Exceptions to the Professional Rescuer Doctrine Break the Glass On Summary Judgment

An Alexandria police officer brought suit for damages against Burkes Outlet Stores (“Burkes”) for injuries sustained while responding to a call concerning a suspected shoplifter at the store. At the time of the incident, the store had two glass doors; the “right”-side door was locked, forcing pedestrian traffic to enter and exit through the “left”- side door. While in pursuit of the suspect, the officer ran into the locked right glass door, which shattered causing him to sustain severe injuries. In response to the suit, Burkes sought to have the case dismissed on the ground that the officer’s claim was precluded by the professional rescuer doctrine.

Under the professional rescuer doctrine, the general rule is that professional rescuers such as the plaintiff police officer assume the risk of injuries incurred in the performance of their duties and therefore are not entitled to bring a claim for damages. There are, however, two exceptions to this doctrine: (1) a professional rescuer may recover for injuries resulting from risks independent of the emergency or problem he has assumed the duty to remedy; or (2) the risk is either so extraordinary that it cannot be said that the parties intended for the rescuers to assume them, or the defendant’s conduct is so blameworthy that tort recovery should be imposed for the purposes of punishment or deterrence. On the basis of this doctrine the trial court dismissed the lawsuit and the officer appealed.

The appellate court reinstated the case for two reasons. First, the court reasoned that under Louisiana’s duty-risk analysis, there was a genuine dispute of material fact as to whether Burke’s actions in locking one side of the enter/exit doors constituted an unreasonable risk of harm. Second, the court reasoned that the Officer was not, as a matter of law, precluded from bringing this action under the professional rescuer doctrine. Rather, there was a genuine dispute of material fact as to whether recovery was barred by the professional rescuer doctrine, or whether the situation fell into one of the doctrine’s exceptions. 

Take-Away: The professional rescuer doctrine will not always shield companies from liability to police officers or other professional rescuers who sustain personal injuries while responding to an emergency on a store owner’s premises.

This article was co-authored by Gretchen Fritchie, an associate at Irwin Fritchie Urquhart & Moore LLC. 

No Duty to Warn of Known Hazard

Jonathan Goodie was employed by Weatherford International, Ltd., which was contracted by Exxon Oil Corporation to perform services aboard the Lena, an off-shore oil platform owned by Exxon. Exxon also contracted with West Coast Logistics for logistical support. Under that contract, West Coast was to provide a safety observer on the Lena. On May 23, 2013, Goodie and a Weatherford crew chief, John Bourgeois, were directed by two other Weatherford employees, Shane Comeaux and Shad Delhomme, to remove a tree cap in the lower well bay. When Goodie got to the tree cap, he discovered that it weighed around 112 pounds. Weatherford had a rule that required employees to use machinery to lift objects in excess of 50 pounds. By radio, Goodie requested a crane to lift the treat cap. Comeaux radioed back that Goodie and Bourgeois should “manhandle” the tree cap. Bourgeois freed the cap and handed it to Goodie, who carried it for a bit before dropping it due to his bad back. The cap fell onto some equipment and Goodie rushed to retrieve it. Again, Goodie dropped the cap because of his back. On August 2, 2013, Goodie filed suit against Exxon and West Coast alleging that they were negligent, failed to properly train their employees, failed to use proper equipment, and failed to warn and/or remedy a premises defect.

Exxon and West Coast filed motions for summary judgment. In Exxon’s motion, Exxon asserted that Weatherford (Goodie’s employer) was an independent contractor and Exxon had no authority to supervise Weatherford employees. The court held that Exxon did not retain operational control. The court rejected Goodie’s contention that Exxon’s control was demonstrated by having a “company man” on the platform who failed to intervene. Further, the court held that Exxon was not liable for failing to warn that the tree would require a mechanical lift because Goodie was aware that the tree cap was too heavy to be lifted manually. Ultimately, the court held that “plaintiff has not identified evidence that Exxon ever specifically involved itself in the safety of a crane operation or tree cap removal, other than acting as a passive observer.”

 With respect to West Coast, the court held that there was no duty to provide third parties with personnel who would intervene when a safety issue arose. Further, the court noted that Goodie was ordered to remove the tree cap by Weatherford employees. The court also rejected Goodie’s argument that West Coast had a duty to provide a crane to lift the tree. Goodie argued that Paul Ingle, the West Coast safety observer on duty, should have intervened. The court disagreed, again noting that there is no duty to warn of a known hazard.

Take-Away: Where the owner of an oil rig does not involve itself in the rig’s operation beyond the role of passive observer, the owner has no duty to employees of independent contractors who are performing services on the rig. Further, this case reiterates the long-standing rule that there is no duty to warn of a known hazard.

This article was co-authored by Cami Capodice, a partner at Irwin Fritchie Urquhart & Moore LLC. 

Rain Keeps Coming Down On Me . . . And Getting In My Store

Plaintiff went to the Petco store to drop off her daughter’s dog for a grooming appointment at the store’s grooming salon.  As she was leaving the store, she turned around to go back to the counter and slipped on a wet area on the floor and fell, injuring herself. Her injuries from the fall resulted in a total hip replacement. 

On the morning of the accident it was raining, though once plaintiff was in the salon she did not observe any water on the floor. Further, she did not slip when she walked from the salon door to the grooming counter. Rather, plaintiff fell as she was walking back to the salon door from the counter. Plaintiff contended that she turned, stepped, and her foot slipped out from under her. She also claimed that she turned around in response to a Petco employee calling out to her to retrieve her dog’s leash. After plaintiff fell, the right side of her pants was wet. And, when plaintiff’s husband ran into the store to help her, he felt the floor near where she had fallen, and it was wet. None of the Petco employees recalled seeing any water on the floor where plaintiff fell. 

In opposition to a summary judgment motion filed by Petco, plaintiff argued that the main entrance to the Petco store had an awning to protect customers from the rain, but there was no similar awning over the door of the grooming salon. Also, there was no protective mat or towel on the floor of the grooming salon or any wet floor sign or orange cone. Plaintiff further claimed that Petco’s employees were aware that when people and dogs came into the grooming salon on a rainy day, such as the one in question, they brought in moisture.

The court noted that Louisiana Revised Statue 9:2800.6 (pdf) governs a negligence action against a merchant for damages resulting from injuries sustained in a slip and fall accident. Under that statute, a merchant owes a duty “to persons who use his premises to exercise reasonable care to keep his … floors in a reasonable safe condition.” The plaintiff’s claim is governed by the merchant statute, which requires that a plaintiff satisfy his burden of proof by establishing:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;

(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence;

(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Applying this standard, the court found that summary judgment was not appropriate because there was a genuine dispute of material fact as to whether the condition—water on the floor near the entrance of the grooming salon—presented an unreasonable risk of harm; there was a genuine dispute of material fact as to whether Petco had constructive notice of the condition; (This conclusion was based on the fact that when the plaintiff arrived at Petco it had been raining for approximately two hours and the salon had also been open for two hours. It was estimated that at least twelve other dogs and their owners had walked through the grooming salon entrance and the inside before the plaintiff arrived and Petco was aware that these owners and their dogs brought with them moisture from the rain; and there was a genuine dispute of material fact as to whether Petco failed to use reasonable care. The Court noted that the grooming salon entrance had a very small awning over the door that provided far less protection than the awning over other parts of the store and Petco did not place any protective mats inside the grooming salon in spite of its policy to use as many mats as possible during severe weather. Additionally, there was no sign or mark of any kind to warn customers that the floor may be wet, despite the fact that it was a rainy day and moisture was being tracked into the store. 

Take-Away: A premises owner should anticipate that moisture will be brought into their store on a rainy day and take the appropriate precautions such as placing mats near the entranceway and/or placing wet floor signs in the appropriate areas.

Tragedy at the State Fair

The parents of a minor child, Sheldon Lewis, sought to recover damages for injuries sustained by Sheldon when he was injured while exiting an amusement ride at The State Fair of Louisiana (“State Fair”). On the day of the accident, young Sheldon was on a field trip to the State Fair as part of his participation in a Head Start preschool program. Sheldon and his class mates rode the Twin-Ring Demolition Derby Carnival Ride. The children were in the process of exiting the ride when it went into motion, trapping Sheldon between the component of the Twin-Ring and a rotating platform on the floor of the ride. Initial attempts to rescue Sheldon, including the use of the Jaws of Life, were unsuccessful. As a result, he stopped breathing for a prolonged period of time, and suffered severe brain damage. 

In the lawsuit, plaintiffs made numerous allegations of negligence against the Head Start program, the owner/operator of the ride and its employee, and State Fair (as owner, host and promoter of the fair). In response, State Fair, moved for summary judgment arguing that it could not be held liable for any alleged fault and negligence of the amusement ride owner/operator or its employee because it did not hire or train the ride operators, did not have the power to dismiss the company’s employees or direct their actions, and the company and its employees were not agents of State Fair. 

The court agreed that State Fair could not be held liable for any alleged fault or negligence of the ride owner/operator or its employees, because State Fair did not hire or train the ride operators, did not have the power to dismiss the employees or direct their actions, and its employees were not agents of State Fair. However, the court found that there was sufficient evidence of independent negligence and comparative fault on the part of State Fair to allow those claims to go to trial. Although the court recognized that State Fair had no responsibility for the operation of the rides, this did not necessarily alleviate State Fair’s responsibility to insure that all rides were safe from unauthorized tampering when the rides were in the “off” position. Accordingly, the case was allowed to proceed to trial against State Fair on the issue of whether or not there was a casual connection between State Fair’s duty to provide a safe premises and safe rides, and injuries suffered by plaintiffs and their son.

Take-Away: Bad facts make bad law. Sometimes, given the tragic circumstances of a case—such as catastrophic injuries to a child—a court will be reluctant to summarily dismiss a case and not let the jury decide the fault of a premises owner, even where the theory of liability asserted against the owner is objectively suspect.

Once a Problem, Always a Problem

Jennifer Louviere was shopping in a Wal-Mart when she slipped and fell in a clear substance that she believed came from water dripping from the ceiling. Ms. Louviere, and her aunt who was with her at the time, were unaware of how long the water had been on the floor, and they did not see any buggy tracks or foot prints in the puddle of water. They also did not know if anyone from Wal-Mart knew the substance was on the floor prior to the fall.

Ms. Louviere sued Wal-Mart and alleged that the company was negligent in (1) failing to properly inspect the area where the accident occurred, (2) failing to properly maintain and inspect and clean the premises, (3) failing to warn of this unreasonably dangerous condition, (4) failing to maintain, inspect and repair the ceiling/roof, and failing to warn Ms. Louviere and other customers of same, and (5) failing to use reasonable and prudent care under the circumstances. Ms. Louviere asserted claims under Louisiana’s merchant liability law, in strict liability, and the doctrine of res ipsa loquitur

Wal-Mart sought summary dismissal of the case on the grounds that Ms. Louviere could not establish (1) the existence of a dangerous condition or (2) that Wal-Mart either created the condition or had actual constructive notice of the condition prior to the accident. Wal-Mart further maintained that Ms. Louviere’s strict liability and res ipsa loquitor claims should be dismissed because Revised Statute 9:2800.6, Louisiana’s Merchant Liability Law, is the sole theory of recovery available to her.

The court agreed that Ms. Louviere could only bring a claim under Louisiana’s Merchant Liability law and dismissed her claims in strict liability and under the doctrine of res ipsa loquitur. As to Ms. Louviere’s surviving claims, the court considered evidence presented by Ms. Louviere that Wal-Mart created the condition that caused the accumulation of water in the area where she fell and Wal-Mart was on notice of the leaks, yet failed to take any preventative measures. Ms. Louviere noted that she saw water dripping from the ceiling at the time of her fall and that Wal-Mart employees testified that the store had a history of ceiling leaks. Ms. Louviere also relied on the testimony of her expert who opined that the leak that caused Ms. Louviere’s accident was from the rack house and/or air conditioning tubes in the ceiling, and that there was a long pattern of leakages related to this part of the building. Based on this evidence, the court found that there were genuine issues of material fact for trial as to whether or not Wal-Mart created the hazardous condition that caused the alleged incident, and/or whether or not Wal-Mart had constructive notice of the hazardous condition that caused Mr. Louviere’s accident. 

Take-Away: In a slip and fall case, although a plaintiff may not be able to establish that a premises owner such as Wal-Mart either created or had notice of the actual dangerous condition that caused the accident, a plaintiff may be able to survive summary judgment dismissal if she can establish a history or long standing pattern of similar dangerous conditions in the area where the slip and fall occurred.

Slip Sliding Away: Customer's Conflicting Testimony and Lack of Evidence Torpedoes Her Slip and Fall Claim

Gail Baudy filed suit to recover damages from a broken right arm and radial neck fracture she sustained when she fell at a Winn-Dixie store as she was stepping off of the sidewalk and curb onto the driveway of the shopping center. Mrs. Baudy alleged that the slope in the driveway caused her ankle to roll as she stepped off of the curb onto the driveway. She further claimed that the sloped driveway created a dangerous condition, for which Winn Dixie was liable due to its failure to prevent the condition from causing injury, and that the store failed to warn of the dangerous condition.  

At trial, Mrs. Baudy testified that she shopped at the involved Winn-Dixie store two to three times a week prior to her fall. On the day of her fall, she was walking towards the store on the sidewalk and noticed a crowd forming around a table of girls selling Girl Scout cookies on the sidewalk near the entrance to the store. In an effort to avoid the crowd, she stepped off of the sidewalk/curb and onto the driveway. Although Mrs. Baudy claimed that the driveway appeared to be level and not sloped, when she stepped onto the driveway the slope of the driveway caused her ankle to roll and she fell to the ground.   This testimony conflicted with her prior deposition testimony wherein she stated that the unevenness of the curb caused her to fall. 

At trial, Winn-Dixie’s expert testified that the maximum allowable height for a curb is seven inches, and that the curb in the area where Mrs. Baudy she fell measured below that limit. He also testified that the sidewalk in the driveway measured within code limits for slope. And, he explained that when he inspected the area he did not find any uneven surfaces in the area of Mrs. Baudy’s fall or any other unreasonable dangerous condition. Based on the evidence presented at trial, the court found that Mrs. Baudy failed to present any evidence of a defect or other unreasonable risk of harm. The court also observed that the slope of the driveway was open and obvious. 

On appeal, the court noted that Mrs. Baudy sought to establish liability on the part of Winn-Dixie based on the existence of an unreasonably dangerous condition or defect on the defendant’s property under Louisiana Civil Code Article 2317.1 (pdf). Under that article, “[t]he owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.” The appellate court first noted that the mere fact that a pedestrian fell does not automatically render the condition of a street unreasonably dangerous, particularly where the complained about condition is open and obvious. After considering all the evidence, the appellate court found that there was no evidence of a danger upon which reasonable people could reach a contrary result and find Winn Dixie liable for Mrs. Baudy’s injuries.

Take-Away:  When a plaintiff’s testimony at trial conflicts with her earlier deposition testimony, serious issues are raised as to the plaintiff’s credibility. And, simply because a store patron falls on the premises, does not necessarily mean that the fall occurred as a result of an unreasonably dangerous condition.

No Recovery against Premise Owner/Employer Where Employee Was Not in Course and Scope of Employment at the Time She Ran Over Customer with her Vehicle in Store Parking Lot

Akeisha Dorsey was employed by RaceTrac at its convenience store. On the day of the accident she left work for a doctor’s appointment and returned to the store several hours later. Ms. Powell was at the store to purchase a propane tank. She had parked in the handicapped zone in front of the store and was standing next to her vehicle as Ms. Dorsey drove into the parking lot. Ms. Dorsey’s vehicle was approaching from the opposite side from where Ms. Powell was standing and she did not see Ms. Powell until she turned into the parking space. By that time, Ms. Dorsey was unable to avoid striking Ms. Powell with her vehicle. 

Ms. Powell filed suit against Ms. Dorsey, RaceTrac and various insurers. She claimed, among other things, that RaceTrac was vicariously liable as the store owner for the negligent acts of its employee, Ms. Dorsey. Ms. Powell also asserted that RaceTrac was liable for negligent training and supervision of its employee, and lastly, that there was a defect in the premises. 

The court first considered Ms. Powell’s claim that RaceTrac was vicariously liable for the acts of its employee, Ms. Dorsey. The court noted that a central element of this claim is proof that an employee was acting in the course and scope of her employment at the time of the accident. The court further explained that in a case where an employee has a fixed place of work, the time spent traveling to and from work is almost never considered to be in the course and scope of employment. Here, it was undisputed that Ms. Dorsey left work to see a doctor and was returning to her job when the accident occurred and that her work duties did not encompass driving to and from work. Nor was Ms. Dorsey paid for the time she was off-site. And, Ms. Dorsey’s action of leaving work for the purpose of attending a personal appointment and returning to work following the appointment was not in furtherance of the employer’s business interests. Considering these factors, the court found that there were no facts in dispute which could lead to the imposition of vicarious liability on the part of RaceTrac and, therefore, dismissal in favor of RaceTrac as to Ms. Powell’s vicarious liability claim was proper.

For the same reasons, Ms. Powell’s claim against RaceTrac for negligent training and supervision of its employee was also dismissed, because RaceTrac had no duty to train its employee regarding an act which was outside of the course and scope of her employment. 

Finally, with respect to the plaintiff’s premises liability claim, it was undisputed that there was no evidence or testimony that indicated that there were any defects in the parking area of the RaceTrac Store so those claims likewise were dismissed. 

Take-Away: The mere fact that a person is injured by an employee of a premise’s owner on the premises does not necessarily support a finding of liability on the part of the premise’s owner. In a case where the employee caused the accident, but was not in the course and scope of her employment at the time, the employer premise owner will not be found liable for the employee’s negligent acts. 

Why Did the Plaintiff Cross the Road? LA Supreme Court Says It's Obvious.

On December 2, 2011, Royce Bufkin Jr. was enjoying an afternoon stroll through the French Quarter when he encountered a construction barrier blocking the sidewalk and directing him to cross to the other side of the street. The construction barrier was for work being done on a building, and there was a large dumpster occupying several on-street parking spots immediately adjacent to the sidewalk barrier. As Bufkin prepared to cross the one-way street, he looked in the direction of oncoming traffic before beginning to cross the road. Unfortunately for Bufkin, a bicyclist delivering food for Felipe’s Taqueria Restaurant was traveling the wrong way down Conti Street at that same moment, and Bufkin was struck by the bicyclist and injured. 

Bufkin subsequently filed suit against Felipe’s, its insurer, and Shamrock Construction, the company doing the construction on the building, as well as the building’s owner. As to Shamrock, Bufkin argued the company was liable because it created an unreasonable risk of harm to pedestrians by creating a “blind spot” that prevented pedestrians from seeing oncoming traffic when crossing the street. Bufkin argued that Shamrock’s sign directing pedestrians to cross the street should have also advised them that the dumpster created a blind spot, and specifically instructed pedestrians to cross at the corner. Bufkin also contended that Shamrock should have placed buffers around the dumpster to eliminate the blind spot. Shamrock sought summary dismissal of the lawsuit, arguing that it was not negligent and owed no duty to warn about the dumpster. The trial court denied the motion and the appellate court also denied Shamrock’s subsequent application for supervisory review of the denial. But the Louisiana Supreme Court granted Shamrock’s writ application for review in Bufkin v. Felipe’s Louisiana

The Supreme Court framed the issue as “whether the sidewalk condition, created by Shamrock’s allegedly insufficiently posted warnings and the placement of the large curbside dumpster, produced a vision obstruction that was unreasonably dangerous, and if so, whether Shamrock owed a duty to place additional warnings on its signage and/or to construct a buffer zone that would mitigate against any vision obstruction created.” The Court then went on to note that generally, the burden for tort liability arising from a sidewalk defect lies with the municipality, unless an adjoining landowner negligently caused the defect. Nonetheless, the Court noted that a pedestrian still has a duty to see “that which should be seen and is bound to observe his course to see if his pathway is clear.” Ultimately, the Court evaluated whether Shamrock owed a duty to Bufkin under four factors:

  1.  The utility of the complained-of condition;
  2. The likelihood and magnitude of the harm, including the obviousness and apparentness of the condition;
  3. The cost of preventing the harm; and
  4. The nature of the plaintiff’s activities in terms of social utility or whether the activities were dangerous by nature. 

The Court quickly disposed of the first factor, utility, noting that “[c]onducting repairs and renovations to aging French Quarter buildings is not only desirable, but necessary.” The Court then moved on the second prong, noting that a defendant generally does not have a duty to protect against obvious and apparent dangers. In evaluating this prong, the Court considered evidence submitted by Shamrock, including photographs of the accident site about a week after the accident, Bufkin’s deposition, and an affidavit from Dale Johnson, Shamrock’s superintendent for the building project.     

Mr. Johnson’s affidavit went into detail about the size of the 30-cubic-yard dumpster, the signage warning that the sidewalk was closed and warning pedestrians to cross the street, and the position of the dumpster. Johnson also noted that there was no pedestrian crossing delineated at the construction location. Meanwhile, Bufkin’s deposition revealed that he had lived in the French Quarter for thirty years. Bufkin also stated he followed pedestrian traffic crossing by the dumpster because “he thought crossing by the dumpster was a shortcut.” Bufkin did not dispute that he failed to look to his right (the opposite direction of oncoming traffic) before crossing the street. Bufkin also admitted that he had known of the dumpster’s presence for more than four months by the time of the accident, and as a French Quarter resident, he was aware that people would at times walk, jog, or bicycle the wrong way down one-way streets. 

The Court began its analysis of the facts by acknowledging that Shamrock would have been liable for any unreasonably dangerous condition it created on the sidewalk, having assumed custody of the sidewalk by shutting it down during the construction. However, considering all of the above evidence and testimony, the Court found that any vision obstruction caused by a dumpster of the size at issue was obvious and apparent, and reasonably safe for persons exercising ordinary care and prudence. Accordingly, the Court concluded that Shamrock had no duty to warn of the obstruction presented to pedestrian by its “pick-up-truck-sized dumpster, a large inanimate object visible to all.” This lack of duty also negated the need for the Court to evaluate the remaining two factors of the test. Because Bufkin presented no evidence to refute this finding, the Supreme Court reversed the lower courts’ decision and entered summary judgment in favor of Shamrock, dismissing the case against it. 

Take-Away: Even where a defendant has control of a premises (such as Shamrock and the sidewalk in this case), it still has no duty to warn plaintiffs of obvious and apparent dangers.  

This article was co-authored by Meera Sossamon, an associate at Irwin Fritchie Urquhart & Moore LLC.     

No Duty to Protect Against Unforeseeable T-Shirt Throwing

In February 2010, the plaintiff, Beverly Zacher, was in attendance at a party at Harrah’s Casino in downtown New Orleans, which was being held to celebrate the New Orleans’ Saints Super Bowl victory that season. While in attendance, Ms. Zacher was standing near the back of the party venue, when she was allegedly run into by a man attempting to catch a white t-shirt that was thrown off of the party’s stage, causing her to fall and injure her shoulder, ankle, and thigh. Ms. Zacher filed suit against Harrah’s asserting claims of negligence, strict liability, and merchant liability for her injuries. After a one-day bench trial, the trial court found that Harrah’s was in part liable for Ms. Zacher’s injuries because Harrah’s breached its duty to provide adequate security to prevent such an accident from happening. Subsequently, Harrah’s filed an appeal, Zacher v. Harrah’s New Orleans Management Co.

On appeal, the court determined that the trial court erred in finding that Harrah’s breached its duty to Ms. Zacher to provide security to prevent “an accident.” Significant to the court’s finding, was the fact that the planned giveaway at the Super Bowl party was a black New Orleans Saints towel, which all witnesses said were handed out, rather than thrown, from the party’s stage. The white t-shirt throwing was not a planned event on the part of Harrah’s, and instead appeared to be based upon a spontaneous decision by the party’s M.C. Thus, the court found it unreasonable to find that Harrah’s had a duty to police against the M.C.’s unexpected act of throwing t-shirts into the crowd. Importantly, the court noted that, if Harrah’s had planned a promotional t-shirt throwing event that caused an injury, it could have been found liable.

Alternatively, Ms. Zacher argued that Harrah’s was liable for the M.C.’s actions because it had control over the premises at all times. The court rejected this argument, citing La. R.S. 9:2800.6, Louisiana’s statue governing merchant liability, reasoning that under the statute Harrah’s would only be liable for its own negligence and for defects or hazardous conditions on its property that it knew of or should have known about. Because there was no evidence that Harrah’s was aware that the M.C. would throw t-shirts into the crowd, the court rejected Ms. Zacher’s argument and reversed the judgment of the trial court, finding for Harrah’s.

Takeaway: A merchant does not have a duty to provide security to protect against an unforeseeable accident. If, however, a merchant is engaging in an activity in which an accident is reasonably foreseeable, then such a duty may arise.

This article was co-authored by Jon Phelps, an associate at Irwin Fritchie Urquhart & Moore LLC.

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Swimming Supervision: The Danger In Relying On Others

On June 27, 2011, 12-year-old Jamarcus Hilliard attended a birthday party at the Sterlington, Louisiana, home of Cash Clay. During the party, Jamarcus was permitted, along with eleven other children, to play in and around the swimming pool located on Clay’s property. Despite being unable to swim, Jamarcus entered the pool at some point during the party and, unfortunately, drowned.

Clay was not present at his home on that fateful day, instead allowing his girlfriend, Kinsha Walton, to host the party in his absence. Walton, along with her three children, Kimberly, Derek, and Alexis, lived at the Sterlington home with Clay, and all members of the household other than Clay were present at the party. At some point after Jamarcus began playing in the pool, several children began screaming that Jamarcus had gone under water in the deep end but failed to resurface. Walton was the only member of the household supervising the party at that time, but was unable to assist Jamarcus because she did not know how to swim. In fact, neither Walton nor her daughter Alexis knew how to swim; however, Walton’s other two children, Derek and Kimberly, were qualified swimmers. After a failed rescue attempt by the father of another child, Walton asked Kimberly to assist Jamarcus, though Kimberly was deaf and indicated that she did not know what to do. Derek was then summoned from inside the home and rushed poolside, but it was too late. Jamarcus had already passed and was officially pronounced dead a short time later at the hospital.

The court ruled that, as the property owner, Clay had a duty to provide reasonable supervision to the children using his pool. Relying on deposition testimony, the court recognized that even though Clay knew young children would be using his pool, he decided not to be present during the party, thereby relying primarily on Walton to satisfy his duty of reasonable supervision. In addition, Clay testified that he knew both Derek and Kimberly could swim and would be present at the party; however, the court noted that he did not specifically ask them to help Walton supervise the children, nor did Derek and Kimberly offer to assist.

In a preliminary ruling, the court explained that a jury could reasonably determine that Clay’s knowledge that Derek and Kimberly would be present during the party is not the same as having Derek and Kimberly responsible for supervising the party. Thus, as Walton was the only member of the household with supervision responsibilities, the court concluded that an issue of fact existed as to whether Clay acted reasonably in relying solely on Walton, a non-swimmer, to supervise a group of young children in a swimming pool, with the mere expectation that Derek and Kimberly would be present at the party. Accordingly, the appellate court reversed the trial court’s summary dismissal of the lawsuit and remanded it for further proceedings.

Take-Away: Property owners have a duty to provide reasonable supervision to children swimming in their pools. Although property owners may rely on others to satisfy this duty of supervision, such reliance must be reasonable, and allowing a non-swimmer to supervise children may not reasonable.

This article was co-authored by Chris Ulfers, a summer associate at Irwin Fritchie Urquhart & Moore LLC.