MEMORANDUM RULING

ROBERT R. SUMMERHAYS, District Judge.

Before the Court is a Motion for Summary Judgment filed by Defendant, DG Louisiana, LLC.1 Pursuant to its motion, Defendant seeks dismissal with prejudice of this merchant liability suit brought by Plaintiff Glenda Carter. For the reasons that follow, Defendant's motion is DENIED.

I.

BACKGROUND

Plaintiff brings this suit for damages allegedly sustained due to a slip and fall at a Dollar General store owned by Defendant and located at 1419 E. Prien Lake Road, in Lake Charles, Louisiana. According to Plaintiff, on the evening of October 22, 2015, sometime between the hours of 7:00 and 8:30 p.m., she and her daughter stopped at Dollar General to purchase personal items for Ms. Carter's grandson who had been admitted to a local hospital.2 Plaintiff testified she turned left from the main aisle of the store onto the last aisle on the eastern side of the store to look for a pair of slippers. Plaintiff took about five steps into the aisle when she slipped and fell on store merchandise (specifically, clothing) discarded on the floor of the aisle.3 Thereafter, Plaintiff filed suit in state court, alleging the fall caused "injuries to her body as a whole, including, but not limited to back and neck," as well as mental and emotional damages.4

Defendant subsequently removed the suit to this Court on the basis of diversity jurisdiction. Defendant now seeks dismissal of Plaintiff's suit, contending "no trip and fall incident occurred as claimed by Plaintiff," and Plaintiff has been "untruthful about this alleged incident, and quite possibly, is committing fraud."5 Alternatively, Defendant argues "even if the incident did occur," Plaintiff cannot show Defendant had actual or constructive notice of the condition which caused Plaintiff's damages, and therefore summary judgment in Defendant's favor is warranted.6

II.

STANDARD OF REVIEW

"A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought." Fed. R. Civ. P. 56(a). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. "A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party." Quality Infusion Care, Inc. v. Health Care Service Corp., 628 F.3d 725, 728 (5th Cir. 2010). As summarized by the Fifth Circuit:

Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994) (internal citations omitted).

When reviewing evidence in connection with a motion for summary judgment, "the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party as well as that evidence supporting the moving party that is uncontradicted and unimpeached." Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir.2001); see also Feist v. Louisiana, Dept. of Justice, Office of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013) (courts must view all facts and evidence in the light most favorable to the non-moving party), "Credibility determinations are not part of the summary judgment analysis." Quorum Health Resources, L.L.C. v. Maverick County Hosp. Dist., 308 F.3d 451, 458 (5th Cir. 2002). Rule 56 "mandates the entry of summary judgment ... against a party who fails to 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." Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004) (alterations in original) (quoting Celotex v. Catrett, 477 U.S. 317, 322 (1986)).

III.

ANALYSIS

Defendant first argues Plaintiff's suit should be dismissed, "as store surveillance video conclusively shows that no incident occurred as alleged by the Plaintiff."7 According to Defendant, the store in question is equipped with "motion activated surveillance cameras" that record only when movement or motion is detected.8 Defendant states it retained a third-party vendor to download all video footage recorded between 6:16 p.m. and 8:16 p.m. on the day of the incident, and none of the footage shows any trip and fall occurred.9 Based upon this footage, Defendant concludes Plaintiff has been "untruthful about this incident, and quite possibly is committing fraud."10 In her opposition, Plaintiff primarily attacks the reliability of the store's motion-activated surveillance cameras.

The Fifth Circuit has indicated that courts should give greater weight at the summary judgment phase to facts "evident from video recordings taken at the scene." Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Where a video recording discredits the plaintiff's version of events, courts should consider "the facts in the light depicted by the videotape." Id. (quoting Scott v. Harris, 550 U.S. 372 (2007)). Applying this principle, courts in the Fifth Circuit have relied on video recordings to grant summary judgment in slip and fall cases. See e.g., Cone v. DG Louisiana, LLC, No. 18-CV-1247, 2019 WL 1111463, at *3-4 (E.D.La. March 11, 2019); Courington v. Wal-Mart Louisiana, LLC, No. 2:17-CV-00771, 2018 WL 707521, *3-4 (W.D.La. Feb. 2, 2018). Here, however, the video footage in the summary judgment record does not foreclose Plaintiff's version of events.

As noted, Defendant relies upon video footage covering the timeframe from 6:16 p.m. to 8:16 p.m. on the day of the incident. However, neither party addresses Plaintiff's deposition testimony that the incident occurred sometime between 7:00 and 8:30 p.m. in the evening.11 Plaintiff repeats this time frame several times. Plaintiff further testified the accident had to occur before 9:00 p.m., because she and her daughter needed to deliver the items to Plaintiff's grandson before 9:00 p.m. when visiting hours at the hospital ended.12 Because the video footage relied upon by Defendant ends at 8:16 p.m., but Plaintiff testified several times the accident could have occurred as late as 8:30 p.m., this creates a question for the jury as to which timeline is more credible and whether the video evidence discredits Plaintiff's version of events.13 As such, Defendant has not "conclusively" shown that the incident did not occur, and therefore summary judgment on this basis is denied.14

In the alternative, Defendant argues Plaintiff cannot satisfy her prima facie burden because she cannot show Defendant had actual or constructive notice of the hazardous condition causing her slip and fall. Plaintiff does not argue Defendant had actual notice of the condition and therefore only constructive notice is at issue. Merchant liability for slip or trip and fall cases is governed by the Louisiana Merchant Liability Act, La. R.S. 9:2800.6. The Act requires a claimant to show, inter alia, that "[t]he merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence." La. R.S. 9:2800.6(B). A merchant is considered to have "constructive notice" of an injury-causing condition if the claimant proves "that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." La. R.S. 9:2800.6(C)(1). Thus, constructive notice necessarily includes a temporal element, and merely demonstrating the existence of the hazard is insufficient. White v. Wal-Mart Stores, Inc., 699 So.2d 1081, 1084 (La. 1997). While there is no bright line time period and the time period need not be specific in minutes or hours, constructive notice does require that the claimant prove the condition existed for some period of time prior to the fall. Id. at 1084-85. If the claimant shows the condition existed for some period of time, "[w]hether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question." Id.

Here, Defendant argues Plaintiff cannot show Defendant had constructive notice of the injury-causing condition, because Plaintiff cannot recall with particularity exactly what type of clothing caused her trip and fall, and she does not know where the item of clothing came from, who left it on the floor or how long it was on the floor.15 In opposition, Plaintiff submits the testimony of Rachel Guy, a former employee of Dollar General who was working at the store where Plaintiff fell at the time of the accident and to whom Plaintiff reported the incident. Ms. Guy testified after Plaintiff reported the incident to her, she went to the aisle where Plaintiff alleges she fell and found it to be in disarray.16 After viewing the surveillance video at her deposition, Ms. Guy testified the aisle was not in proper condition, as merchandise was supposed to be put away and not situated on the floor.17 She further testified the aisles at the store were frequently in disarray "for a while," because they were always short-staffed at the store.18 She testified on the day of the incident, the merchandise was on the floor of the aisle "for a while," because only Ms. Guy and her supervisor were working at the time of the incident.19 She further testified employees were trained to restock items left on the floor.20 This testimony creates a fact issue for the jury as to whether the condition existed for "some time period" prior to Plaintiff's fall and as to whether that period of time was "sufficiently lengthy that a merchant should have discovered the condition."21 White at 1084-85.

For the reasons set forth above, the motion for summary judgment [ECF No. 48] filed by Defendant is DENIED.