Atkinson, et al v. Dolgencorp Inc

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-31061
SUZANNE ATKINSON; ROBERT ATKINSON,
PLAINTIFFS-APPELLANTS,
VERSUS
DOLGENCORP INC., doing business as Dollar General
Corp.,
DEFENDANT-APPELLEE.
Appeal from the United States District Court for the
Western District of Louisiana
(5:05-CV-966)
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
United States Court of Appeals
Fifth Circuit
F I L E D
March 15, 2007
Charles R. Fulbruge III
Clerk

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*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determined that this opinion should not be published and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.
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PER CURIAM:*
Plaintiffs-Appellants Suzanne and Robert Atkinson
(“Appellants”) challenge the district court’s grant of
summary judgment in favor of Defendant-Appellee
Dolgencorp Inc. (“Appellee”) dismissing Appellants’ strict
liability claim.
Suzanne Atkinson (“Atkinson”) walked in to
Appellee’s general store intending to buy a chair. She saw
and inquired about a plastic chair that she was
considering purchasing. Appellants allege that when
Atkinson sat in the chair, it collapsed, injuring her.
Appellants filed suit alleging strict liability pursuant
to LA. CIV. CODE. ANN. ART. 2317 (1996). Appellee moved

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for summary judgment, and the district court granted the
motion. This timely appeal followed.
Appellants concede that, under LA. CIV. CODE. ANN.
ART. 2317.1, Appellee is liable only for damage caused by
a defect that it knew or should have known existed.
Appellants’ only attempt to satisfy their burden is the
doctrine of
res ipsa loquitur.
The district court, applying Louisiana precedent,
found the doctrine inapplicable. After reviewing the issue
de novo, we agree with the district court that, for the
reasons stated in its written memorandum,
res ipsa
loquitur does not apply. Louisiana courts have not
extended the doctrine to new chairs that break in a retail
stores, and sitting as an
Erie court, we see no reason to
extend Louisiana law.
AFFIRMED.

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