Bagley v. Albertsons Inc

United States Court of Appeals
Fifth Circuit
F I L E D
July 9, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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
______________________________
Before SMITH, BENAVIDES, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Sue Bagley slipped and fell in a puddle in
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
puddle or had constructive notice of it before
her fall. After removal, the district court
granted summary judgment for Albertson’s.
Bagley appeals, and we reverse and remand.
I.
Bagley slipped and fell on a liquid substance
spilled in an Albertson’s aisle.1 No other
1 The evidence and inferences from the sum-
mary judgment record must be viewed in the light
(continued...)

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shoppers were in the aisle when she fell, and
several minutes elapsed before she could
contact anyone for help. A fireman was the
first person to come to her aid; he also fell
while approaching her and later observed a
trail of the substance down the aisle and into
an adjacent aisle. Several employees began
sliding halfway down the aisle when they later
approached to assist. Although the employees
opined that the liquid might have been meat
blood leaking from a shopping cart, nobody
could positively identify the substance.
Bagleysued in state court, seeking recovery
for injuries to her back and hips resulting from
the fall. Albertson’s removed and sought sum-
mary judgment, which the district court grant-
ed, finding that Bagley could not provide
evidence to demonstrate that the store created
the puddle or had constructive notice.
II.
Summary judgment is proper “if the plead-
ings, depositions, answers to interrogatories,
and admissions on file, together with the affi-
davits, if any, show that there is no genuine is-
sue 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). Disputes about
material facts are genuine “if the evidence is
such that a reasonable jury could return a ver-
dict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). We review a summary judgment de
novo. Skotak v. Tenneco Resins, Inc., 953
F.2d 909, 912 (5th Cir. 1992).
As an element of a Louisiana delictual ac-
tion for failure to maintain safe premises, a
plaintiff must demonstrate that the “merchant
either created or had actual or constructive no-
tice of the condition which caused the damage,
prior to the occurrence.” LA. REV. STAT.
ANN. § 9:2800.6(B)(2). “‘Constructive no-
tice’ means the claimant has proven that the
condition existed for such a period of time that
it would have been discovered if the merchant
had exercised reasonable care.” Id. § 9:2800.-
6(C)(1). The statute “places a heavy burden
of proof on plaintiffs” in slip and fall cases.
Jones v. Brookshire Grocery Co., 847 So.2d
43, 48 (La. App. 2d Cir. 2003). “Mere specu-
lation or suggestion” is not sufficient to meet
this burden, and courts will not infer construc-
tive notice for the purposes of summary judg-
ment where the plaintiff’s allegations are “no
more likely than any other potential scenario.”
Allen v. Wal-Mart Stores, Inc., 850 So .2d
895, 898-99 (La. App. 2d Cir. 2003).
III.
Bagley alleges that Albertson’s created the
spill by either improperly wrapping meat prod-
ucts, or by improperly inspecting wrapped
meat for rips. Bagley supports her allegations
with the deposition testimony of two store em-
ployees who were present after her fall and
opined that the spill was probably from a leaky
meat package. Given that the employees are
familiar with the appearance of meat effluence,
their testimony is competent summary judg-
ment evidence that the liquid substance was
meat blood.
Bagley has presented no evidence as to how
the liquid reached the floor. She attempts to
rely on the testimony of a single employee who
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
of the bottom of their buggy.” This statement
is speculative at best, and even if it were suffi-
1(...continued)
most favorable to the nonmovant. Minter v. Great
Am. Ins. Co., 423 F.3d 460, 465 (5th Cir. 2005).

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cient evidence for a jury to find that the liquid
came from a cart, it is yet another step to show
Albertson’s responsibility for the leak. No rea-
sonable jury could find that Bagley has pre-
sented sufficient evidence to demonstrate that
Albertson’s created a leak.
Alternatively, Bagley alleges that Albert-
son’s had constructive notice of the puddle on
the floor. Whether the period of time that a
condition existed was sufficient to provide a
merchant with constructive notice is a fact
question that must be submitted to the jury.
Allen, 850 So. 2d at 898. “[H]owever, there
remains the prerequisite showing of some time
period.” Id. There is no bright line time peri-
od, but “some positive evidence is required of
how long the condition existed prior to the
fall.” Robinson v. Brookshires #26, 769 So.
2d 639, 642 (La. App. 2d Cir. 2000).
The district court relied on the fact that
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
declined “in the absence of additional evidence
concerning the origin and mechanics of the
spill to infer a correlation between the size of
the spill and the length of time the spill existed
prior to the incident.” Id. at 122. By compari-
son, in Broussard v. Wal-Mart Stores, Inc.,
741 So. 2d 65 (La. App. 3d Cir.), writ denied,
742 So. 2d 562 (La. 1999), the court found
sufficient facts to present constructive notice
to the jury where a spill was “elongated, not
uniform, and covers approximately three to
four tiles, suggesting that it had spread over a
period of time.” Id. at 69. The present case is
more analogous to Broussard, because the size
and nature of the spill demonstrate that some
period of time passed before Bagley’s acci-
dent. She has presented sufficient evidence to
survive summary judgment on the issue of
constructive notice.
The judgment is REVERSED, and this mat-
ter is REMANDED for further proceedings.

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