Cotton v. 19065 Hammond Stolley, LLC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ORDER & REASONS
Before the Court is a motion for summary judgment filed by defendant 19065 Hammond
Stolley, LLC (“Hammond Stolley”).1 Plaintiff James Cotton responds in opposition,2 and
Hammond Stolley replies in further support of its motion.3 Having considered the parties’
memoranda, the record, and the applicable law, the Court grants the motion because Cotton cannot
show that Hammond Stolley either created or had actual or constructive notice of the alleged
condition which he says caused his injury.
I. BACKGROUND
The present action arises out of a trip-and-fall. On January 29, 2024, Cotton drove Richard
Williamson, who uses a wheelchair, and Williamson’s caretaker, Joann Lee, to the Cypress Pointe
Medical Office Building in Hammond, Louisiana.4 The building is owned by the defendant,
Hammond Stolley.5 Cotton claims that, while escorting Williamson into the building, he tripped
and fell when his “foot got caught in a pocket or cuff inside a rug that was placed on the floor of
the entrance way.”6 He asserts that Hammond Stolley is liable to him for damages resulting from
1 R. Doc. 17.
2 R. Doc. 18.
3 R. Doc. 19.
4 R. Docs. 18 at 3, 5; 18-5.
5 R. Doc. 17-1 at 1.
6 R. Doc. 18 at 3.
JAMES COTTON
VERSUS
19065 HAMMOND STOLLEY, LLC
CIVIL ACTION
NO. 25-455
SECTION M (4)
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the fall, which he says include past and future pain and suffering, past and future mental anguish,
past and future physical impairment, past and future medical expenses, lost wages and loss of
earning capacity, and legal costs.7 The action, originally filed in state court in Tangipahoa Parish,
was removed to this Court on March 7, 2025.8
II. PENDING MOTION
In its summary-judgment motion, Hammond Stolley argues that Cotton cannot show that
it had actual or constructive knowledge of the allegedly defective condition prior to Cotton’s fall,
a necessary element of his claim.9 In fact, says Hammond Stolley, Cotton, in his deposition,
“admitted that he could not confirm the building was aware of the defective condition.”10
Alternatively, it asserts that the condition was “open and obvious” such that Cotton should have
avoided it, so Hammond Stolley “cannot be liable for any injury resulting from the condition.”11
It points to Cotton’s deposition testimony, in which it says he acknowledged that the condition
was open and obvious.12
In response, Cotton first argues that there is a genuine dispute of material fact as to whether
Hammond Stolley created the defect or condition.13 In support, he points to his deposition
testimony that the rug appeared old and worn at the time of the incident and a declaration from
Joann Lee, who witnessed the incident, to the same effect.14 He says that, based on their testimony,
one can infer that Hammond Stolley “neglected to inspect, clear and/or replace a rug in the
customer area of the building,” and thus created the condition.15 Cotton further says he
7 R. Doc. 1-1 at 3-4.
8 R. Doc. 1.
9 R. Doc. 17-1 at 4-6.
10 Id. at 5.
11 Id. at 6-9 (quote at 6).
12 Id. at 8-9.
13 R. Doc. 18 at 7-10.
14 Id. at 8-9.
15 Id. at 9-11 (quote at 9).
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“presume[s]” that Hammond Stolley’s janitorial staff had cleaned the area that day, before Cotton
entered the building, but he hopes to confirm this presumption as fact at a deposition of Hammond
Stolley’s personnel prior to the close of discovery.16
Second, Cotton argues that Hammond Stolley had actual or constructive notice of the
condition.17 Cotton argues that his and Lee’s testimony creates a genuine dispute of material fact
as to Hammond Stolley’s notice of the condition, as one could infer from their testimony that
Hammond Stolley should have noticed the tear in the rug.18 Further, he reasons that, if Hammond
Stolley’s personnel did not inspect the area, as Cotton “presume[s],” Hammond Stolley’s failure
to comply with its own policies and procedures could create constructive notice of the condition.19
Alternatively, says Cotton, if the inspection did occur, Hammond Stolley’s personnel would have
seen the condition, or at the least, there is a genuine dispute of material fact regarding Hammond
Stolley’s constructive notice.20 Next, Cotton argues that a determination of whether a condition is
“open and obvious” is a question of fact for a jury, and thus is not proper on summary judgment.21
Finally, he says that because discovery remains ongoing, the Court should defer ruling on the
motion until discovery is complete.22
In its reply, Hammond Stolley states that Cotton “has provided no evidence that [Hammond
Stolley] or anyone associated with [it] created the alleged condition in the rug, and no evidence-
based inference leads to such a conclusion.”23 It again argues that Cotton cannot show it had actual
knowledge of the condition, specifically urging that the testimony of Cotton and Lee that the rug
16 Id. at 10.
17 Id. at 11-16.
18 Id. at 8-10.
19 Id. at 13-16.
20 Id.
21 Id. at 16-18.
22 Id. at 18.
23 R. Doc. 19 at 2.
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appeared old and worn is insufficient to carry Cotton’s summary-judgment burden on constructive
notice.24 Hammond Stolley submits that because Cotton acknowledged in his deposition that the
condition was obvious, he cannot now claim there is any factual dispute regarding whether the
condition was open and obvious.25 Finally, Hammond Stolley argues that the Court should not
defer ruling on the motion because Cotton has already had sufficient opportunity to conduct
discovery.26
III. LAW & ANALYSIS
A. Legal Standard
Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show 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. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56. “Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon motion, 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 at trial.” Celotex, 477 U.S. at 322. A party
moving for summary judgment bears the initial burden of demonstrating the basis for summary
judgment and identifying those portions of the record, discovery, and any affidavits supporting the
conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets
that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate
the existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
24 Id. at 3-4.
25 Id. at 4-6.
26 Id. at 6-7.
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nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive
law identifies which facts are material. Id. Material facts are not genuinely disputed when a
rational trier of fact could not find for the nonmoving party upon a review of the record taken as a
whole. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); EEOC
v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). Unsubstantiated assertions, conclusory
allegations, and merely colorable factual bases are insufficient to defeat a motion for summary
judgment. See Anderson, 477 U.S. at 249-50; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994); Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary-judgment
motion, a court may not resolve credibility issues or weigh evidence. See Delta & Pine Land Co.
v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court
must assess the evidence, review the facts, and draw any appropriate inferences based on the
evidence in the light most favorable to the party opposing summary judgment. See Tolan v. Cotton,
572 U.S. 650, 656-57 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet,
a court only draws reasonable inferences in favor of the nonmovant “when there is an actual
controversy, that is, when both parties have submitted evidence of contradictory facts.” Little, 37
F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
After the movant demonstrates the absence of a genuine issue of material fact, the
nonmovant must articulate specific facts showing a genuine issue and point to supporting,
competent evidence that may be presented in a form admissible at trial. See Lynch Props., Inc. v.
Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A), (c)(2). Such
facts must create more than “some metaphysical doubt as to the material facts.” Matsushita, 475
U.S. at 586. When the nonmovant will bear the burden of proof at trial on the dispositive issue,
the moving party may simply point to insufficient admissible evidence to establish an essential
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element of the nonmovant’s claim in order to satisfy its summary-judgment burden. See Celotex,
477 U.S. at 322-25; Fed. R. Civ. P. 56(c)(1)(B). Unless there is a genuine issue for trial that could
support a judgment in favor of the nonmovant, summary judgment must be granted. See Little, 37
F.3d at 1075-76.
B. Analysis
1. Federal Rule of Civil Procedure 56(d)
Pursuant to Federal Rule of Civil Procedure 56(d), “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the
court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d).
As the Fifth Circuit has explained, the nonmovant must “show (1) why he needs additional
discovery and (2) how that discovery will create a genuine issue of material fact.” January v. City
of Huntsville, 74 F.4th 646, 651 (5th Cir. 2023) (quotation and alteration omitted). “[V]ague
assertions that additional discovery will produce needed, but unspecified, facts” are insufficient.
Id. (quotation omitted). Instead, the nonmovant “must set forth a plausible basis for believing that
specified facts, susceptible of collection within a reasonable time frame, probably exist and
indicate how the emergent facts, if adduced, will influence the outcome of the pending summary
judgment motion.” Id. (quotation omitted). The nonmovant “must also have diligently pursued
discovery.” Id. (quotation omitted).
In his opposition memorandum, Cotton requests that the Court defer ruling on Hammond
Stolley’s summary-judgment motion “until all discovery is completed” because “it is presumed –
although not definitively known” – that Hammond Stolley’s staff cleaned the area that day and
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that its staff conducts quarterly inspections of the building.27 Even assuming that Cotton’s
presumed facts are “susceptible of collection within a reasonable time frame, probably exist, and
… will influence the outcome of the pending summary judgment motion,” id., Cotton’s request is
noncompliant with Rule 56(d) because he attached no affidavit or declaration in support of the
request. Further, Cotton makes no attestation that he has “diligently pursued discovery” thus far.
Id. As a result, this Court declines to defer ruling on the motion pending additional discovery.
Regardless, as is evident from the Court’s reasoning below in granting the motion, Cotton’s
presumed facts are not material in that they would not alter the outcome of the motion, so there is
no reason for delay.
2. Actual or Constructive Notice of Defect or Condition or Creation of Condition
For purposes of the instant summary-judgment motion, the parties dispute only two
substantive issues: (1) whether Hammond Stolley had actual or constructive notice of the tear in
the rug, or whether it created the tear, and (2) whether the tear in the rug was open and obvious
such that, even assuming Hammond Stolley had notice of it or created it, it is not liable because
Cotton should have seen and avoided it.
As a preliminary matter, the Court addresses Cotton’s theory of liability. Cotton asserts
that Hammond Stolley “is liable under Louisiana Civil Code Article 2317 and/or La. R.S.
9:2800.6.”28 The notice requirements applicable to the claims are similar, even though the claims
constitute separate theories of custodial liability. Indeed, to satisfy the notice requirement for an
article 2317 claim against Hammond Stolley (as owner or custodian of the rug) for damages caused
by a defect in the rug, Cotton must show that Hammond Stolley had actual or constructive notice
27 R. Doc. 18 at 10, 19.
28 R. Doc. 18 at 7.
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of the defect.29 Meanwhile, to satisfy the notice requirement for a merchant-liability claim against
Hammond Stolley (as a merchant) for damages caused by an unreasonably dangerous condition
on its premises, Cotton must show that Hammond Stolley had actual or constructive notice of the
condition, or that it created the condition.30
In his opposition, Cotton puts forward no evidence that Hammond Stolley was aware of
any tear or cuff in the rug ahead of the incident. Instead, Cotton points to two pieces of evidence
which he asserts create a genuine dispute of material fact with respect to notice: (1) his presumption
that Hammond Stolley’s janitorial staff had cleaned the area that day, and (2) his and Lee’s
testimony that the rug appeared old and worn at the time of the incident. Neither piece of evidence
creates a genuine dispute of material fact as to whether Hammond Stolley created or had actual or
constructive notice of the condition.
First, Cotton’s presumption that Hammond Stolley’s janitorial staff cleaned the area is
insufficient summary-judgment evidence. Indeed, Cotton concedes that it is a mere presumption.
And as this Court has explained, unsubstantiated assertions, conclusory allegations, and merely
colorable factual bases are insufficient to defeat a motion for summary judgment. To be sure,
29 Article 2317 creates a cause of action against the owner or custodian of a thing for damages caused by the
thing’s vice, ruin, or defect, but warns that claims which arise under article 2317 are “to be understood with the
following modifications.” LA. CIV. CODE art. 2317. The following article, 2317.1, then creates a negligence standard
for liability under article 2317 by requiring plaintiffs to show, among other things, that the defendant had actual or
constructive notice of the defect.
30 Louisiana’s Merchant Liability Act (La. R.S. 9:2800.6) is, for purposes of this discussion, analogous to
article 2317.1, but it applies to a different class of claims. Like article 2317.1, it establishes a burden of proof for
general negligence claims against merchants for damage caused by unreasonably dangerous conditions on their
premises. Pursuant to the Merchant Liability Act, to prevail on merchant-liability claims, plaintiffs must show 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)(2).
Notably, the Merchant Liability Act applies only to “merchants,” which the Act defines as “one whose
business is to sell goods, foods, wares, or merchandise at a fixed place of business.” La. R.S. 9:2800.6(C)(2). In
their briefing, the parties do not address whether Hammond Stolley satisfies the statutory definition of “merchant”
such that the Merchant Liability Act applies. However, for purposes of this motion, and because the parties make the
assumption, the Court assumes arguendo that Hammond Stolley is a merchant, and that the Act applies, especially
since it does not affect the Court’s decision on Hammond Stolley’s summary-judgment motion, given that custodial-
liability claims and merchant-liability claims have quite similar notice requirements.
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Louisiana courts have expressly found similar unsupported allegations insufficient to defeat a
summary-judgment motion, pointing to a lack of evidence on the notice requirement of plaintiffs’
merchant-liability or article 2317 claims. E.g., Thompson v. Dollar Up LA LLC, 365 So. 3d 149,
155 (La. App. 2023) (citing Johnson v. Federated Mut. Ins. Co., 325 So. 3d 578, 583 (La. App.
2021)) (merchant-liability claim); Garrett v. Dep’t of Child. & Fam. Servs., 379 So. 3d 74, 80 (La.
App. 2023) (citing Stanfield on behalf of Leblanc v. Lafourche Parish Sch. Bd., 365 So. 3d 816,
821 (La. App. 2023)) (article 2317 claim). Moreover, even if the presumption were confirmed as
fact, that the janitorial staff cleaned the area does not establish either that the rug was torn or that
they knew the rug was torn.
The second piece of evidence upon which Cotton relies – his and Lee’s testimony that the
rug appeared old and worn – does not carry his summary-judgment burden, either. Again, Cotton’s
and Lee’s respective testimony that the appearance of the rug somehow indicates how long it had
been torn or whether Hammond Stolley tore it is “‘[m]ere speculation or suggestion,’” which is
insufficient to meet a nonmovant’s summary-judgment burden. Adams v. Dolgencorp, L.L.C., 559
F. App’x 383, 386 (5th Cir. 2014) (quoting Bagley v. Albertsons, Inc., 492 F.3d 328, 330 (5th Cir.
2007)). To be sure, “‘courts will not infer constructive notice for purposes of summary judgment
where the plaintiff’s allegations are no more likely than any other potential scenario.’” Id. (quoting
Taylor v. Wal-Mart Stores, 464 F. App’x 337, 339 (5th Cir. 2012)). Here, there is no evidence
that the tear or cuff in the rug, which Cotton alleges caused his fall, was not created by the front
wheel of Williamson’s wheelchair or by another patron entering the building earlier in the day but
after the janitorial staff cleaned the area. The old-and-worn appearance of the rug does not increase
the likelihood that the torn condition was present for any specific amount of time, and thus does
not make Cotton’s allegations about the origin of the tear more likely than any other explanation.
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And, using the same rationale, the old-and-worn appearance of the rug has no bearing on whether
Hammond Stolley “created” the condition.
Cotton cannot point to a genuinely disputed material fact which establishes Hammond
Stolley’s actual or constructive notice of the condition or its creation of the condition. As a result,
he cannot carry his summary-judgment burden on a custodial-liability claim under article 2317 or
a merchant-liability claim under La. R.S. 9:2800.6. Because he cannot establish either claim, the
Court need not consider whether the condition was open and obvious.
IV. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Hammond Stolley’s motion for summary judgment (R. Doc. 17) is
GRANTED, and Cotton’s claims are dismissed with prejudice.
New Orleans, Louisiana, this 30th day of October, 2025.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE
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