“Melting Ice Is Not Enough”: Fifth Circuit Refines Creation and Temporal Proof Under Louisiana’s Merchant Liability Act

Introduction

In Howard v. Brookshire Grocery Company (Super 1 Foods), No. 23-30448 (5th Cir. Nov. 6, 2025) (unpublished), the Fifth Circuit affirmed summary judgment against a grocery-store slip-and-fall plaintiff under Louisiana’s Merchant Liability Act (La. Rev. Stat. § 9:2800.6). The case arises from Lily Howard’s fall on a mixture of water and ice in a Lafayette supermarket’s meat aisle. The dispute centered on whether Brookshire created the hazardous condition or had actual or constructive notice before the fall. Store surveillance footage captured activity in the aisle beginning an hour before the incident and proved central to the court’s analysis.

The panel—Chief Judge Richman writing for the court, joined by Judge Ramirez, with Judge Graves dissenting—held that the record did not raise a genuine dispute of material fact that Brookshire created the hazard or had the requisite notice. In doing so, the court sharpened two recurring issues in Louisiana merchant liability litigation: what “creation” requires when plaintiffs proceed via a maintenance theory and what quantum and type of evidence satisfies the statute’s “temporal element” for constructive notice. The court also clarified how video that “blatantly contradicts” a plaintiff’s proposed inferences (Scott v. Harris) limits the fact issues that may reach a jury.

Summary of the Opinion

The district court granted Brookshire’s summary judgment motion, holding Howard failed to show the store created the spill or had actual or constructive notice. On de novo review, the Fifth Circuit affirmed, focusing on the statute’s second element—creation or actual/constructive notice—and declining to reach the statute’s other elements.

No “creation” by direct action: The court found no positive evidence that employees created the spill while unloading frozen/chilled items. Testimony indicated nearby fresh-meat coolers contained no ice and that ice did not fall off products stored in adjacent freezers; the video and photos showed the puddle isolated from the freezer line and dolly positions.
No “creation” via maintenance (Deshotel theory): The court distinguished cases where a merchant’s failure to fix a known hazard (e.g., a leaky roof) constitutes “creation” without a notice requirement. The record lacked evidence that Brookshire knew of a relevant ongoing condition (e.g., dripping boxes) tied to this spill.
“Slippery floor” theory forfeited and, alternatively, insufficient: Howard argued on appeal that non–slip-resistant flooring (or wax build-up) created the condition. The court held the argument was forfeited because it was not raised in opposing summary judgment. Even if considered, her expert did not identify a store-caused reason the floor lacked slip resistance, distinguishing cases where merchant practices (waxing, mopping, grease film) were causally linked to the slippery condition.
No actual notice: The store director walked through the area two minutes before the fall and testified he saw nothing. A “stutter step” theory was raised for the first time on appeal and, even if considered, was not borne out by the video.
No constructive notice (“temporal element” unmet): The court held that the size of the puddle and the fact the ice was melting did not constitute positive evidence of duration. Size alone, without evidence of source/mechanics, is insufficient; and melting ice, unlike melting ice cream/pie filling, does not itself indicate time on the floor because ice may already be partially melted when it reaches the floor.

Judge Graves dissented, finding genuine disputes of material fact as to “creation” based on testimony that frozen items were being stocked nearby, that the aisle was monitored for spills, and on video showing a dolly parked over the site and an employee stooping to pick up something minutes before the fall. He would have vacated and remanded.

Analysis

Precedents Cited and Their Influence

White v. Wal-Mart Stores, Inc. (La. 1997): White is the cornerstone of Louisiana’s Merchant Liability Act jurisprudence. It makes the statute’s three elements conjunctive and mandatory and articulates the constructive notice “temporal element”: a plaintiff must make a positive showing the condition existed for some time before the fall. The court here repeatedly channels White’s insistence that speculation cannot substitute for “positive evidence.”
Deshotel v. Wal-Mart La., L.L.C. (5th Cir. 2017): Deshotel recognizes two routes to proving “creation”: direct responsibility for the spill or responsibility arising from maintaining the area where the hazard manifests. There, evidence of a known leaky roof (buckets, signage, admissions, invoices) allowed a jury to find the merchant created the hazard, eliminating any notice requirement. The Howard court narrows the reach of Deshotel: generalized cleaning responsibilities or floor monitoring do not establish creation absent evidence of the specific hazard-causing condition known to the merchant and tied to the incident.
Duncan v. Wal-Mart La., L.L.C. (5th Cir. 2017): Emphasizes the need for “positive evidence” of how the hazard formed or how long it existed. The court in Howard relies on Duncan’s proof requirements to reject inferences based purely on conjecture or “common knowledge” where the record contains contrary testimony and video.
Bagley v. Albertsons, Inc. (5th Cir. 2007): Bagley is the leading example where a plaintiff met the temporal element at summary judgment: a spill’s identifiable trail extending into another aisle supported an inference of leakage over time from a cart, making constructive notice a jury question. Howard distinguishes Bagley: while the cleanup here covered a broad area, there was no evidence of the source/mechanics of the spill (no trail, no cart leakage, no cart-only occupancy as in Bagley), so the temporal element was not met.
Howard v. Family Dollar Store No. 5006 (La. App. 2 Cir. 2005): Louisiana authority holding the size of a spill alone is insufficient to establish temporal duration absent evidence of origin or mechanics. The court adopts Family Dollar’s approach to hold that the alleged expanse of the puddle in this case does not suffice to get to a jury on constructive notice.
Henry v. Wal-Mart Stores, Inc. (La. App. 3 Cir. 2000): Recognized that a substance “in the process of melting” (believed to be ice cream or pie filling) can support an inference of time on the floor. The Howard court limits that reasoning: melting ice itself does not show duration because ice may already be partially melted upon reaching the floor—an important refinement for cases involving frozen products.
Flowers v. Wal-Mart Inc. (5th Cir. 2023): Reaffirms that the temporal element can be a jury question, but only after the plaintiff satisfies the prerequisite of “some positive evidence” of pre-fall duration. The Howard court applies this gatekeeping function to conclude Howard offered no such evidence.
Bearb v. Wal-Mart La., Ltd. Liab. Corp. (5th Cir. 2013): Speculation and unsubstantiated statements do not satisfy the statutory burden. The court relies on this principle to reject inferences unsupported by the record.
Savoie v. Southwest Louisiana Hospital Ass’n (La. App. 3 Cir. 2004), Woodson v. Waffle House, Inc. (E.D. La. 2022), and Rowland v. Outback Steakhouse (W.D. La. 2024): Cases where plaintiffs survived summary judgment by linking merchant maintenance practices (wax build-up, mopping, grease film) to the slippery condition. Howard distinguishes them because the plaintiff’s expert could not identify any store-caused reason for the alleged lack of slip resistance.
Scott v. Harris (U.S. 2007): Where video “blatantly contradicts” a party’s version, courts adopt the version depicted by the video. The Fifth Circuit uses Scott to discount inferences that conflict with the surveillance footage, such as the asserted path from freezers/dollies to the puddle and an alleged “stutter step.”
Summary judgment and procedural authorities: Miller v. Michaels Stores, Inc. (5th Cir. 2024), Wapiti Energy, L.L.C. v. Clear Spring (5th Cir. 2024), Duffie v. United States (5th Cir. 2010), and Rollins v. Home Depot (5th Cir. 2021) inform the burden-shifting framework, the obligation to identify record evidence, the prohibition on weighing credibility at summary judgment, and forfeiture for arguments not raised below.

Legal Reasoning

1) “Creation” by Direct Action

To prove creation, a plaintiff must offer “positive evidence” that the merchant was directly responsible for the spill. The record contained several constraints:

Employees testified fresh-meat coolers had “no ice” and that products stored in nearby freezers did not shed ice or water during stocking; one employee described ice in some freezers but not accumulation falling off products.
The video and photos showed an isolated puddle that did not extend to the freezer line or to the prior positions of the dollies. The post-incident cleanup did not involve wiping within four feet of the freezers, and the employee cleaner testified “It wasn’t close to the freezer.”
While the dissent highlighted a moment where an employee stooped to pick something up, the majority found it ambiguous and emphasized the plaintiff never relied on that clip in district court or on appeal. Absent a record-based causal link, the court would not infer a spill from that act.

In short, facially plausible inferences from “common knowledge” (ice melts) cannot replace concrete evidence when contradicted by testimony and video. The court used Scott v. Harris to reject inferences the footage “blatantly contradicts.”

2) “Creation” via Maintenance Responsibilities (Deshotel)

Deshotel allows a plaintiff to establish creation by showing the merchant was responsible for maintaining the area where the hazard manifested—e.g., failing to fix a known leaky roof—eliminating the notice requirement. The Howard court construes this route narrowly:

General floor maintenance or assigning staff to monitor for puddles is insufficient.
The plaintiff must connect the accident to a known, relevant hazard-causing condition for which the merchant bore responsibility (e.g., recurrent leaks) and show the hazard in fact produced the condition (the puddle) at issue.
No such link existed here: the spill’s location and the video evidence undermined an inference that freezers or dolly boxes were the source, and generalized monitoring did not show knowledge of a specific hazard tied to this event.

This is an important limitation: Deshotel remains a path to a jury, but only when evidence shows the merchant’s knowledge of the very condition alleged to have created the hazard.

3) “Slippery Floor” Theory and Expert Proof

Howard argued on appeal that Brookshire created an unreasonably dangerous condition by using non–slip-resistant flooring or allowing wax build-up. The court found:

Forfeiture: The argument wasn’t raised in opposition to summary judgment; it was therefore forfeited.
Insufficiency on the merits: Even if considered, the expert identified a lack of slip resistance but declined to opine on the cause. Without evidence linking the slipperiness to merchant conduct (e.g., waxing, mopping, grease film), the cases allowing creation without notice (Savoie; Rowland; Woodson) do not apply.

4) Actual Notice

Howard claimed the store director had actual knowledge because he walked across the area and allegedly “stutter stepped” shortly before the fall. The court held the argument forfeited because it was not raised below and, in any event, the video did not show a slip or stutter step. Absent evidence that any employee saw the spill before the incident, actual notice failed.

5) Constructive Notice and the Temporal Element

Louisiana’s statute requires a plaintiff to make a positive showing that the condition existed for some time before the fall. The court emphasized:

Size alone is insufficient: Following Family Dollar, the magnitude of a puddle, or the breadth of post-incident cleanup, without evidence of source/mechanics, cannot establish duration.
Melting ice is different: Unlike melting ice cream/pie filling (Henry), melting ice does not establish time on the floor, as ice may be partially melted at the moment it reaches the floor. This is a notable refinement of melting-based inferences.
No trail or cart-only scenario: Unlike Bagley, there was no trail into another aisle or evidence isolating the aisle to one cart such that time could be inferred.

The dissent would have allowed a jury to infer duration from the hour-long video window and the lack of visible intervening causes, but the majority characterized that as “mere speculation” under Bagley and Allen, particularly since numerous patrons traversed the area without incident in that hour.

Impact and Practical Implications

Although unpublished, the decision is instructive for slip-and-fall litigation in Louisiana federal courts:

Video-driven adjudication: Scott v. Harris is increasingly determinative in retail cases. Plaintiffs should affirmatively use video to establish source/trail/timing; defendants can leverage it to defeat speculative inferences.
Deshotel narrowed: Plaintiffs invoking “creation” via maintenance must present evidence of the merchant’s knowledge of the particular recurring hazard (e.g., recurrent condensation, known freezer leaks, known dolly drip issues) and its causal connection to the spill—not just general cleaning practices or monitoring assignments.
Melting-evidence refinement: The court’s distinction between melting desserts (supporting time) and melting ice (not necessarily indicative of time) tightens proof of the temporal element in freezer/cooler cases. Plaintiffs should focus on trails, footprints, track marks, drying rings, employee reports, inspection logs, or other indicia of pre-fall existence.
Expert testimony must tie cause to merchant conduct: Opinions that floors are slippery will not carry a “creation” theory unless they connect slipperiness to the merchant’s practices (waxing, mopping residues, grease film, maintenance schedules). Otherwise, the claim sounds in notice, not creation.
Preservation matters: The forfeiture of the slip-resistance theory underscores the need to present all causation theories and their supporting evidence at summary judgment.
Retail risk management: Merchants should preserve video, document inspection/cleaning protocols, and train staff to contemporaneously note spill sources. Where recurrent conditions exist (e.g., condensation, leaky units), proactive remediation and documentation may be dispositive.

Complex Concepts Simplified

Merchant Liability Act (La. R.S. 9:2800.6): A plaintiff must prove all three elements: (1) an unreasonably dangerous, foreseeable condition; (2) the merchant created the condition or had actual/constructive notice before the incident; and (3) failure to exercise reasonable care. All are mandatory.
Creation: Two ways to prove it:
- Direct: An employee spilled or caused the hazard.
- Maintenance-based (Deshotel): The merchant was responsible for an ongoing, known condition (e.g., leaky roof) that created the hazard. If proven, the plaintiff need not prove notice.
Actual notice: The merchant actually knew about the condition before the fall (e.g., saw it, was told about it).
Constructive notice (“temporal element”): The condition existed long enough that, with reasonable care, the merchant would have discovered it. Plaintiffs need “positive evidence” of pre-fall duration (e.g., trails, footprints, drying edges, inspection gaps), not conjecture.
Scott v. Harris principle: If video clearly contradicts a party’s version, courts adopt the video’s depiction and do not accept competing inferences.
Forfeiture: Arguments not raised in the trial court (e.g., a new causation theory) generally cannot be raised for the first time on appeal.

The Dissent’s View and Points of Divergence

Judge Graves would have sent the case to a jury, emphasizing:

Testimony that ice existed in nearby freezers; frozen items were sometimes placed in the coolers; an employee monitored the area for spills—consistent with a foreseeable hazard.
Video showing a dolly parked directly over the eventual fall spot and an employee bending to pick something up minutes before the fall.
A manager’s comment about a “meat guy” and prior issues with wet-floor signage.
At summary judgment, courts must not weigh evidence but draw reasonable inferences for the nonmovant; the dissent believed the record supported inferences of “creation” or at least a fact question on maintenance-based creation.

The majority’s response is twofold: (1) those inferences were either not preserved or are speculative when compared against the video and uncontradicted testimony; and (2) Deshotel requires evidence of a known, relevant hazard-causing condition, not just general monitoring. The split showcases the fine line between permissible inference and impermissible speculation in video-documented premises cases.

Key Takeaways

Proof of “creation” requires more than proximity and possibility; plaintiffs must offer positive evidence that employees caused the hazard or that the hazard arose from a known, merchant-controlled condition.
General monitoring or cleaning responsibilities do not, by themselves, establish creation under Deshotel.
At summary judgment, the temporal element for constructive notice demands record evidence of pre-fall duration. Size of a spill is not enough without evidence of source/mechanics; melting ice is not a proxy for time.
Video evidence can defeat inferences that conflict with what the footage shows; plaintiffs should harness video affirmatively to show trails, duration, and source.
Slip-resistance opinions require a causal link to merchant maintenance practices to fit the “creation” pathway; absent that link, the claim reverts to a notice theory with its temporal proof requirements.

Conclusion

Howard v. Brookshire Grocery reinforces the disciplined evidentiary demands of Louisiana’s Merchant Liability Act at the summary judgment stage. The court’s refinements are most notable in two respects: first, narrowing Deshotel’s “creation by maintenance” route to situations with evidence of a known, relevant hazard-causing condition actually producing the spill; and second, clarifying that melting ice does not, without more, establish the temporal element for constructive notice. Coupled with an exacting application of Scott v. Harris to surveillance video, the opinion underscores that speculation, even when dressed as “common knowledge,” will not substitute for positive, record-based proof. For plaintiffs, the decision is a blueprint for what must be developed in discovery—causal mechanisms, merchant knowledge of recurring conditions, and temporal indicia. For merchants, it highlights the defensive value of video, targeted maintenance records, and training that emphasizes rapid detection and documentation of transient hazards.