisputed that the instant case is based on diversity
jurisdiction and governed by Louisiana law. The applicable
Louisiana statute sets forth the plaintiff’s burden of proof in a
claim against a merchant:
B. In a negligence claim brought against a merchant by a
person lawfully on the merchant’s premises for damages as
a result of an injury, death, or loss sustained because
of a fall due to a condition existing in or on a
merchant’s premises, the claimant shall have the burden
of proving, in addition to all other elements of his
cause of action, all of the following:
(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. In
determining reasonable care, the absence of a written or
verbal uniform cleanup or safety procedure is
insufficient, alone, to prove failure to exercise
reasonable care.
La.Rev.Stat. Ann. 9:2800.6B (1996).
The district court found that no genuine issue of material
fact existed regarding whether the merchant created or had notice
of the liquid hazard. § 9:2800.6B(2). Here, there is no
allegation that Target created or had actual notice of the hazard.
Instead, Courville argues that she has shown an issue of fact with
respect to whether Target had constructive notice. “‘Constructive
notice’ means the claimant has proven that the condition existed
for such a period of time that it would have been discovered if the
3
merchant had exercised reasonable care.” § 9:2800.6C(1).
In White v. Wal-Mart Stores, Inc., the Louisiana Supreme Court
held that a plaintiff has the burden of showing the existence of
the condition or hazard prior to the fall. 699 So. 2d 1081 (La.
1997) (interpreting § 9:2800.6). If a plaintiff fails to make such
a showing, “[t]he statute does not allow for the inference of
constructive notice.”
Id. at 1084. Accordingly, the dispositive
question in the instant case is whether Courville has raised a fact
issue regarding whether the liquid on the floor existed for a
period of time sufficient to give rise to constructive notice.
Simply demonstrating the existence of the hazard does not satisfy
the burden.
White, 699 So. 2d 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
time period prior to the fall.”
Id. at 1084-85. Whether the time
period is of sufficient length such that a merchant exercising
reasonable care would have discovered the hazard is a question of
fact.
Id. at 1084.
Courville has shown that there were Target employees in close
proximity to the puddle of liquid on the floor. However, “[t]he
presence of an employee of the merchant in the vicinity in which
the condition exists does not, alone, constitute constructive
notice, unless it is shown that the employee knew, or in the
exercise of reasonable care should have known, of the condition.”
4
§ 9:2800.6C(1). Additionally, Courville’s attorney deposed Phyllis
Granger, a Target cashier who was not a witness to the accident.
Relying on a photograph of the area of the store where the fall
occurred, Granger testified that a cashier would have been able to
see the liquid on the floor when a customer was using a credit card
to pay. As previously set forth, Courville paid for her
merchandise with a credit card. Thus, there is evidence to show
that a cashier could have seen the liquid on the floor. Cf. White,
699 So. 2d 1086 n.5 (noting that the plaintiff failed to introduce
evidence that an employee could have seen the spill on the floor).
Courville testified that there was one person in the checkout
line who was leaving as she approached. Courville and her daughter
had been shopping for more than an hour and had numerous items in
their shopping cart. She did not see the “spill” occur while
waiting in line. That is circumstantial evidence that the spill
existed at least immediately prior to Courville approaching the
checkout line.2 Further, it is undisputed that the accident
occurred in a high traffic area between the snack bar and the
checkout lines. Because the hazard was in a high traffic area, it
is arguable that only a very short period of time would be
necessary to discover the hazard. Cf. White, 699 So. 2d at 1085
(reasoning that “[w]hile the length of time may arguably diminish
2
Although Melissa Menard, a Target employee, testified she
did not see the liquid just prior to the incident, it is undisputed
that the puddle existed.
5
in relevance under some circumstances, it certainly does not
diminish to the point of being eliminated”).
Additionally, and most significantly, both Courville and her
daughter testified during their depositions that after she fell,
the “manager,” Cher Carriere, looked at the puddle and admitted
that “they should have cleaned that up; they should have seen it.”2
This statement indicates that Carriere, after assessing the
situation, believed a Target employee should have been aware of the
liquid, and as such, this admission from a supervisor supports a
finding of constructive notice. Viewing the evidence in the light
most favorable to Courville, we are persuaded that she has raised
a genuine issue of material fact with respect to whether the hazard
“existed for such a period of time that it would have been
discovered if the merchant had exercised reasonable care.” Thus,
we vacate the district court’s judgment and remand for further
proceedings.
VACATED and REMANDED.
2
Carriere has denied this admission; however, we look at the
evidence in the light most favorable to Courville. We note that
although Carriere is referred to by Courville and Courville’s
daughter as the manager, her title at the time was “Leader on
Duty.”
6
