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this opinion should not be published and is not precedent except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

FOR THE FIFTH CIRCUIT

 

No. 01-31042

Summary Calendar

 

NICOLE TRACY HARRELL,

Plaintiff-Appellant,

versus

WAL-MART STORES EAST, INC.,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Middle District of Louisiana

(00-CV-916-M-1)

_________________________________________________________________

February 28, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges:

PER CURIAM:*

Nicole Tracy Harrell, who filed this negligence action arising

out of her fall in a Wal-Mart store, contests the summary judgment

granted Wal-Mart Stores East, Inc., including the denial of her

additional discovery request.

The denial of additional discovery for purposes of opposing

summary judgment, requested under Rule 56(f) of the Federal Rules

of Civil Procedure, is reviewed for abuse of discretion. E.g.,

Beattie v. Madison County Sch. Dist., 254 F.3d 595, 606 (5th Cir.
2

2001); Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518,

534 (5th Cir. 1999). As reflected in the district court’s opinion

concerning why, pursuant to Rule 56(f), additional discovery was

denied, the denial was not an abuse of its discretion. Harrell v.

Wal-Mart Stores East, Inc., No. 00-916-8-1, at 5-7 (M.D. La. 20

July 2001) (Harrell-USDC).

A summary judgment is reviewed de novo, applying the identical

standard used by the district court. E.g., Stewart v. Murphy, 174

F.3d 530, 533 (5th Cir.), cert. denied, 528 U.S. 906 (1999). Such

judgment should be granted if “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show 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). “We view the pleadings

and summary judgment evidence in the light most favorable to the

nonmovant.” Stewart, 174 F.3d at 533.

For this negligence action under Louisiana law, Harrell must

prove, inter alia, that: her fall was due to a condition that

“presented an unreasonable risk of harm to [her] and that risk of

harm was reasonably foreseeable”; and Wal-Mart “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). For constructive notice, Harrell must prove “the

condition existed for such a period of time that it would have been
3

discovered if the merchant had exercised reasonable care”. Id. at

§ 9:2800.6(C)(1).

For essentially the reasons stated in the district court’s

thorough and well-reasoned opinion, Harrell-USDC, at 7-10, we hold:

there is no material fact issue on whether a condition existed

presenting an unreasonable risk of harm or whether Wal-Mart either

created or had actual or constructive knowledge of any such

condition; and Wal-Mart is entitled to a judgment as a matter of

law.

AFFIRMED