IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-31193

DONNA L. CATES

Plaintiff - Appellant

v.

DILLARD DEPARTMENT STORES, INC.; ABC INSURANCE COMPANY

Defendants - Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Donna Cates (“Cates”) sued Dillard Department Stores, Inc. (“Dillard”) in

Louisiana state court after she slipped and fell in a Dillard store, alleging that

her fall was caused by a plastic “wet floor” sign that an employee had negligently

left in a high-traffic area of the store. After removal, the district court granted

summary judgment to Dillard, which Cates appeals. Because there is a genuine

issue of material fact as to whether Dillard created an unreasonable risk of harm

and whether it failed to exercise reasonable care, we vacate the district court’s

judgment and remand for proceedings not inconsistent with this opinion.

United States Court of Appeals

Fifth Circuit

F I L E D

October 21, 2010

Lyle W. Cayce

Clerk

Case: 09-31193 Document: 00511270855 Page: 1 Date Filed: 10/21/2010
No. 09-31193

I.

On December 22, 2006, Donna Cates and her mother were walking

through the cosmetics area of a Dillard department store when Cates fell,

allegedly because she stepped on a “wet floor” sign that had fallen over and was

lying flat in the aisle. The store’s maintenance employee, Robert Williams,

testified that he could not recall when the sign had been left in the area.

Williams testified that his normal procedure, three or four days a week,

was to mop the floor before the store opened, placing wet floor signs near the

areas he had mopped, and that he always tried to gather the signs (after

checking that the floor had dried) before the store opened for the day. He also

testified that he probably would not have had time to wet-mop on the morning

in question because the store opened early for Christmas shopping (two hours

before the accident); as such, it was possible the sign had been left from the day

before. He testified that it is also possible the sign was left up from a spot-mop

(i.e., mopping up a spill), which could have occurred at any time. Witnesses

testified that the store was especially crowded on the day of the accident because

of the holiday season, that the cosmetics section was the busiest part of the

store, and that there were extra display cases in the cosmetics section that

partially blocked the main aisles.

Cates sued in Louisiana state court. After removal, the district court

granted summary judgment to Dillard, which Cates timely appealed.

II.

We are asked to decide whether the district court properly granted

summary judgment to Dillard on Cates’s premises liability claim. A grant of

summary judgment is reviewed de novo. Bagley v. Albertsons, Inc., 492 F.3d 328,

330 (5th Cir. 2007). Summary judgment is proper “if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is

no genuine issue as to any material fact and that the movant is entitled to

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judgment as a matter of law.” FED. R. CIV. P. 56(c)(2). We resolve doubts and

draw reasonable inferences in favor of the nonmovant, Cates. Langhoff Props.

LLC v. BP Prods. N.A., Inc., 519 F.3d 256, 260 (5th Cir. 2008). Under this

standard, we conclude that a genuine issue of material fact exists as to whether

the wet floor sign in question presented an unreasonable risk of harm and

whether Dillard exercised reasonable care.

This dispute is governed by Louisiana’s premises liability statute, which

provides that a claimant must prove (1) the condition that caused the injury

created an unreasonable risk of harm, (2) the merchant created or had

constructive notice of the condition, and (3) the merchant failed to exercise

reasonable care. LA. REV. STAT. ANN. § 9:2800.6 (2009).

*

 The statute provides in relevant part that:

*

A. A merchant owes a duty to persons who use his premises to exercise

reasonable care to keep his aisles, passageways, and floors in a

reasonably safe condition. This duty includes a reasonable effort to keep

the premises free of any hazardous conditions which reasonably might

give rise to damage.

B. In a negligence claim brought against a merchant by a person

lawfully on the merchant’s premises for damages as a result of an injury,

death, or loss sustained because of a fall due to a condition existing in or

on a merchant’s premises,the claimant shall have the burden of proving,

in addition to all other elements of his cause of action, all of the

following: 

(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. In determining

reasonable care, the absence of a written or verbal uniform cleanup or

safety procedure is insufficient, alone, to prove failure to exercise

reasonable care.

C. Definitions:

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Beginning with the second element, Cates clearly has not produced

sufficient evidence to show that Dillard had actual or constructive notice of a

collapsed wet floor sign. Under Louisiana law, constructive notice requires a

showing that the dangerous condition existed for “some time period” prior to the

fall. White v. Wal-Mart Stores, Inc., 97-0393 (La. 9/9/97); 699 So. 2d 1081, 1084.

Cates submitted no evidence as to the length of time that the sign had been

collapsed. However, Cates further argues that the upright wet floor sign

presented an unreasonable risk of harm. Because a Dillard employee placed the

sign on the floor and thus created the condition at issue, Cates met her burden

on the element of notice. See Ruby v. Jaeger, 1999-1235, p. 4 (La. App. 4 Cir.

3/22/00); 759 So. 2d 905, 907, writ denied, 2000-1396 (La. 6/30/01); 766 So. 2d

542.

We next address whether an upright wet floor sign may present an

unreasonable risk of harm. Under Louisiana law, the relevant hazardous

condition can be something other than the actual item that directly caused the

plaintiff to fall. See, e.g., Cole v. Brookshire Grocery Co., 2008-1093, p. 5 (La.

App. 3 Cir. 3/4/09); 5 So. 3d 1010, 1014, writ denied, 2009-0728 (La. 5/15/09); 8

So. 3d 589; Franovich v. K-Mart Corp., 94-1039, p. 6–8 (La. App. 5 Cir. 3/28/95);

653 So. 2d 695, 698. Other courts have held that a genuine issue of fact exists

as to whether a standing wet floor sign is a hazard when placed in heavily

trafficked areas of a merchant’s premises, particularly during times when it is

known that the area will be crowded. See Am. Multi-Cinema, Inc. v. Brown, 679

(1) “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.

LA. REV. STAT. ANN. § 9:2800.6 (2009).

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S.E.2d 25, 29–30 (Ga. 2009); Luthy v. Denny’s, Inc., 782 S.W.2d 661, 663 (Mo. Ct.

App. 1989). Cates presented deposition testimony that Dillard employees knew

the cosmetics section of the store would be especially crowded on the day of her

injury. Mr. Williams testified that the area “swamps” during the holiday season.

There was also testimony that multiple display cases made the walkways

narrow; that a person approaching the location of the fallen sign from at least

one direction would not be able to see the sign even when it was upright; that

wet floor signs can become tripping hazards when improperly placed; and that

it was foreseeable based on the sign’s location that it would be contacted and

collapse. In view of this testimony, we conclude that Cates presented a genuine

issue of fact as to whether the upright wet floor sign presented an unreasonable

risk of harm and whether the risk of harm was reasonably foreseeable.

For similar reasons, we are persuaded that there exists a genuine issue of

fact as to whether Dillard exercised reasonable care. If, as Cates alleges, the

store lacked a uniform cleanup or safety procedure, that alone is insufficient to

prove Dillard’s failure to exercise reasonable care. LA. REV. STAT. ANN.

§ 9:2800.6(B)(3) (2009). However, Cates presented further evidence concerning

the congestion in the cosmetics area on the day of the accident, the extra display

cases placed along the aisles, and the amount of time that the sign likely had

been standing in the cosmetics area. This evidence was sufficient to raise triable

issues of fact.

III.

We emphatically do not hold that a merchant breaches its duty of care by

placing notice of slippery floor conditions on a floor that is slippery. But in this

case the evidence was sufficient for a reasonable jury to infer that a “wet floor”

sign had been left standing long after the floor had dried in an area known to be

heavily congested, that this condition presented an unreasonable risk of harm,

and that Dillard failed to exercise reasonable care. The judgment of the district

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court is VACATED, and the case is REMANDED for proceedings not

inconsistent with this opinion.

VACATED and REMANDED.

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