In Ton v. Albertson’s, LLC, 50,212 (La. App. 2 Cir. 11/18/15), 2015 WL 7280625, the Louisiana Second Circuit affirmed summary judgment in favor of the defendant, Albertson’s where the plaintiff tripped in the parking lot while walking towards the entrance to the store.

During the discovery phase, the defendant deposed both the plaintiff and her spouse concerning the alleged accident, and neither could recall specifically where the accident occurred. In that connection, the defendant filed a motion for summary judgment asserting that plaintiffs could not meet their burden of proof as to causation. Plaintiffs’ counsel argued that photographs taken by the spouse two days after the fall reveal a crack that was the likely cause of the fall.

The Second Circuit held that speculation that the plaintiff tripped on a small crack along the expansion joint cannot provide the factual support necessary to demonstrate that the plaintiff would be able to meet their burden of proving causation at trial. The after-the-fact identification of a small crack along the expansion joint, particularly when the plaintiff could not recall where the fall occurred, was not circumstantial evidence sufficient to create a genuine issue for trial.