United States Court of Appeals

for the Fifth Circuit

____________

No. 23-30769

____________

Pansy Holladay; John Holladay, 

Plaintiffs—Appellants,

versus

Lowe’s Home Centers, L.L.C.; Monroe, L.L.C., 

Defendants—Appellees.

______________________________

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 3:23-CV-212

______________________________

Before King, Stewart, and Higginson, Circuit Judges.

Per Curiam:

*

In this trip and fall case, which occurred at a Lowe’s Home Centers, 

L.L.C. (“Lowe’s”) store, the district court granted summary judgment in 

favor of Lowe’s on grounds that Plaintiffs-Appellants, Pansy and John 

Holladay, failed to establish a genuine issue of material fact as to what caused 

Pansy’s trip and fall. Because we agree with the district court that the 

Holladays failed to establish, through competent summary judgment 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

August 7, 2024

Lyle W. Cayce

Clerk

Case: 23-30769 Document: 49-1 Page: 1 Date Filed: 08/07/2024
No. 23-30769

2

evidence, the causation element of their negligence claim against Lowe’s, we 

AFFIRM.

I. FACTUAL & PROCEDURAL BACKGROUND

According to Pansy’s deposition testimony, on November 8, 2021,

she and her husband John visited the Lowe’s store in Monroe, Louisiana for 

the purpose of purchasing a washing machine. When they approached the 

front of the store, they observed a display of twelve riding lawn mowers 

parked side by side in a row. For security purposes, the lawn mowers were 

connected by a cable, which ran along the backs of the mowers. 

Pansy testified that instead of approaching the entrance to the store, 

she walked through the narrow walkway between two of the mowers to look 

at them more closely. After bending down to read the label on one of the 

mowers, she stood back up and took a step with her left foot toward the store 

entrance. Then, when she attempted to take another step with her right foot,

she tripped and fell, breaking her left hip. 

Pansy explained during her deposition that just prior to her fall, “I got 

up and turned to go join [John], and that was when my toes barely hooked 

what I think was the cord. I, of course, wasn’t looking at it, but it felt like it 

had a give. It wasn’t—it didn’t feel like I hooked a tractor tire or anything.” 

When asked “And you don’t recall exactly what you tripped on?” Pansy 

replied, “I don’t know for sure,” later stating, “if I would have been looking 

at it, I wouldn’t have tripped on it . . . my toe just barely caught whatever it 

caught.” Later, when asked again what caused her to fall, Pansy replied, “I 

do not know what caught my toe . . . I just assumed it was the cable because I 

knew it wasn’t like the tractor tire.” Lowe’s counsel then responded, “But 

it could have been something else?” Pansy answered, “Could have been. I 

didn’t see anything else there, but I didn’t really look at the cable either.”

John did not observe Pansy trip and fall and there were no other witnesses to 

Case: 23-30769 Document: 49-1 Page: 2 Date Filed: 08/07/2024
No. 23-30769

3

the incident. Although there is video surveillance footage of the incident, 

Pansy’s feet and the area where she tripped and fell are obscured from view

by one of the lawn mowers in the display.

On September 12, 2022, the Holladays filed this lawsuit against 

Lowe’s in Louisiana state court. Lowe’s subsequently removed the case to 

federal court on grounds of diversity jurisdiction. See 28 U.S.C. § 1332. 

Lowe’s then moved for summary judgment, arguing that the Holladays had 

failed to establish the causation element of their tort claim under the 

Louisiana Merchant Liability Act. See La. Stat. Ann. § 9:2800.6. The 

district court agreed with Lowe’s and rendered summary judgment in its 

favor, dismissing the Holladays’ claims with prejudice. This appeal ensued. 

II. STANDARD OF REVIEW

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

judgment. Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020).

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

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.’” Id. (quoting FED. R. CIV. P. 56(a)). A dispute regarding a 

material fact is “genuine” if the evidence is such that a reasonable jury could 

return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). A plaintiff’s subjective beliefs, conclusory 

allegations, speculation, or unsubstantiated assertions are insufficient to 

survive summary judgment. See Carnaby v. City of Houston, 636 F.3d 183, 187 

(5th Cir. 2011); Clark v. Am.’s Favorite Chicken Co., 110 F.3d 295, 297 (5th 

Cir. 1997); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The 

party opposing summary judgment is required to identify specific evidence 

in the record and to articulate the precise manner in which that evidence 

supports his or her claim.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 

(5th Cir. 1998). “A panel may affirm summary judgment on any ground 

Case: 23-30769 Document: 49-1 Page: 3 Date Filed: 08/07/2024
No. 23-30769

4

supported by the record, even if it is different from that relied on by the 

district court.” Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012) 

(internal quotation marks and citation omitted).

“When jurisdiction is based on diversity, this [c]ourt must apply the 

substantive law of the forum state, here Louisiana.” Cent. Crude, Inc. v. 

Liberty Mut. Ins. Co., 51 F.4th 648, 652–53 n.4 (5th Cir. 2022) (citing Erie 

R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).

III. DISCUSSION

On appeal, the Holladays argue that the district court erred in holding 

that they did not satisfy the causation element of their negligence claim 

against Lowe’s. In support of their argument, they point to two pieces of 

evidence that they assert create a material question of fact regarding 

causation: (1) Pansy’s deposition testimony and (2) the video surveillance 

footage from Lowe’s that captured the incident. According to the Holladays, 

this evidence provesthat the security cable that ran along the back of the lawn 

mowers that were in the display caused Pansy to trip and fall. We disagree. 

Under Louisiana law, “every act . . . of man that causes damage to 

another obliges him by whose fault it happened to repair it.” Duncan v. WalMart La., L.L.C., 863 F.3d 406, 409 (5th Cir. 2017) (quoting La. Civ. 

Code art. 2315(A)). “Whether a claim arises in negligence under [Article] 

2315 or in premises liability under [Article] 2317.1, the traditional duty/risk 

analysis is the same.” Farrell v. Circle K Stores, Inc., 359 So.3d 467, 473 (La. 

2023) (citing La. Civ. Code arts. 2315, 2317.1). The duty/risk analysis

requires the plaintiff to “prove five separate elements: (1) the defendant had 

a duty to conform his conduct to a specific standard (the duty element); (2) 

the defendant’s conduct failed to conform to the appropriate standard (the 

breach element); (3) the defendant’s substandard conduct was a cause-infact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s 

Case: 23-30769 Document: 49-1 Page: 4 Date Filed: 08/07/2024
No. 23-30769

5

substandard conduct was a legal cause of the plaintiff’s injuries (the scope of 

duty element); and, (5) proof of actual damages (the damages element).” Id. 

(citation omitted).

As this court has acknowledged, Louisiana statutory law further 

refines the duty/risk analysis for merchants such as Lowe’s. See Duncan, 863 

F.3d at 409. Pursuant to the Louisiana’s merchant liability statute, merchants

“owe[ ] a duty . . . to exercise reasonable care to keep [their] aisles, 

passageways, and floors in a reasonably safe condition, which includes a 

reasonable effort to keep the premises free of any hazardous conditions which 

reasonably might give rise to damage.” Id.(internal quotation marks omitted) 

(citing La. Stat. Ann. § 9:2800.6(A)). To support a claim for damages 

against a merchant resulting from “an injury . . . or loss sustained because of 

a fall due to a condition existing in or on [the] premise[s],” the plaintiff must 

show that:

(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[; and]

(3) The merchant failed to exercise reasonable care.

Id. (citing La. Stat. Ann. § 9:2800.6(B)); see also Thompson v. Winn–Dixie 

Montgomery, Inc., 181 So.3d 656, 662 (La. 2015). The merchant is only liable 

if all three of these elements are proven along with each of the elements of 

the plaintiff’s cause of action. Id.; see also White v. Wal-Mart Stores, Inc., 699 

So.2d 1081, 1084 (La. 1997) (“[I]n addition to all other elements of his cause 

of action, a claimant must also prove each of the enumerated requirements of 

Section (B).”).

Case: 23-30769 Document: 49-1 Page: 5 Date Filed: 08/07/2024
No. 23-30769

6

“Whether there was a breach of the duty owed is a question of fact or 

a mixed question of law and fact.” Farrell, 359 So.3d at 474. “Louisiana 

courts apply the risk/utility balancing test to make this determination.” Id. 

(citation omitted). The Louisiana Supreme Court “has synthesized the 

risk/utility balancing test to a consideration of four pertinent factors: (1) the 

utility of the complained-of condition; (2) the likelihood and magnitude of 

harm, including the obviousness and apparentness of the condition; (3) the 

cost of preventing the harm; and, (4) the nature of the plaintiff’s activities in 

terms of social utility or whether the activities were dangerous by nature.”

Id. (citation omitted). 

In the proceedings below, the district court held that Lowe’s was 

entitled to summary judgment because the Holladays failed to supply the 

factual support necessary to meet their evidentiary burden required to prove 

the causation element of their negligence claim. We agree. As Lowe’s points 

out, Pansy’s deposition testimony reveals that, although she can speculate as 

to what caused her to trip and fall, she has never actually known what caused 

her to trip and fall and remains uncertain even now. Multiple statements from 

Pansy’s deposition such as “I do not know what caught my toe . . . I just 

assumed it was the cable” bely her assertion on appeal that she “has personal 

knowledge that she tripped on the security cable.” At most, she offers her 

speculation-based assumptions as to what caused her to trip and fall. But as 

this court has long held, “[a] plaintiff’s subjective beliefs, conclusory 

allegations, speculation, or unsubstantiated assertions are insufficient to 

survive summary judgment.” See Carnaby, 636 F.3d at 187. 

Moreover, while the Lowe’s video surveillance footage captured the 

event itself, the footage does not show precisely what caused Pansy to trip 

and fall because her feet and the area where she was standing when she fell

are obscured by one of the lawn mowers in the display. As the district court 

observed, even after watching the video surveillance footage, Pansy conceded 

Case: 23-30769 Document: 49-1 Page: 6 Date Filed: 08/07/2024
No. 23-30769

7

that she still did not know what caused her to trip and fall. When asked

“Now, when we spoke earlier, you said that you weren’t 100 percent sure 

what you tripped on. After watching the video, do you know what you tripped 

on?” Pansy replied, “I can’t tell from that.” Indeed, on appeal, the Holladays 

merely contend that “[t]he video of the accident depicts [Pansy] tripping at 

the back of the Lawn Mower Display, which is consistent with [Pansy]’s 

description of the location of the cable.” 

Given that the Holladays have offered no more in support of the

causation element of their negligence claim than obscured video footage and 

Pansy’s “speculation,” we agree with the district court that they have not

raised a genuine issue of material fact to defeat summary judgment. See 

Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (“[A]

party cannot defeat summary judgment with conclusory allegations, 

unsubstantiated assertions, or only a scintilla of evidence” (internal 

quotation marks and citation omitted)). Louisiana jurisprudence, and Fifth 

Circuit caselaw applying the same, further support our conclusion. See

Tomaso v. Home Depot, U.S.A., Inc., 2014-1467 (La. App. 1 Cir. 6/5/15), 174 

So.3d 679, 683 (“[The plaintiff] testified that at the time of the accident, he 

was not ‘a hundred percent sure’ what he tripped on. After falling, [the

plaintiff] learned of the presence of the zip tie and . . . once he saw the zip tie, 

he considered that to be the cause. However, speculation as to what caused 

an accident cannot supply the factual support necessary to show that a 

plaintiff would be able to meet his evidentiary burden of proof at trial.”); 

Mooty v. Centre at Westbank LLC, 10-792 (La. App. 5 Cir. 3/29/11), 63 So.3d 

1062, 1067–68 (“[The plaintiff] clearly stated that she did not know what 

caused her to fall . . . [t]hus, [her] testimony [fails to] create[] a genuine issue 

of material fact[.]”); Reed v. Home Depot USA, Inc., 37,000 (La. App. 2 Cir. 

4/9/03), 843 So.2d 588, 591 (“[The plaintiff’s]speculation as to what caused 

the accident cannot supply the factual support necessary to show that the 

Case: 23-30769 Document: 49-1 Page: 7 Date Filed: 08/07/2024
No. 23-30769

8

plaintiff would be able to meet her evidentiary burden at trial.” (emphasis in 

original)); Odom v. Colonel Sanders Ky. Fried Chicken, 93-1084 (La. App. 1 

Cir. 4/8/94), 636 So.2d 1027, 1029 (“Considering the evidence as a whole, 

and [the plaintiff’s] own testimony that she was unsure of the cause of her 

fall, we find that [she] failed to prove the accident was caused by a hazardous 

condition.”); Ruello v. JPMorgan Chase Bank, N.A., No. 20-895, 2021 WL 

5998576, at *3 (E.D. La. Dec. 20, 2021), (“[The plaintiff’s] testimony 

indicates. . . that when he sat up and looked back, the sprinkler head adjacent 

to the sidewalk was the only obstruction he noticed. He does not assert any 

other positive facts supporting the theory that he tripped on the sprinkler 

head [thus, his] sprinkler-head theory is purely speculative, and ‘proximate 

cause may not be established by speculation or conjecture[.]’”).Accordingly, 

we hold that the district court did not err in rendering summary judgment in 

favor of Lowe’s and dismissing the Holladays’ claims with prejudice. 

Sanders, 970 F.3d at 561.

IV. CONCLUSION

For the aforementioned reasons, the district court’s summary 

judgment in favor of Lowe’s is AFFIRMED.

Case: 23-30769 Document: 49-1 Page: 8 Date Filed: 08/07/2024