“Where did this puddle come from?” is a simple question. However, the failure of a plaintiff to answer this question may result in dismissal of a case under the United States Court of Appeals for the Fifth Circuit’s recent opinion in Howard v. Brookshire Grocery Company.
On November 6, 2025, the Fifth Circuit affirmed a district court’s granting of a motion for summary judgment on grounds that the plaintiff failed to show a store operator either created the puddle or had actual or constructive notice of the puddle.[1]
Case Background
Lily Howard (“Plaintiff”) was shopping at a Super 1 Foods Store operated by Brookshire Grocery Company (“Brookshire”) in Lafayette, Louisiana when she fell on a mixture of water and ice.[2] Plaintiff brought a slip-and-fall claim under the Louisiana Merchants Liability Act, which requires proof of three (3) elements:
- the condition presented an unreasonable risk of harm, and that risk of harm was reasonably foreseeable;
- the merchant either created or had actual or constructive notice of the risk; and
- the merchant failed to exercise reasonable care.[3]
The appellate court agreed with the district court’s determination that the Plaintiff failed to show Brookshire either created or had actual or constructive notice of the puddle.
Evidence Considered by the Court
Approximately 19 minutes before the Plaintiff fell, two Brookshire employees were stocking frozen products into freezers in the exact area of the fall.[4] The cart holding the products sat over the area for nearly 9 minutes before the employees finished and left the area.[5]
However, Brookshire employees testified that ice does not accumulate on the products that were being unloaded, although there was no dispute that water was present on the floor at the time of Plaintiff’s fall.[6]
Majority Opinion vs. Dissent
The dissenting opinion by Judge Graves reasoned that, based on the surveillance video, the condition either existed for over an hour and numerous employees failed to remedy the condition or was created by the employees unloading frozen products.[7] The majority, disagreeing, noted that these inferences amounted to mere speculation or suggestion regarding the timing of the puddle’s appearance, which is insufficient to meet the burden under the applicable law.[8]
The court’s holding in Howard distinguishes the Plaintiff’s case from cases where the merchant failed to act to remedy a known risk,[9] the size and nature of a spill indicated that the spill was present for some time,[10] and the merchant failed to ensure its floors were safe.[11]
Practical Takeaways for Defendants
The Howard opinion provides favorable jurisprudence for defending against merchant liability claims. Ask the plaintiff, “where did this puddle come from?”
If the case is about a smear or a slick unknown substance, you should extrapolate from this case and ask, “where did this smear come from?” or “where did this substance come from?”
And, if the plaintiff cannot answer the question, then a defendant should move for dismissal.
Randy Cangelosi and Will Mathews are members of Kean Miller’s Casualty and Mass Tort Litigation group in the firm’s Baton Rouge office, where they manage complex litigation dockets and try cases for some of the nation’s leading companies. They defend clients at the local, regional, and national levels in a broad range of matters, including wrongful death, personal injury, industrial accidents, chemical exposure, products liability, medical malpractice, workers’ compensation and disability claims, as well as breach-of-contract and other business disputes.
[1] Howard v. Brookshire Grocery Co., No. 23-30448, 2025 WL 3111596 (5th Cir. Nov. 6, 2025).
[2] Id. at *1.
[3] La. R.S. § 9:2800.6(B); Miller v. Michaels Stores, Inc., 98 F.4th 211, 216 (5th Cir. 2024).
[4] Howard, 2025 WL 3111596,at *1.
[5] Id.
[6] Id.
[7] Id. at *10–14.
[8] Id. at *10 (citing Bagley v. Albertsons, Inc., 492 F.3d 328, 330 (5th Cir. 2007) (quoting Allen v. Wal-Mart Stores, Inc., 37,352 (La. App. 2d Cir. 6/25/03), 850 So.2d 895, 898–99)).
[9] Id. at *6–7 (citing Deshotel v. Wal-Mart La., L.L.C., 850 F.3d 742 (5th Cir. 2017)).
[10] Id. at *9–10 (citing Bagley, 492 F.3d 328; Henry v. Wal-Mart Stores, Inc., 99-1630 (La. App. 3 Cir. 3/1/00), 758 So.2d 327, 329).
[11] Id, at *7–8 (citing Savoie v. S.W. La. Hosp. Assoc., 2003-982 (La. App. 3 Cir. 2/25/04), 866 So.2d 1078).