Schouest v. Home Depot U.S.A., Inc.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LARRY SCHOUEST, JR. 	CIVIL ACTION
VERSUS 	NO. 23-1505
HOME DEPOT AND ABC
INSURANCE COMPANY
SECTION “R” (4)
ORDER AND REASONS
Before the Court is defendant Home Depot’s opposed 1 motion for
summary judgment. 2 The Court grants the motion.
I. 	BACKGROUND
This case arises out of an alleged slip-and-fall at a Home Depot in
Tangipahoa Parish, Louisiana. On March 10, 2020, plaintiff, while entering
a Home Depot, fell. 3 It had rained on the date of the incident. 4
Plaintiff filed this lawsuit in state court; defendants timely removed on
May 4, 2023.5 Defendant sent written discovery requests to Plaintiff, seeking
photographs depicting the alleged condition of the floor. 6 	Plaintiff has
1 	R. Doc. 49.
2 	R. Doc. 38.
3 	R. Doc. 38, Exhibit B.
4 	Id.
5 	R. Doc. 1.
6 	R. Doc. 38-2 at ¶ 4.
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produced no photographs from the day of the incident. 7 Plaintiff has instead
submitted to the Court photographs from four and five years later, which he
and his wife, who was present the day of the incident, attest depict similar
conditions. 8
Defendant now moves for summary judgment. 9 	Plaintiff opposes the
motion. 10 The Court considers the motion below.
II. 	LEGAL STANDARD
Summary judgment is warranted when “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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). 	The Court considers the evidence in
the 	record 	without 	making 	credibility 	determinations 	or 	weighing 	the
evidence. Delta & Pine Land Co. v. Nationwide Agribusiness Ins., 530 F.3d
395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of
the nonmoving party. 	Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216
7 	Id. at ¶ 5; see also R. Doc. 49-2 at ¶ 9 (attesting that while photographs
were taken by plaintiff on the day of the incident, he has been unable
to produce the photographs).
8 	See R. Doc. 49-2 at ¶ 10; R. Doc. 49-3 at ¶ 10.
9 	R. Doc. 38.
10 	R. Doc. 49.
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(5th Cir. 1985). If the record could not lead a rational trier of fact to find for
the nonmoving party, there is no genuine dispute of material fact. EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. 	See Celotex, 477 U.S. at
325. 	The burden then shifts to the nonmoving party, who must, by
submitting or referring to material admissible in evidence or capable of being
made admissible, set out specific facts showing that a genuine issue exists.
See id. at 324; Fed. R. Civ. P. 56(c)(1)(A), (c)(2)(B). The nonmovant may not
rest upon the pleadings but must identify specific facts that establish a
genuine issue for resolution. See, e.g., id.
III. 	DISCUSSION
Where, as here, jurisdiction is based on diversity, the Court applies the
substantive law of the forum state. 	Bayle v. Allstate Ins. Co., 615 F.3d 350,
355 (5th Cir. 2010). 	Under Louisiana law, merchants must “exercise
reasonable care to keep [their] aisles, passageways, and floors in a reasonably
safe condition.” La. R.S. 9:2800.6. “This duty includes a reasonable effort
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to keep the premises free of any hazardous conditions which reasonably
might give rise to damage.” Id.
A plaintiff seeking damages against a merchant for a slip-and-fall bears
the burden of proving that: (1) the condition on the merchant’s premises
created 	an 	unreasonable 	risk 	of 	harm 	and 	the 	risk 	was 	reasonably
foreseeable; (2) the merchant either created or had actual or constructive
notice of the condition which caused the damage, prior to the incident; and
(3) the merchant failed to exercise reasonable care. 	La. R.S. 9:2800.6(B).
The burden falls squarely on the plaintiff to establish these elements and
plaintiff’s failure to prove any one element is fatal to his cause of action.
Peterson v. Brookshire Grocery Co., 751 F. App’x 533, 535 (5th Cir. 2018)
(per curiam).
Defendant seeks summary judgment dismissing plaintiff’s complaint
on the grounds that plaintiff cannot prove (1) that water was present on the
floor and presented an unreasonably dangerous condition, and (2) that
Home Depot knew or should have known of the presence of water prior to
the alleged fall. 11 	In response, plaintiff provides his and his wife’s affidavits
attesting to the condition of the floor, and photographs of the Home Depot
store on dates four and five years after the incident, which plaintiff and his
11 	See R. Doc. 38.
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wife attest are representative of the condition present on the date of the
incident. 12 Plaintiff also directs the Court to a Louisiana Fourth Circuit Court
of Appeal case which he argues establishes that he has pointed to sufficient
evidence of constructive notice. 13
Pretermitting discussion of the whether plaintiff can establish an
unreasonably dangerous condition, plaintiff has not raised an issue of
material fact that Home Depot had actual or constructive notice of the
alleged hazardous water. Plaintiff does not allege that Home Depot created
the hazard. 	He does not argue that Home Depot had actual notice of it.
Instead, plaintiff relies on constructive notice.
La. 	R.S. 	9:2800.6 	provides 	that 	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 merchant had reasonable care.” La. R.S.
9:2800.6(C)(1). 	To establish constructive notice, plaintiff must make a
positive showing that the condition existed for some time prior to the
incident. White v. Wal-Mart Stores, Inc., 699 So. 2d 1081, 1084 (La. 1997).
“A claimant who simply shows that the condition existed without an
additional showing that the condition existed for some time before the fall
12 	See R. Docs. 49-2, 49-3.
13 	See R. Doc. 49.
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has not carried the burden of proving constructive notice as mandated by the
statute.” Id.
At best, plaintiff has pointed to sufficient material to create an issue of
fact that the condition existed. 	However, plaintiff has not pointed to any
material capable of being admitted in evidence that creates an issue of
material fact as to how long the hazardous condition was there. 	As such,
plaintiff has not created an issue of material fact that the condition existed
for such a length of time as would reasonably require a Home Depot
employee to have discovered it. 	Plaintiff’s argument is that the Court can
infer constructive notice based on it having rained on the day of the incident.
In support, plaintiff points to Oalmann v. K-Mart Corp., 630 So. 2d 911 (La.
App. 4th Cir. 1993), a case in which the Louisiana Fourth Circuit Court of
Appeal affirmed judgment in favor of a slip-and-fall plaintiff who had
testified that it was “rainy” the day of her fall but provided little other
evidence. Id. at 913.
This reliance on Oalmann is misplaced. Six years after Oalmann, the
Louisiana Supreme Court found that evidence of rain on the day of a slip-
and-fall was insufficient to prove constructive notice. Kennedy v. Wal-Mart
Stores, Inc., 733 So. 2d 1188 (La. 1999). In Kennedy, the Louisiana Supreme
Court held that La. R.S. 9:2800.6 set forth a “clear and unambiguous”
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definition of constructive notice which requires more than simply showing
that a condition existed. Id. at 1191 (quoting White, 699 So. 2d at 1084-85).
Here, plaintiff asks the Court to rely on the same evidence that the
Louisiana Supreme Court found insufficient in Kennedy. The Court will not
do so. Plaintiff has pointed to “absolutely no evidence as to the length of time
the [water] was on the floor before his accident.” Id. Plaintiff therefore has
failed to raise an issue of material fact in opposition to defendant’s motion
for summary judgment on an essential element of his claim. 	Accordingly,
the Court must grant defendant’s motion.
IV. 	CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion for
summary judgment. Plaintiff’s claims are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this _____ day of December, 2025.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
16th
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