### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30946

JEAN GRAY; ROBERT GRAY, Plaintiffs - Appellants,
v. WAL-MART LOUISIANA, L.L.C., Defendant - Appellee.

Appeal from the United States District Court for the

Western District of Louisiana 1:09-CV-1523

Before JOLLY, DeMOSS, and STEWART, Circuit Judges. PER CURIAM: * IT IS ORDERED that the petition for panel rehearing is GRANTED and the opinion previously filed in this case is WITHDRAWN. The following opinion is substituted therefore: Plaintiffs-Appellants Jean and Robert Gray appeal the district court’s grant of sum m ary j u d g m e nt i n f avo r o f D e f

e n d ant-Appellee Wal-Mart Louisiana, L.L.C. (“Wal-Mart”). We AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D August 7, 2 012 Lyle W . Cayce Clerk

Pur suant to 5 TH C IR

. R. 47.5 , the court has det ermine d that thi s opinio n sho uld not be publ is hed * andis notprece dent e xcept unde r the l imite d ci rc um st anc es setfo rth in 5 TH C IR . R. 47 .5.4. Case: 11-30946 Document: 00511947601 Page: 1 Date Filed: 08/07/2012No. 11-30946

I. On September 1, 2008, Jean G r a y ( “Gray”) went to a Wal-Mart in Pineville, Louisiana. Severe storms caused by Hurricane Gustav blanketed the Gulf region that day. After shopping for about an hour, she slipped in a puddle of clear liquid while pushing her cart down an aisle. Gray alleges that when she

s lipped, her right foot slid backwards and caused her right knee to hit the ground. Shortly after Gray’s injury, Wesley Aguillard, a Wal-Mart supervisor, filled out an internal incident report that identified a hole in Wal-Mart’s roof as the “source” of the puddle. Later, when he was deposed, Aguillard testified that the incident report was based not on direct knowledge b u t instead on an “assumption,” which in turn was based on Aguillard’s knowledge of other leaks in Wal-Mart’s roof and the heavy rain outside. On July 21, 2009, Gray and her husb a n d f i l e d suit against Wal-Mart in Louisiana state court seeking to recover damages for injuries caused by the fall. They a s s e rt ed state law negligence claims, alleging that Gray slipped in a puddle of rainwater that leaked from a hole in the store’s roof. Wal-Mart removed the

case to federal court based on diversity jur i s d i c tion and filed a motion for summary judgment. The district court granted Wal-Mart’s motion for summary judgment on September 29, 2011, on the gr o u n d t h a t Appellants had failed to create an issue of fact as to whether they had satisfied the standard set forth in La. Rev. Stat. Ann. § 9:2800.6(B)(2) (2012). II. We review the grant of s ummary judgment de novo, applying the same standard used by the district court. Hil l v . Ca r ro ll Cnty., Miss. , 587 F.3d 230, 233 (5th Cir. 2009). Summary judgment is approp r iate when “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). “A fact is ‘material’ if its resolution in

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favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Tex. , 560 F.3d 316, 326 (5th Cir. 2009) (quoting Hamilton v. Segue Software, Inc. , 232 F.3d 473, 477 (5th Cir. 2000)). “An issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict for t h e n o n m o v ing party.” Id. (quoting Hamilton , 232 F.3d at 477). When reviewing motions for summary judgment, we “construe all facts and inferences in the light most favorable to the non-moving party

. . . .” Hernandez v

. Yellow Transp. , 670 F.3d 644, 650 (5th Cir. 201 2). III. Appellants’ claims are gover n ed by La. Rev. Stat. Ann. § 9:2800.6(B). Subsection (2) of § 9:2800.6(B) requires that plaintiffs a s s e r t i ng slip-and-fall claims against a merchant prove that “[t]he mer c h a n t e ither created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.” See Kennedy v. Wal-Mart Stores, Inc. , 733 So.2d 1188, 1190 (La. 2004) (“In a slip and fall case, the plaintiff’s burden of proof is set forth in

. . . [§] 9:2800.6.”). The district court granted summary judgment solely on the basis

1 that Appellants could not satisfy the standard set forth in La. Rev. Stat. Ann. § 9:2800.6(B), as Appella n t s w e re unable to show that Wal-Mart created the puddle or had either actual or constructive notice of the puddle before Gray fell. Appellants argue that summary judgment is improper because they have raised a fact issue as to whether Wal-Mart “created the hazard because its own roof leaked or it had actual knowledge of the hazard because it knew its r o of leaked.” To support their argument, Appellants point to the incident report

2

as s erting that the “source” of the puddle that injured Gray was a hole in WalMart’s roof.

K e n n e d y re quire s us to re

j ect Appel lants ’ argument that Artic le 2317 .1 of the Loui si ana Civil 1 Codegoverns this ca se. On appe al , Appe ll ant s do notargueth atWa l- Marthadcon struc ti ve noti ce of thepud dle

. 2
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The incident report does not establish an issue of fact regarding either the “actual notice” prong or the “created” prong of § 9:2800.6 (B)(2). With respect to the “actual notice” prong, neither the report nor any other evid e n c e presented by Appellants shows that Wal-Mart had actual knowledge of the leak before Gray’s accident occurred. With respect to the “created” prong, Appellants cite

no cases in which comparable evidence, by itself, e s t ab lished that a merchant had “created” a condition that injured a plaintiff. Instead, for plaintiffs suing a merchant under § 9:2800.6 (B)(2), courts have required proof that an employee’s action caused the plaintiffs’ injury. See Ross v. Schwegmann Giant Super Markets , 734 So. 2d 910, 913 (La. App. 1999) (“[T]he wording of [La. Rev. Stat. 9:2800.6 (B)(2)]

. . . means there must be proof that t h e m e r c h a n t is directly responsible for the spill or other hazardous condition. In this case, there is no evidence that would establish that the crab salad fo u n d i t s w a y onto the floor because of an act by a Schwegmann employee.”); Savoie v. Sw. Lous. Hosp. Ass’n , 866 So.2d 1078, 1081 (La. App. 2004) (merchant “created” hazard where plaintiff had slipped on wax-like substance on floor , a n d m e rchant was responsible for cleanin g floor). Here, then, in order to show that Wal-Mart “create[d]” the condition that caused Gray’s injury, Appellants m u s t create an issue of fact regarding whether a Wal-Mart employee was responsible for causing the leak that i nj u r e d Gray. But Appellants pointed neither the district court nor this court to any evidence showing that Wal-Mart’s employees were responsible for the holes in Wal-Mart’s roof, nor any evidence showing t h a t Wal-Mart was responsible for maintaining its own roof. In the absence of evidence connecting Wal-Mart employees to the roof leak, no issue of fact exists regarding whether Wal-Mart “created” the roof leak that injured Gray. See Ross , 734 So. 2d at 913. Appellants have t h e r efore failed to make the showing required under § 9:2800.6(B). Accordingly, even after we tak e a ll evidence in the light most favorable to Appellants, Wal-Mart is entitled to summary judgment as a matter

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of law. IV. We AFFIRM the district court’s judgment.

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