Case: 23-30393 Document: 54-1 Page: 1 Date Filed: 04/04/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 23-30393 April 4, 2024
____________ Lyle W. Cayce
Clerk
Susan Miller,
Plaintiff—Appellant,
versus
Michaels Stores, Incorporated, doing business as Michaels,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:22-CV-359
______________________________
Before Richman, Chief Judge, and Graves and Wilson, Circuit
Judges.
James E. Graves, Jr., Circuit Judge:
Plaintiff-appellant Susan Miller brought this negligence suit against
defendant-appellee Michaels Stores, Inc., seeking compensation for injuries
she allegedly suffered after slipping and falling at a store in Slidell, Louisiana.
Under Louisiana law, Miller must show that the hazardous conditions that
caused her injury existed for such a time that Michaels was on constructive
notice of them. While there are lingering questions about Michaels’s failure
to disclose potentially relevant evidence in the proceedings below, we
conclude that Miller failed to demonstrate either spoliation or a genuine
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No. 23-30393
dispute of material fact as to notice. We therefore AFFIRM the district
court’s grant of summary judgment to Michaels.
I. BACKGROUND
Miller arrived at the Michaels store in Slidell in the midst of a
rainstorm. Upon walking into the store’s vestibule, she turned left and
entered the store proper via a propped-open exit door, rather than the
entrance doors in front of her.
Seconds afterward, Miller slipped and fell on a clear substance. In a
later affidavit, Miller declared that there were no signs in the area where she
entered to warn her that the floor was wet. She also declared that a staff
member witnessed her fall and told her that staff had set up a warning sign
and a mat at the other door, but not at the door Miller used. The staff member
also told her that staff had been mopping up water tracked in by customers.
Before Miller left, she took photos of cameras mounted on the ceiling
and asked staff to file an incident report “to connect with the surveillance
footage.”
Miller sued Michaels for negligence, alleging that she suffered
disabling injuries as a result of her fall. Michaels moved for summary
judgment, arguing that Miller lacked evidence that Michaels was on notice of
any hazards in the area where Miller slipped. Miller responded that Michaels
had deprived her of that evidence by failing, in discovery, to turn over video
footage of the front of the store from the day she fell. Specifically, Miller
argued, Michaels had claimed in a discovery response that it had no footage,
and that there were no cameras located where Miller’s fall occurred—claims
that, she argued, were undermined by her photos of the ceiling-mounted
cameras. Prompted by Miller, the district court ordered Michaels to produce
“any surveillance footage of the alleged incident.” The district court also
ordered Michaels to produce a verified statement “addressing the
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inconsistencies in its [discovery] answers,” to assist it in deciding the
summary judgment motion.
Two weeks later, Michaels complied with the order, submitting two
videos to the court. Michaels’s counsel explained in an accompanying
affidavit that Michaels had not produced the footage earlier because it “does
not . . . show[] the floor where plaintiff allegedly fell.” An additional affidavit
from the store’s manager averred that “[t]he two videos being submitted are
the only videos showing the entrance and exit to the store and the checkout
counter.”
The district court described the relevant portion of the footage:
[A]t around 53 seconds in, plaintiff can be seen entering the
second set of doors to defendant’s shop, at 55 seconds, plaintiff
exits the frame entirely, then at 57 seconds plaintiff is seen
reentering the frame near the ground. This video continues for
21 additional minutes.
In a brief in response to Michaels’s evidentiary submission, Miller
reiterated her claim that Michaels gave false answers in discovery and argued,
among other things, that the district court’s resolution of the summary
judgment motion should be delayed to allow her to move to compel the
production of more footage. A little over two weeks later, she deposed the
store manager, who produced an email from a Michaels claims manager
instructing store staff to preserve video “30 minutes prior and after” Miller’s
fall.
But instead of moving to compel production of more footage, Miller
moved for an adverse inference based on spoliation. Principally, she argued
that Michaels’s failure to turn over video from thirty minutes before Miller’s
fall indicated a failure to preserve relevant evidence.
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On May 24, 2023, the district court denied the spoliation motion on
the ground that Michaels’s failure to produce it did not prejudice Miller. It
explained that Michaels’s footage “does not capture the location of
[Miller’s] alleged fall” and therefore could not show that staff were on notice
of a hazardous condition there.
Then, on June 9, 2023, the district court granted Michaels’s summary
judgment motion. In a comprehensive order, it concluded that the
evidence—Miller’s declaration and photos, the deposition and affidavit
testimony, and the videos submitted by Michaels—did not create a genuine
dispute of material fact as to notice. It did not consider the statement
recounted by Miller in her affidavit from the unidentified staff member,
concluding it was hearsay.
This appeal followed.
II. STANDARD OF REVIEW
The standard of review on summary judgment is de novo. Davidson v.
Fairchild Controls Corp., 882 F.3d 180, 184 (5th Cir. 2018). When the party
that did not move for summary judgment bears the burden of proof at trial—
as Miller does on her negligence claim—the moving party need only point to
a lack of evidence on an essential part of the non-moving party’s claim. See
Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The burden shifts to the
non-moving party to show, with competent evidence, the existence of a
genuine dispute of material fact.
Id. at 322-23. The court must construe all
facts and draw all reasonable inferences in the light most favorable to the non-moving party. Cap. City Ins. Co. v. Hurst,
632 F.3d 898, 903 (5th Cir. 2011).
III. DISCUSSION
Miller argues that the district court wrongly concluded that her
evidence was not sufficient to meet her summary judgment burden as to
notice. She argues that the district court also erred in ruling inadmissible the
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comments that she recounted in her affidavit from the unidentified staff
member. Separately, she argues that the district court erred in denying her
spoliation motion.
a. The “temporal element”
We begin with an overview of the relevant law. In Louisiana, a
standard negligence claim consists of five elements: (1) a duty of care; (2) a
breach of that duty; (3) cause in fact (4) legal cause; and (5) damages. Lemann
v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La. 3/10/06), 923 So. 2d 627, 633.
A plaintiff bringing a slip and fall claim, however, has the additional burden,
under the state’s merchant liability statute, of proving an extra element: that
“[t]he merchant either created or had actual or constructive notice of the
condition which caused the damage, prior to the occurrence.” La. Rev.
Stat. Ann. § 9:2800.6(B)(2); see also Duncan v. Wal-Mart La., L.L.C.,
863
F.3d 406, 409 (5th Cir. 2017).
To prove constructive notice, the plaintiff must show “that the
condition existed for such a period of time that it would have been discovered
if the merchant had exercised reasonable care.” La. Rev. Stat. Ann. §
9:2800.6(C)(1). The parties’ arguments here are focused on this period-oftime requirement—or, as Louisiana courts have called it, “the temporal
element.” Fountain v. Wal-Mart Stores, Inc., 19-669, p. 7 (La. App. 3 Cir.
3/18/20), 297 So. 3d 100, 106.
The Louisiana Supreme Court has explained that to prove the
temporal element, a plaintiff “must make a positive showing of the existence
of the condition prior to the fall” as well as the “additional showing that the
condition existed for some time before the fall.” White v. Wal-Mart Stores, Inc.,
97-0393, p. 4 (La. 9/9/97); 699 So. 2d 1081, 1084 (emphasis added).
Accordingly, to survive summary judgment, a plaintiff must satisfy the
“prerequisite” of putting forth “some positive evidence . . . of how long the
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condition existed prior to the fall.” Bagley v. Albertsons, Inc., 492 F.3d 328,
331 (5th Cir. 2007) (quoting Robinson v. Brookshires # 26, 33,713, p. 5–6 (La.
App. 2 Cir. 8/25/00),
769 So. 2d 639, 642). Louisiana courts—as well as the
district court here—have noted the heavy burden that the standard creates,
“ma[king] it almost impossible for a [p]laintiff to prove the temporal element
to show constructive notice.” Kimble v. Winn-Dixie La., Inc., 01-514, p. 10
(La. App. 5 Cir. 10/17/01),
800 So. 2d 987, 992; see also Fountain, 297 So. 3d
at 104.
Courts have expounded on the kinds of showings that do not satisfy
the temporal element. For instance, showing only that it had been raining and
that the area where the plaintiff slipped was in clear view of store staff was
not sufficient. Kennedy v. Wal-Mart Stores, Inc., 98-1939, p. 4 (La. 4/13/99),
733 So. 2d 1188, 1191 (explaining that plaintiff “presented absolutely no
evidence as to the length of time the puddle was on the floor before his
accident”). Nor was video that captured numerous shoppers walking into the
store from the rain forty minutes to an hour before the incident occurred.
Fountain, 297 So. 3d at 107–08. As the court summarized,
any evidence that it was raining, that an area in which a fall
occurred was visible to store personnel, and/or that [the
defendant] should have foreseen the hazard created by rain
puddles at or near the entrance of this high volume store
because it knew it was raining, is insufficient to support a
finding that it had constructive notice.
Id. at 109.
On the other hand, evidence clearly indicating that a hazardous
condition existed for some time satisfies the temporal element. In Bagley v.
Albertsons, a plaintiff who slipped and fell in a grocery store aisle created a
genuine dispute of material fact through the combination of testimony of a
firefighter who observed, after the plaintiff’s fall, that a wet substance
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covered an area extending between two aisles—suggesting that the substance
had leaked from a customer’s cart—and the plaintiff’s own testimony that
no one was in the aisle when she got there. 492 F.3d at 331. That evidence
clearly “impl[ied] th[e] passage of ‘some period of time.’”
Id. And in
Benitate v. Wal-Mart, the Louisiana court of appeal concluded that a plaintiff
who slipped on a smashed french fry satisfied the temporal element. 97-802,
p. 13 (La. App. 5 Cir. 12/10/97);
704 So. 2d 851, 856. She testified that the
area around the french fry was “black, as though carts had been pushed
around there”; additionally, an investigator testified that he had seen spilled
beverages in the same area on multiple occasions and that employees made
no effort to clean them up.
Id.
b. Summary judgment
Against that framework, the district court correctly determined that
the evidence fails to show either that Michaels staff had actual notice of the
condition of the area where Miller fell or that the floor had been wet for some
time. Miller averred only that it had been raining and that a wet floor sign and
mat had been placed at the right-side door—facts that show nothing about
how long it was wet in the spot where she slipped. Moreover, the only video
that captures Miller near the time of her fall begins just fifty-seven seconds
before, so it is incapable of showing that the floor had been wet “for some
time.”
Miller also presented deposition testimony in which the store manager
testified that the protocol during rainy weather was to put out a wet floor sign.
Miller argued that the existence of a store policy to mitigate danger from
rainwater proved notice. But as we have concluded before, the fact that staff
failed to place signs at a store entrance during a storm, even in contravention
of a store policy, does not establish the existence of a particular hazard, let
alone how long it existed. Pollet v. Sears Roebuck & Co., 46 F. App’x 226, 2002
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WL 1939917, at *7–8 (5th Cir. 2002) (citing Kennedy,
733 So. 2d at 1189 n.1,
1190–91). 1 If staff did ignore an internal policy, that fact may be relevant to
whether Michaels exercised reasonable care, but it is not relevant to notice.
See Fountain, 297 So. 3d at 108.
In sum, none of the evidence before the district court showed that
Michaels was on notice of a hazard where Miller slipped. The district court’s
conclusion that Miller failed to establish the existence of a genuine dispute of
fact as to notice was not error.
c. Hearsay
Next, Miller argues that the district court wrongly concluded that the
statement made by the Michaels staff member recounted in her affidavit was
hearsay and thus inadmissible at summary judgment. “We review a district
court’s decision to exclude evidence in connection with a summary judgment
motion under the abuse of discretion standard.” Warren v. Fed. Nat’l Mortg.
Ass’n, 932 F.3d 378, 383 (5th Cir. 2019). Hearsay is not competent summary
judgment evidence, Martin v. John W. Stone Oil Distrib., Inc.,
819 F.2d 547,
549 (5th Cir. 1987), unless its proponent can show that the statement can be
presented in an admissible form at trial, Patel v. Texas Tech Univ.,
941 F.3d
743, 746 (5th Cir. 2019).
Miller testified that after she fell, the staff member approached and
12. . . . told me that they had placed a mat on the tile floor
of the right entrance because rainwater and sleet [were]
being tracked into the store—the employee told me that
they did not put any mats or “wet floor” [signs] on the
left side entrance;
_____________________
1
“An unpublished opinion issued after January 1, 1996 is not controlling precedent,
but may be persuasive authority.” Butler v. S. Porter, 999 F.3d 287, 296 (5th Cir. 2021).
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13. The [Michaels] employee, who was wearing a red vest
and name tag[,] told me that the reason that they had a
mat on the floor and a “wet floor” sign on the right side
entrance was because they had been dry mopping the
floor from the water being tracked in and out of the store
by customers[.]
First, Miller argues that the statement is admissible under the hearsay
exception for excited utterances—that is, as “[a] statement relating to a
startling event or condition, made while the declarant was under the stress of
excitement that it caused.” Fed. R. Evid. 803(2). But even if we were to infer
that the staff member was startled by Miller’s fall, their statement related to
events that occurred before the incident—mopping and setting up signs—
not the incident itself. See United States v. Alarcon-Simi, 300 F.3d 1172, 1176
(9th Cir. 2002). Nor, alternatively, does Miller’s affidavit permit us to infer
that the employee was in a state of excitement about mopping and setting up
signs. See United States v. Cain,
587 F.2d 678, 681 (5th Cir. 1979) (explaining
that Rule 803(2) is inapplicable where declarant “had no reason to be in a
state of excitement”).
Miller also argues that the statement is admissible as a statement
against interest under Federal Rule of Evidence 804(b)(3). But that exception
requires her to demonstrate, among other things, that her witness would be
unavailable for trial. See United States v. Fernandez-Roque, 703 F.2d 808, 812
(5th Cir. 1983). Miller does not even try to make that showing.
Moreover, even if the statement were admissible based on a hearsay
exception—or could be made admissible at trial—it would still be
inadmissible for the more basic reason that it lacks relevance to the issue of
notice. See Fed. R. Evid. 401. The statement does not pertain to the condition
of the floor where Miller slipped. Unlike, for example, the testimony of the
firefighter in Bagley, it has no tendency to show how long a hazardous
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condition existed. See 492 F.3d at 331. The district court’s exclusion of the
staff member’s statement was not an abuse of discretion.
d. Spoliation
Last, Miller argues that Michaels failed to preserve video footage from
the thirty minutes that preceded her fall, and that, accordingly, she was
entitled to the inference that the footage would have established the temporal
element. We review the denial of a motion for sanctions based on spoliation
for abuse of discretion. Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015).
“Spoliation of evidence is the destruction or the significant and
meaningful alteration of evidence.” Van Winkle v. Rogers, 82 F.4th 370, 374
(5th Cir. 2023) (quoting Guzman,
804 F.3d at 713). If spoliation is found, and
was done in bad faith, the district court may permit the factfinder to draw the
inference that the spoliator destroyed or altered the evidence because it was
unfavorable.
Id. “Bad faith, in the context of spoliation, generally means
destruction for the purpose of hiding adverse evidence.” Id.; see also Fed.
R. Civ. P. 37(e)(2)(B) (if party “acted with the intent to deprive another
party of [electronically-stored] information’s use in the litigation,” district
court may permit an adverse inference).
Miller is not entitled to an adverse inference based on spoliation for
the simple reason that she has failed to show that any spoliation occurred. See
Guzman, 804 F.3d at 713. She assumes, without any apparent justification,
that because Michaels never produced the thirty minutes of footage
preceding her fall, it must have “accidentally erased or lost” it. But there is
no evidence to support that conclusion. Indeed, her briefing makes clear that
her qualm is not any destruction of the footage (i.e., spoliation), but Michaels’s
failure to produce the footage in response to her discovery requests.
On that point, we disagree with the district court’s conclusion that no
additional footage could be relevant to Miller’s claim because the footage of
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the store’s entrance did not clearly show her fall. We can imagine
circumstances where the thirty minutes of footage preceding Miller’s fall
would be relevant to the temporal element. The area captured in the footage
that Michaels did produce is very close to the spot where Miller slipped—
she fell two seconds after walking out of the frame. Because it is so close, we
need not speculate too much to conceive of ways that footage from the
preceding thirty minutes could help Miller. It could show another shopper
falling in the same area or walking through the doors while shaking a wet
umbrella. Such facts would permit the trier of fact to infer that the area where
Miller slipped was also wet. See Bagley, 492 F.3d at 331. Indeed, in another
case where footage showed the area near a slip and fall, we examined it closely
for indications of how long the hazard existed. McDowell v. Wal-Mart Stores,
Inc.,
811 F. App’x 881, 882, 884 (5th Cir. 2020).
Yet, because Miller moved in the district court for an adverse
inference based on spoliation, rather than to compel production of the
remainder of the footage, her right to receive that footage was never properly
before the district court. See GFI Comput. Indus., Inc. v. Fry, 476 F.2d 1, 3 (5th
Cir. 1973) (“Plaintiff’s remedy . . . for failure to produce pursuant to a Rule
34 request, was to file a motion under Rule 37(a) for an order requiring
defendant to . . . produce documents for inspection.”). There is no evidence
that spoliation occurred. The district court did not abuse its discretion in
denying Miller’s motion.
IV. CONCLUSION
We AFFIRM the district court’s grant of summary judgment to
Michaels.
11
