A Video is Worth a Thousand Words--Video Footage Defeats Plaintiff's Efforts to Avoid Summary Dismissal of Her Lawsuit against Wal-Mart
Hubert v. Wal-Mart Louisiana, LLC, involved a slip-and-fall at a Wal-Mart store. Wal-Mart surveillance camera footage captured a male shopper wearing a white baseball cap pushing a grocery cart down the dairy aisle. It showed the shopper travel away from the camera and move further down the aisle before deciding to turn his cart around and retrace his steps at 7:30:42 p.m. It then showed him push his cart a short distance and two seconds later stop the cart when he noticed something dripping from his cart onto his leg and the floor. Next, the shopper immediately pushed his cart out of the aisle and proceeded without his cart to find a Wal-Mart employee (7:30:51-52 p.m.). Seconds later Jessica Hubert fell in the exact location where the male shopper appeared to have noticed the spilled item—salsa from a broken jar—47 seconds earlier.
Hubert filed suit in Louisiana state court against Wal-Mart seeking damages for injuries she allegedly sustained when she fell. Wal-Mart removed the case to federal court on diversity jurisdiction grounds, following which it filed a motion for summary judgment. Hubert opposed the motion.
The federal court judge, Judge Shelly Dick of the Middle District of Louisiana, first noted that Hubert’s claims were controlled exclusively by Louisiana’s “Merchant Liability Statute,” La. R.S. 9:2800.6 (pdf). The issue therefore was whether Hubert had proven that Wal-Mart had constructive notice of the spill as required by La. R.S. 9:2800.6(B)(2) & (C)(1), so as to avoid summary dismissal of her claims. Constructive notice is defined under the law to include a mandatory temporal element. To prove constructive notice, Hubert had to establish through positive evidence that the condition existed for some period of time sufficient to place Wal-Mart on notice of its existence.
Hubert made a number of arguments in an effort to prove constructive notice. She argued that the presence of a Wal-Mart employee in the immediate area of the spill prior to the fall established constructive notice and that a grocery cart’s wheel marks through the spill implicitly established that the salsa had been on the ground a sufficient period before the fall. Hubert also relied on a U.S. Fifth Circuit decision that she claimed supported her position because there the court recognized that the temporal showing in a slip-and-fall case could be based upon a reasonable inference drawn from circumstantial evidence, such as the size and nature of the spill.
Judge Dick rejected each of Hubert’s arguments and granted Wal-Mart’s summary judgment motion. In reaching its decision, the Court emphasized that Louisiana’s Merchant Liability Statute expressly provides that the mere presence of a store employee in the vicinity where the condition exists does not, by itself, constitute constructive notice. And the evidence presented by Hubert did not otherwise support a finding of constructive notice. Rather, surveillance video showed that the employee was not actually in close proximity to the spill and the spill only existed for around fifty seconds prior to the fall. Hubert also admitted that the store employee had his back turned to the spill and was preoccupied with performing work tasks shortly before the fall. Regarding the grocery cart tracks through the salsa, the Court noted that the video of the male shopper showed that he created the spill and then made the marks with his cart, which confirmed that the salsa was only on the ground for less than a minute prior to Hubert’s fall. This evidence overcame any possible inference that the temporal element of the statute was satisfied.
Take-Away: Strong video surveillance evidence documenting the exact timing of a spill and a patron’s subsequent slip and fall in the area of the spill can overcome much softer evidence or argument of a plaintiff such as the presence of a store employee in the “immediate vicinity” of the spill or any inferences drawn from the presence of buggy track marks through the spilled area.
This article was co-authored by Chris Irwin, an associate at Irwin Fritchie Urquhart & Moore LLC.