640 F.Supp.3d 603
E.D. La.2022Background
- On Oct. 10, 2020, Woodson slipped and fell inside a Waffle House at 2500 Canal St., New Orleans, alleging injury from a slippery substance on the floor.
- Waffle House employees placed two bright yellow wet-floor signs at ~6:14 a.m., mopped the lobby from ~6:15–6:28 a.m., and the signs remained until 10:22 a.m.; Woodson entered at 8:04 a.m.
- Multiple patrons crossed the area before and after the fall; Woodson testified she did not see the hazard and did not know how long it had existed.
- Woodson’s expert, Dr. Marissa Orlowski, opined Waffle House used a cleaning solution that requires rinsing, that industry practice is a two-step mop-and-rinse, and that a single-pass mop could leave a residue that formed a slick coating causing the slip.
- Waffle House moved for summary judgment arguing Woodson cannot prove notice or failure to exercise reasonable care; Woodson relies on her expert and a theory that the merchant created the hazardous condition via its cleaning.
- The court conducted a preliminary Daubert-style review for summary-judgment purposes, declined to exclude the expert, and found genuine issues of material fact about creation of the condition and the reasonableness of the merchant’s conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether merchant had knowledge of the hazardous condition (created or had notice) | Woodson: condition was created by defendant’s mopping (no notice proof required if merchant created hazard) | Waffle House: no actual or constructive notice; signs and timing show no notice | Court: Genuine dispute exists—expert testimony could support finding the merchant created the condition; summary judgment denied |
| Whether merchant failed to exercise reasonable care (adequacy of warnings/cleanup) | Woodson: signage for wet floors does not warn of invisible residue; cleaning procedure may have been negligent | Waffle House: used two wet-floor signs and mopped, which courts have found reasonable | Court: Reasonableness is a fact question given claim of invisible residue; summary judgment denied |
| Whether plaintiff's expert evidence may be considered at summary judgment (Daubert issue) | Woodson: expert is qualified to testify to industry cleaning standards and potential residue hazard | Waffle House: expert methodology and sources are unreliable and opinions speculative; asks exclusion | Court: Only preliminary review performed; not excluding expert at this stage and will consider report for summary-judgment purposes; exclusion may be litigated later |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary-judgment burden standard)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary-judgment standard requiring no genuine issue of material fact)
- Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (courts should not weigh credibility at summary judgment)
- Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395 (Fifth Circuit on summary-judgment review)
- Gauk v. Meleski, 346 F.2d 433 (Fifth Circuit: negligence cases rarely resolved on summary judgment)
- Alcan Aluminum Corp. v. BASF Corp., 133 F. Supp. 2d 482 (W.D. La. court discussing limited use of Daubert at summary-judgment stage)