IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30746

Summary Calendar

BRENDA ADAMS,

Plaintiff – Appellant

v.

DOLGENCORP, L.L.C.,

Defendant – Appellee

Appeal from the United States District Court 

for the Middle District of Louisiana

U.S.D.C. No. 3:11-CV-784

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Brenda Adams appeals the district court’s grant of summary judgment 

to Dolgencorp, L.L.C. (“Dollar General”) for injuries she suffered after slipping 

on spilled lotion and falling in a Dollar General store. We AFFIRM. 

FACTUAL AND PROCEDURAL BACKGROUND

In May 2011, Brenda Adams visited a Dollar General store in Baton 

Rouge, Louisiana to purchase various items. The store opened at 

* 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

March 24, 2014

Lyle W. Cayce

Clerk

 

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No. 13-30746

approximately 8:00 a.m. and Adams arrived between 9:00 and 9:30 a.m. 

Adams alleges after turning a corner from one aisle to another, she slipped on 

a fluid substance later determined to be lotion. She claims the resulting fall 

caused injuries to her wrists, shoulders, and knees. 

She originally brought this suit in Louisiana state court. Dollar General 

removed the case to the United States District Court for the Middle District of 

Louisiana pursuant to the court’s diversity jurisdiction. Throughout the course 

of the litigation, the parties disputed the relevance and availability of the 

security camera footage taken the day Adams was injured in the store.

Pursuant to company policy, once a person has been injured in the store, Dollar 

General copies and preserves security camera footage from thirty seconds 

before the injured person entered the store and ending thirty seconds after that 

person left. Adams rests some of her argument on the preserved and existing 

footage, but she also has arguments related to unavailable footage. The district 

court granted summary judgment to Dollar General. In addition, the district 

court three times denied Adams leave to amend her complaint to add claims of 

spoliation of evidence against individual employees and later against Dollar 

General for not maintaining all of the security camera footage Adams wished 

to review. Adams appeals. 

DISCUSSION

We review a district court’s grant of summary judgment de novo. 

Summary judgment is proper “if the movant shows there is no genuine dispute 

as to any material fact.” Fed. R. Civ. P. 56(a). A genuine dispute of material 

fact exists only if “a reasonable jury could return a verdict for the nonmoving 

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A district 

court’s decision to deny a motion for leave to amend is reviewed for an abuse 

of discretion. S&W Enter., L.L.C. v. SouthTrust Bank of Alabama, NA, 315 

F.3d 533, 535 (5th Cir. 2003).

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A. Negligence

To prevail in a negligence claim under Louisiana law against Dollar 

General, Adams must prove: 

(1) The condition presented an unreasonable risk of harm to the 

claimant and that risk of harm was reasonably foreseeable.

(2) The merchant either created or had actual or constructive 

notice of the condition which caused the damage, prior to the 

occurrence.

(3) The merchant failed to exercise reasonable care.

LA. REV. STAT. § 9:2800.6(B).

“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 exercised reasonable care. The 

presence of an employee of the merchant in the vicinity in which 

the condition exists does not, alone, constitute constructive notice, 

unless it is shown that the employee knew, or in the exercise of 

reasonable care should have known, of the condition. 

Id. § 9:2800.6(C)(1). 

The Louisiana Supreme Court has interpreted this statute to mean that 

the plaintiff has the burden of showing the dangerous condition existed for 

some discrete period of time; it is not enough simply to show that the condition 

existed before the plaintiff’s injury. White v. Wal-Mart Stores, Inc., 699 So. 2d 

1081, 1084 (La. 1997). 

The summary judgment evidence consisted primarily of the testimony of 

Yolanda Hunter, a Dollar General employee who was working in the 

immediate vicinity of Adams’ fall, and the security camera footage partially 

showing the area near where Adams slipped and fell. The footage does not

show the portion of the floor where the lotion spilled, nor does it actually show 

the spilled lotion. Hunter stated that she inspected all of the aisles and opened 

the store before 8:00 a.m., at which time there was no lotion on the floor. 

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Further, she stated she was working very near the area where Adams fell and 

that she was not aware of the spilled lotion until she and another employee 

helped Adams to her feet. 

Adams argues that the presence of Hunter and other Dollar General 

employees in the immediate vicinity of the spilled lotion is enough to create a 

genuine issue of material fact as to whether Dollar General had actual or 

constructive notice and as to whether those employees were exercising the 

reasonable care required under Section 9:2800.6(C)(1). She further argues 

that the security camera footage showing Adams walking to the aisle where 

she was injured indicates the lotion must have been on the floor for long enough 

to be discovered. 

Dollar General argues this is not enough to show actual or constructive 

notice, because the “presence of an employee . . . in the vicinity in which the 

condition exists” is not enough to support a finding of constructive notice, 

“unless it is shown that the employee knew, or in the exercise of reasonable 

care should have known, of the condition.” See LA. REV. STAT. § 9:2800.6(C)(1). 

Dollar General further argues that the security camera footage does not 

actually show the area of the floor where the lotion was spilled, but that even 

if it did, footage merely showing the presence of the condition is not enough to 

show it was there long enough to be discovered. We agree. 

Adams’ argument that the employees’ presence in the immediate vicinity 

of the spilled lotion gives rise to an inference of constructive notice fails under 

the plain language of Section 9:2800.6(C)(1). She further failed to present any 

evidence of how or why the lotion was spilled, much less any showing that 

Hunter or any other Dollar General employee were exercising less than 

reasonable care in not discovering it. See id. With respect to Adams’ argument 

that the available security camera footage should give rise to an inference that 

the lotion was on the floor long enough to be discovered, we find one of our 

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unpublished opinions instructive. See Taylor v. Wal-Mart Stores, 464 F. App’x 

337 (5th Cir. 2012). In Taylor, security camera footage showing a particular 

area of a store, which captured a time period of one hour prior to the plaintiff’s 

fall, revealed that one person had shuffled past the allegedly wet portion of the 

floor. Id. at 338-39. We noted that the footage did not clearly show any liquid 

on the floor, but that it did show numerous other individuals passing through 

the area without incident. Id. “Mere speculation or suggestion is not sufficient 

to meet this burden, and courts will not infer constructive notice for purposes 

of summary judgment where the plaintiff’s allegations are no more likely than 

any other potential scenario.” Id. at 339 (quoting Bagley v. Albertsons, Inc., 

492 F.3d 328, 330 (5th Cir. 2007)). We accept that analysis and find it to be 

applicable here.

Here, where the footage does not show the substance nor the area of the 

floor on which the substance was spilled, we conclude the temporal inference 

Adams seeks to draw from the footage would be inappropriate. See id. Adams 

has failed to produce evidence showing Dollar General had actual or 

constructive notice of the spilled lotion or any evidence showing when or how 

the lotion was spilled. We conclude the district court did not err by granting 

summary judgment to Dollar General on Adams’ negligence claim. 

B. Denial of Leave to Amend

Adams filed three separate motions for leave to amend her complaint. 

The first two were attempts to add a spoliation of evidence claim against

individual employees as defendants. The third sought to add the claim of 

spoliation of evidence against Dollar General due to the security camera 

footage preservation policy and because it no longer had custody of the lotion 

bottle. Adams argues that Dollar General’s footage retention policy resulted 

in the deletion of video that would have shown when and how the lotion was 

spilled. If she had the now-deleted footage, Adams argues, she could bear her 

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burden of showing enough passage of time to support her claim of constructive 

notice. 

The first motion was denied without prejudice for failure to allege all the 

elements of spoliation against individual defendants, but not Dollar General.

The second was denied with prejudice for substantially the same reasons – but 

against different individual defendants – and the additional reason that higher 

scrutiny is applied to amendments that would destroy complete diversity due 

to the Louisiana residency of the added individual defendants. The third

sought to bring the spoliation of evidence against Dollar General and was 

denied because it was filed ten months after the deadline for amended 

pleadings in the scheduling order and the district court concluded it failed to 

meet the “good cause” standard for altering scheduling orders. See FED. R. CIV.

P. 16. 

In Louisiana, the “tort of spoliation of evidence provides a cause of action 

for an intentional destruction of evidence carried out for the purpose of 

depriving an opposing party of its use.” Burge v. St. Tammany Parish, 336 

F.3d 363, 374 (5th Cir. 2003). In her first two amended complaints, Adams 

alleges only that various individual defendants permitted important evidence 

to be destroyed. Neither of Adams’ first two amended complaints allege facts 

showing any individual defendant intentionally destroyed the footage “for the 

purpose of depriving [Adams] of its use.” See id. We conclude the district court 

did not abuse its discretion by denying Adams’ first two motions for leave to 

amend her complaint, since both proposed amendments fail to properly state a 

claim for spoliation. 

Adams filed her third amended complaint on February 15, 2013 – nearly 

ten months after the scheduling order’s April 25, 2012 deadline for amended 

pleadings. Adams then alleged spoliation and impairment of a civil claim 

against Dollar General, after having not included it in her previous two 

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amended pleadings. The district court denied this motion because Adams 

could not show “good cause” for her failure to assert these claims within the 

deadlines set by the scheduling order. See FED. R. CIV. P. 16. The district court 

applied the four-factor test we used in Reliance Ins. Co. v. La. Land & Exp. Co.. 

See 110 F.3d 253, 257 (5th Cir. 1997). The four factors are: “(1) the explanation 

for the failure to [add two claims against Dollar General]; (2) the importance 

of the testimony; (3) potential prejudice in allowing the testimony; and (4) the 

availability of a continuance to cure such prejudice.” Id. The district court 

applied these factors, concluding only the second factor weighed in Adams’

favor. The district court determined Adams was aware of what footage was 

available and what footage was not well before the deadline; the defendant 

would be prejudiced by having to undertake yet more discovery; and a 

continuance would unnecessarily delay the resolution of the litigation. The 

district court did not abuse its discretion by denying Adams’ third motion based 

on these conclusions. 

AFFIRMED. 

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