* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

July 5, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30103

Summary Calendar

PROMISE BAILEY; GLORIA BAILEY,

Plaintiffs-Appellants,

v.

FRED’S STORES OF TENNESSEE INC,

Defendant-Appellee.

Appeal from the United States District Court for the

Middle District of Louisiana, Baton Rouge

3:05-CV-1198

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellants Promise Bailey and Gloria Bailey appeal

the district court’s grant of summary judgment in favor of

Defendant-Appellee Fred’s Stores of Tennessee Inc. (“Fred’s Inc.”)

in this slip and fall case. To prevail under the governing

Louisiana law, the plaintiffs must prove the existence of an

unreasonably dangerous condition, and that Fred’s Inc. either

created the dangerous condition or had actual or constructive
2

knowledge of it prior to the incident. We AFFIRM. 

We review a grant of summary judgment de novo, using the same

criteria as the district court. Hanks v. Transcontinental Gas Pipe

Line Corp., 953 F.2d 996, 997 (5th Cir. 1992). Summary judgment is

appropriate if the record reflects “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.” FED. R. CIV. P. 56(c). A court’s

role at the summary judgment stage is not to weigh the evidence or

determine the truth of the matter, but rather to determine only

whether a genuine issue exists for trial. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). In diversity cases, such as

this one, the substantive law of the forum state controls. See

Erie R.R. Co. v. Tomkins, 304 U.S. 64, 78 (1938). This matter is

governed by Louisiana Revised Statute, title 9, section 2800.6,

“which places a heavy burden of proof on plaintiffs in claims

against a merchant for damages arising out of a fall on the

premises.” Jones v. Brookshire Grocery Co., 847 So.2d 43, 48 (La.

App. 2d Cir. 2003). 

On September 16, 2004, Ms. Bailey sustained injuries when she

slipped and fell in a store owned and operated by Fred’s Inc.

According to her deposition, Ms. Bailey saw an employee mopping an

area of the store when she first entered, but not the area where

she later fell. She further states that she was in a hurry and

wearing high heels, did not see anyone mopping in the area of her
3

fall, saw nothing on the floor where she fell, does not recall her

clothing being soiled or stained by the fall, and does not know

what caused her to fall. In Ms. Bailey’s own words, “All I know is

I was walking and I slipped. So I can’t tell you what the cause of

it was.” A store employee, Joann Massey, states that the area

where Ms. Bailey fell had been mopped, but that she does not recall

how much time passed between the mopping and the fall, did not

inspect the area after the fall, and does not know what the

condition of the floor was at the time Ms. Bailey fell. 

The Baileys filed this lawsuit in Louisiana state court, and

Fred’s Inc. removed the case to federal court. Fred’s Inc.

subsequently moved for summary judgment on November 16, 2006, and

the district court granted the motion after the plaintiffs failed

to respond within 20 days, dismissing the action with prejudice.

On the Baileys’ subsequent Motion to Vacate, the district court

reviewed their proposed opposition and reaffirmed the grant of

summary judgment. 

In order to prevail under the governing Louisiana statute, the

plaintiffs have the burden of proving that (1) the condition

presented an unreasonable, reasonably foreseeable risk of harm, (2)

Fred’s Inc. either created or had actual or constructive notice of

the condition, and (3) Fred’s Inc. failed to exercise reasonable

care. La. Rev. Stat. 9 § 2800.6(B). Because they would carry the

evidentiary burden of proof at trial, the plaintiffs must produce

factual support sufficient to establish that they will be able to
4

satisfy that burden in order to overcome Fred’s Inc.’s motion for

summary judgment. See Row v. Pierremont Plaza, L.L.C., 814 So.2d

124 (La. App. 2d Cir. 2002). 

Ms. Bailey fell while shopping in the Fred’s Inc. store and

sustained what were no doubt painful injuries, but she fails to

produce any evidence that a hazardous condition existed, let alone

the sort of unreasonable risk of harm, created by Fred’s Inc.,

necessary to establish liability under the governing Louisiana

statute. Indeed, as even Ms. Bailey concedes, the cause of her

fall is unknown. Any suggestion otherwise would be mere

speculation. See Robinson v. Brookshires #26, 769 So.2d 639, 642

(La. App. 2d Cir. 2000) (stating that “to avoid a summary judgment

motion mere speculation or suggestion is not enough to meet the

stringent burden imposed upon a plaintiff”). Given that there is

no genuine issue as to any material fact, Fred’s Inc. is entitled

to summary judgment as a matter of law. See FED. R. CIV. P. 56(c).

For the foregoing reasons, we AFFIRM the district court.