A Video is Worth a Thousand Words--Video Footage Defeats Plaintiff's Efforts to Avoid Summary Dismissal of Her Lawsuit against Wal-Mart

Hubert v. Wal-Mart Louisiana, LLC, involved a slip-and-fall at a Wal-Mart store.  Wal-Mart surveillance camera footage captured a male shopper wearing a white baseball cap pushing a grocery cart down the dairy aisle.  It showed the shopper travel away from the camera and move further down the aisle before deciding to turn his cart around and retrace his steps at 7:30:42 p.m.  It then showed him push his cart a short distance and two seconds later stop the cart when he noticed something dripping from his cart onto his leg and the floor.  Next, the shopper immediately pushed his cart out of the aisle and proceeded without his cart to find a Wal-Mart employee (7:30:51-52 p.m.).  Seconds later Jessica Hubert fell in the exact location where the male shopper appeared to have noticed the spilled item—salsa from a broken jar—47 seconds earlier.

Hubert filed suit in Louisiana state court against Wal-Mart seeking damages for injuries she allegedly sustained when she fell. Wal-Mart removed the case to federal court on diversity jurisdiction grounds, following which it filed a motion for summary judgment.  Hubert opposed the motion.

The federal court judge, Judge Shelly Dick of the Middle District of Louisiana, first noted that Hubert’s claims were controlled exclusively by Louisiana’s “Merchant Liability Statute,” La. R.S. 9:2800.6 (pdf).  The issue therefore was whether Hubert had proven that Wal-Mart had constructive notice of the spill as required by La. R.S. 9:2800.6(B)(2) & (C)(1), so as to avoid summary dismissal of her claims.  Constructive notice is defined under the law to include a mandatory temporal element.  To prove constructive notice, Hubert had to establish through positive evidence that the condition existed for some period of time sufficient to place Wal-Mart on notice of its existence.

Hubert made a number of arguments in an effort to prove constructive notice.  She argued that the presence of a Wal-Mart employee in the immediate area of the spill prior to the fall established constructive notice and that a grocery cart’s wheel marks through the spill implicitly established that the salsa had been on the ground a sufficient period before the fall. Hubert also relied on a U.S. Fifth Circuit decision that she claimed supported her position because there the court recognized that the temporal showing in a slip-and-fall case could be based upon a reasonable inference drawn from circumstantial evidence, such as the size and nature of the spill. 

Judge Dick rejected each of Hubert’s arguments and granted Wal-Mart’s summary judgment motion.  In reaching its decision, the Court emphasized that Louisiana’s Merchant Liability Statute expressly provides that the mere presence of a store employee in the vicinity where the condition exists does not, by itself, constitute constructive notice.  And the evidence presented by Hubert did not otherwise support a finding of constructive notice.  Rather, surveillance video showed that the employee was not actually in close proximity to the spill and the spill only existed for around fifty seconds prior to the fall.  Hubert also admitted that the store employee had his back turned to the spill and was preoccupied with performing work tasks shortly before the fall.  Regarding the grocery cart tracks through the salsa, the Court noted that the video of the male shopper showed that he created the spill and then made the marks with his cart, which confirmed that the salsa was only on the ground for less than a minute prior to Hubert’s fall.  This evidence overcame any possible inference that the temporal element of the statute was satisfied.

Take-Away:  Strong video surveillance evidence documenting the exact timing of a spill and a patron’s subsequent slip and fall in the area of the spill can overcome much softer evidence or argument of a plaintiff such as the presence of a store employee in the “immediate vicinity” of the spill or any inferences drawn from the presence of buggy track marks through the spilled area.

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



Caught on Candid Camera: Surveillance Footage Used by Defendant to Prove Fault of Plaintiff

Sheneatha Stevens was shopping at Market Basket grocery store in Lake Charles, Louisiana, when she fell on rice on the floor at the end of a refrigerator aisle. Ms. Stevens subsequently sued Market Basket for injuries she allegedly sustained as a result of the fall. In response, Market Basket denied liability and alleged fraud on the part of Ms. Stevens. After a bench trial in the 14th Judicial District Court, the judge rejected Market Basket’s fraud allegations and found in favor of Ms. Stevens, awarding her $5,000 in general damages, as well as medical special damages. Market Basket appealed to the Louisiana Third Circuit Court of Appeal in Stevens v. Market Basket Stores, Inc.


On appeal, the Third Circuit framed the issue as whether the trial court erred in failing to find fraud on the part of Ms. Stevens, as well as whether the court erred in allocating 100% of the fault to Market Basket. Because both of these issues stemmed from factual determinations by the trial court, the Third Circuit reviewed the manifest error standard of review, pursuant to which an appellate court cannot reverse a trial court’s finding of fact unless it is “clearly wrong.”


On the first assignment of error, Market Basket argued that a surveillance video of the incident—which was introduced into evidence at the bench trial—showed that Ms. Stevens intentionally fell on the rice after initially slipping on the rice without falling. It also argued that its position on this issue was supported by Ms. Stevens’ trial testimony regarding more than 20 personal injury claims filed by her in the 10 years prior to the Market Basket incident. The Third Circuit analyzed the legal definition of fraud, which, under Louisiana Civil Code article 1953 (pdf), requires a showing that a material misrepresentation has been made by one party designed to deceive another to obtain an unjust advantage or to cause loss or inconvenience by the other. The Third Circuit ultimately held that the record reasonably supported the trial judge’s finding that Ms. Stevens “legitimately fell” on the rice and that she therefore was not fraudulent in bringing her claim.


With regard to the second assignment of error, Market Basket asserted that the trial court erred in its finding that Market Basket was 100% liable, which was based on the trial judge’s determination that a Market Basket employee who saw the rice less than one minute prior to Ms. Stevens’ fall should have warned Ms. Stevens. Market Basket argued, however, that the surveillance video clearly established that Ms. Stevens had actual knowledge of the rice on the floor prior to her fall. The Third Circuit ultimately agreed with Market Basket on this assignment of error, finding that the surveillance video conclusively established that Ms. Stevens slipped, but did not fall, on the rice twenty-two seconds prior to her falling on the rice. Thus, the Third Circuit reversed the trial court’s finding on liability and reallocated 60% of the fault to Ms. Stevens, with the remaining 40% allocated to Market Basket.


Take-Away: Although the preservation of surveillance footage is necessary to avoid potential spoliation sanctions, the same footage can be used to support a property owner’s argument that the defendant did not breach the standard of care required by the law and, in some cases, can even be used to prove a plaintiff’s fault in a premises liability action.


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


Uncle Sam and Asbestos--the "causal nexus" requirement of the "Federal Officers Removal Statute" in a premises liability suit based on asbestos exposure.

The Surviving spouse and children of Joseph Weiss, who died as a result of asbestos-related mesothelioma, brought claims of negligence, intentional tort, and premises liability in Louisiana state court against the decedent’s former employer, DSM Copolymer, Inc. (“DSM”).  Plaintiffs claimed DSM exposed Mr. Weiss to asbestos during the course of his employment as a maintenance worker at DSM’s facility during the years 1956 – 1966.  DSM removed this suit from state court to federal court on the basis of the “federal officer removal statute.” (pdf)

In the Notice of Removal, DSM asserted that this suit involved a controversy concerning acts undertaken by the federal government. DSM asserted the following arguments in support of Removal:  the facility at issue was designed to the government’s technical specifications and built under the direct supervision of the government;  the original plans for this facility, which were prepared by the federal government, required the use of asbestos-containing insulation products so that the facility could reach necessary manufacturing heat levels;  when Mr. Weiss was an employee of this facility, it operated under the control and supervision of the government;  this facility manufactured butadiene and rubber for the government, until April 22, 1955, when DSM purchased it from the government; and that even after DSM purchased the facility, it remained under the “authority and control” of the government until 1965 because the sale was “conditioned on compliance with the Rubber Producing Facilities Disposal Act of 1953 and the National Security Clause.  This federal law required DSM to maintain the plant and to submit to government officer oversight for a ten-year period following the purchase and gave the government the unconditional right to possession and use of the plant during that ten-year period.  

In support of remand, plaintiffs argued that DSM failed to meet its burden of proving all three elements as required under 28 U.S.C. § 1442(a)(1), namely that “(i) it was acting ‘under color’ of the ‘office’ of the U.S. Government; (ii) there was a nexus between those actions and the harm alleged by Plaintiffs in this case; and (iii) it had a colorable federal defense.”  The gist of the plaintiffs’ arguments in support of remand was that DSM was not acting under the direction of the government at the time Mr. Weiss worked at its facility, and that there was no causal nexus between the federal government’s actions and the plaintiffs’ allegations of harmful asbestos exposure against DSM.  

In support of their Motion to Remand, plaintiffs provided evidence of the following: DSM owned the facility, and not the government, during the course of Mr. Weiss’ employment; DSM was charged with maintaining the facilities “free from waste or nuisance of any kind, and in good repair, working order and condition” and with making all needful and proper repairs, renewals, and replacements to the facility; the government only negotiated for a clause in the act of sale of the facility to DSM that required DSM to maintain the facility in a manner such that it could (if asked) produce butadiene and rubber for the government if needed; there was no evidence that a government representative ever supervised the facility at the time of Mr. Weiss’ employment; and that there was no evidence that the government required DSM to “not warn about the hazards of asbestos” or “to use the asbestos in a manner that allowed the asbestos particles to be released in the breathing zone of workers.”

The federal officer removal statute provides for the removal of a civil action against the U.S. government, or any agency or officer thereof, sued in an official capacity for any lawful act or purpose of the government. The purpose of this removal statute is to protect the lawful activities of the federal government from undue state interference.  The Court initially found that DSM’s ownership and operation of the facility at issue was subject to the National Security Clauses, by which the federal government required DSM to conduct operations in a manner consistent with the operating procedures and practices in place when it was owned and operated by the U.S. for war efforts.  For the purpose of the removal statute at issue, the Court noted that the National Security Clauses in the sale contract of the facility showed that DSM was acting under the direction of federal officers.  However, the Court ultimately determined that DSM failed to establish that a “casual nexus” existed between its actions, which it alleged were undertaken under color of the federal government, and the plaintiffs’ claims, as required by 28 U.S.C. § 1442(a)(1).

According to the Court, the “the key” to the causal nexus requirement in a chemical exposure case is “whether the government had specified the standards and supervised the production of the toxic compound that the plaintiff claimed she was exposed to.”  Additionally, to satisfy the “casual nexus” requirement in the “failure-to-warn” context, at a minimum, the removing defendant must show “that the government provided some level of direct control over warnings.”  Thus, to establish a causal connection regarding plaintiffs’ failure-to-warn negligence claims, DSM must present some evidence that the federal government restricted its ability to warn its employees about asbestos exposure.  DSM could not provide any evidence showing the federal government’s post-sale control over safety standards or warnings in relation to asbestos.  Therefore, the Court determined that DSM failed to meet the causal nexus requirement in relation to the plaintiffs’ failure-to-warn claim.

The Court also determined that DSM failed to demonstrate a “causal nexus” with regard to the plaintiffs’ premises liability claims.  In this context, DSM must show specific requirements by the government for the use of asbestos, as well as inspections ensuring the use of asbestos, on its property for the “causal nexus” requirement to be satisfied.  In sum, DSM did not produce any direct evidence that the U.S. government directed or required it to maintain asbestos at the facility where Mr. Weiss worked.  Nor was there any evidence presented by DSM showing that it was precluded from removing the asbestos-containing materials once it took full ownership and control of the facility at issue.  In support of its finding, the Court relied on a provision of the Act of Sale between the government and DSM, whereby DSM had the responsibility to sell or otherwise dispose of any of the machinery, equipment, or other property of the facility which had become “worn out, obsolete or otherwise unfit for use.”  Since DSM was responsible for maintaining and updating this facility during the course of Mr. Weiss’ employment, the decision to maintain asbestos at the facility fell on DSM.  The Court granted the plaintiffs’ motion and remanded the lawsuit back to state court.

Take-Away: Defendants seeking to remove a civil action under “the federal officer removal statute” must establish that their acts or omissions, which allegedly form the basis of the lawsuit, were subject to the federal government’s specific control.

How to Dump and Get Away With It

Predecessors to Exxon Mobil Corporation (“Exxon”) and 2H Incorporated (“2H”) gained leasing rights to use lands owned by Emile Levet (“Levet”) and Roger and Julie Moore (“the Moores”) for oil and gas exploration and production activities in the 1950s, 1960s, and 1970s. These lands are located in the Bayou Sale Oil & Gas Field in St. Mary Parish, Louisiana. Levet and the Moores filed suit against Exxon and 2H seeking damages for contamination of their land resulting from disposal of hazardous oilfield waste in unlined earthen pits near their property.  

In the lawsuit, Levet and the Moores assert that Exxon and 2H are strictly liable under articles 2317 (pdf) and 2322 (pdf) because they had garde of the facilities and equipment that polluted their property.  To prevail on a custodial liability claim under article 2317, a plaintiff must prove four elements: 1) the thing causing his damage was in the garde of the defendant; (2) the thing had a “defect” or a condition creating an unreasonable risk of harm; (3) the defective condition caused plaintiff’s injuries; and 4) the defendant knew or should have known of the defect that caused the plaintiff’s injuries. To prevail against the owner of a building under article 2322, a plaintiff must prove five elements: (1) ownership of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and (5) causation.

Thus, to state a claim under either article, a plaintiff must allege the existence of a vice or defect. The district court dismissed the premises liability claims because Levet and the Moores failed to allege any facts suggesting that any of Exxon’s or 2H’s facilities and/or equipment contained a vice or defect that created an unreasonable risk of harm to their properties. The failure to allege such facts was fatal to their premises liability claims.

Take-Away:  Simply because a property has been damaged does not necessarily mean someone will be held accountable for the damage.  A plaintiff’s claim for environmental damage will rise or fall on the theory of recovery actually alleged by a plaintiff, even when other non-asserted theories of recovery may be available to the plaintiff.

Wet Floor Sign Does Not Necessarily Prove Floor is Wet

Ms. Williams was shopping with her daughter at Super 1 Foods grocery store when she noticed a wet floor sign while she was walking in the frozen food section.  After she passed the sign, she slipped and fell on what she described as a “puddle of water” on the floor injuring herself. 

Ms. Williams sued the store, which subsequently was dismissed from the case via summary judgment.  On appeal, the court noted that in order for Ms. Williams to succeed on her claim under Louisiana’s merchant liability statute, La. R.S. 9:2800.6 (pdf), she had to prove 1) that the water on the floor existed and it presented an unreasonable risk of harm; 2) the store owner either created or had actual or constructive notice of the water; and 3) the store owner failed to exercise reasonable care.  Applying these factors to the evidence in the record, the appellate court affirmed the summary dismissal of Ms. William’s claims against the store owner.  In reaching its decision the appellate court considered the deposition testimony by two store employees, who both testified that the wet floor sign was placed in the area of the fall to warn customers of a faulty metal plate covering a floor drain.  Ms. Williams, in turn, pointed to the deposition testimony of two other store employees who stated that they did not recall the faulty metal plate or the wet floor sign.  She argued that the testimony of the store employees was inconsistent and that this inconsistency created a genuine issue of material fact.  The court disagreed and found that Ms. Williams failed to present any evidence that the wet floor sign was placed there because of the water on the ground (as opposed to a faulty metal plate covering a floor drain).  Ms. Williams also failed to otherwise satisfy the temporal element of her claim—that the alleged condition existed for some period of time prior to the fall. 

Take-Away:  The presence of a “wet floor sign” does not necessarily establish that there was water on the floor at the time of a patron’s fall, especially when there is an alternative explanation for the sign’s presence.  Under those circumstances, a patron must show that the allegedly defective condition (in this case water on the floor) existed for some period of time prior to a fall.


"Damp Pants" Cannot Defeat Summary Judgment

In March 2013, plaintiff Rebecca Pouncy was shopping at Winn-Dixie and fell “while entering the store on standing water on the floor.” Three days after her fall, she sued Winn-Dixie and its employees under Louisiana’s Merchant Liability Statute, La. R.S. 9:2800.6 (pdf), alleging that they “did not place adequate mats out during a rain storm and did not warn customers or prevent the floor from becoming very slippery.”

In her deposition, Ms. Pouncy testified that she had “no idea” what caused her to fall and that she did not see any substance on the ground when she fell. She also testified that her clothes “felt damp,” but were not actually wet after the fall. Furthermore, her testimony indicated that there was a green wet floor sign “right at the entrance of the door,” and the sign was “always there” in the same spot when she visited the store.

Winn-Dixie filed a motion for summary judgment, arguing that Ms. Pouncy could not satisfy her burden of proof under La. R.S. 9:2800.6. Specifically, Winn-Dixie argued that, based on her deposition testimony, there was no way Ms. Pouncy could prove either the existence of an unreasonably dangerous condition in the store, or that Winn-Dixie had actual or constructive notice of an unreasonably dangerous condition. Ms. Pouncy opposed the motion, arguing that because she was not aware of all of the technical reasons a floor may be dangerously slick, the court should not rely on her deposition testimony. The trial court granted Winn-Dixie’s motion for summary judgment, and Ms. Pouncy appealed, arguing that there were genuine issues of material fact regarding the presence of water on the floor and Winn-Dixie’s constructive notice of the water.

The Fifth Circuit Court of Appeal affirmed and cited Alonzo v. Safari Car Wash, Inc., in support of its holding that Ms. Pouncy’s deposition testimony that her clothes were damp was insufficient to establish that she would be able to prove the existence of a condition that presented an unreasonable risk of harm. The Court also held that Ms. Pouncy’s testimony regarding the green wet floor sign was insufficient to prove that Winn-Dixie had constructive notice of an unreasonable risk of harm.

Take-Away: A plaintiff’s allegation that her clothes felt “damp” after falling on a merchant’s premises is insufficient to satisfy her burden of proving the existence of an unreasonably dangerous condition under Louisiana’s Merchant Liability Statute.

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


A Merchant's Duty to Warn . . . of a Zip Tie?

On April 18, 2012, Benjamin Tomaso visited the Home Depot in Slidell, Louisiana.  He parked his car near the main entrance while his fiancé entered the store to return an item.  When he noticed lawn tractors near the entrance, he stepped out of his car and sat on one of the tractors to “check it out.”  A Home Depot employee asked Mr. Tomaso to remove himself from the tractor because there was insufficient room for the employee to push shopping carts between Mr. Tomaso’s parked car and the tractor.  While attempting to step down from the tractor, Mr. Tomaso fell.  At first, he was not sure what caused him to fall, but after he fell, he noticed a small zip tie on the floorplate of the tractor and concluded that it was the only possible cause of his accident.

Mr. Tomaso filed a slip-and-fall suit against Home Depot, U.S.A., Inc. (“Home Depot”), claiming that he suffered extensive injuries as a result of his foot being snagged by a hazard – the zip tie – that had negligently not been removed from the subject tractor.  Home Depot filed a motion for summary judgment, asserting that Mr. Tomaso failed to meet the requisite burden of proof governing negligence claims against merchants pursuant to La. R.S. 9:2800.6 (pdf).  Specifically, Home Depot argued that the zip tie was not a defective condition or otherwise inherently dangerous, and that Mr. Tomaso presented no evidence that any injury caused by a zip tie was foreseeable or that Home Depot should have known an injury could occur.  Additionally, Home Depot urged that Mr. Tomaso could not prove causation because he did not know what caused him to fall initially, and only after he saw the zip tie, Mr. Tomaso considered that to be the sole possible cause. 

In opposition to Home Depot’s motion, Mr. Tomaso introduced excerpts from the deposition of Home Depot’s assistant manager, who testified that the zip tie is placed on the tractor by the manufacturer to secure it during transit, and that the zip tie is usually removed by the customer after purchase.  In support of its motion, Home Depot introduced the affidavits of two Home Depot employees stating that neither employee had ever witnessed or taken an incident report where a customer tripped on a zip tie connected to a lawn tractor on display. 

Following a hearing, the trial court granted Home Depot’s motion and dismissed Mr. Tomaso’s action.  Mr. Tomaso appealed, asserting that the trial court erred in finding: (1) Home Depot was not negligent for failure to remove zip ties from the tractor before allowing Mr. Tomaso to climb on it for inspection; (2) the negligently left zip tie on the tractor was not a hazard; (3) that the negligently left zip tie was not an unreasonable risk of harm; and (4) that Home Depot’s supervisor employee was not negligent in ordering Mr. Tomaso to immediately remove himself from the tractor without warning him of the negligent hazardous zip tie as he was stepping down from the tractor.

Although Mr. Tomaso did not specify which substantive law he believed was applicable to his case, the Court of Appeal discussed two relevant statutes: merchant liability under La. R.S. 9:2800.6 and premises liability arising from ownership or custody under La. Civil Code art. 2317.1 (pdf).  The Court noted that the applicability of the merchant liability statute was questionable given that the accident took place outside the store entrance in the parking lot and did not arise from Home Depot’s failure to specifically keep its aisles, passageways, and floors in a reasonably safe condition.  Nonetheless, the Court found that summary judgment was appropriate under either statute because there was no evidence to suggest that Home Depot had knowledge of a danger or risk of harm created by the zip tie before Mr. Tomaso’s accident, and proof thereof was required under either theory of recovery.  In addition, the Court reasoned that Mr. Tomaso’s post hoc speculation that the zip tie caused his accident was insufficient to provide the factual support necessary to show he would be able to meet his burden of proving causation at trial.

Finding Mr. Tomaso failed to come forward with evidence sufficient to create a genuine dispute for trial on the essential elements of his claim, the Court of Appeal affirmed the trial court’s judgment granting summary judgment in favor of Home Depot and dismissing Mr. Tomaso’s claims.

Take-Away: To recover under either the merchant liability statute (La. R.S. 9:2800.6) or the premises liability statute based on ownership or custody (La. C. C. art. 2317.1), a slip-and-fall plaintiff bears the burden of proving that the defendant had actual or constructive knowledge of a danger or risk of harm before the plaintiff’s accident.  Additionally, post hoc speculation as to what caused an accident is not enough to show that a plaintiff would be able to meet his or her burden of proof at trial.

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

Contractor Not Responsible for Table Saw Injury

In August 2009, plaintiff Patrick Chaplain, a carpenter, was working at a house being renovated by a contractor. His employment status, i.e., whether he was an employee or sub-contractor, is unclear. Plaintiff was cutting prefinished wood flooring on a table saw owned by the contractor, when his left hand was struck by the table saw blade, amputating several fingers. The safety guard was not on the table saw at the time.

Plaintiff sued the contractor under Louisiana Civil Code Article 2317, which governs liability for things in one’s custody, and Article 2317.1, which governs the liability of the owner or custodian of a thing for damage caused by ruin, vice, or defect in things. The contractor filed a motion for summary judgment which the trial court granted.

On appeal, the Louisiana Fourth Circuit Court of Appeal noted that plaintiff had been a carpenter for 30 years, worked with prefinished wood floorboards before, seen operating manuals for table saws but never read them, and seen warning labels saying that the table saw should only be used with the guard in place. Plaintiff knew the guard was not on the table saw at the time of his accident. In order to use the table saw to perform the cuts he needed to make, the blade guard could not be installed. Plaintiff was aware of other tools he could have used to make the cuts he needed to make. The contractor, after hiring plaintiff, bought a new table saw and gave the box to plaintiff and his son for assembly. A blade guard was included in the box, but the saw was assembled without the guard.

In order to prevail on a claim under Article 2317, a plaintiff must prove that the thing which caused damage was in the defendant’s custody and control (garde), the thing had a vice or defect which created an unreasonable risk of harm, and the injuries were caused by a defect. Article 2317.1 adds the requirement that the injured plaintiff prove that the owner/custodian knew, or in the exercise of reasonable care, should have known of the unreasonable risk of harm, that the damage could have been prevented by the exercise of reasonable care, and that the owner/custodian failed to exercise such reasonable care.

The Fourth Circuit affirmed summary judgment on behalf of the contractor, finding that the table saw was under plaintiff’s control at the time of the accident and that plaintiff did not prove that the table saw had a defect much less that the contractor defendant knew of the defect. The accident took place because the blade guard was not on the table saw, “a fact of which [plaintiff] was well aware.” Plaintiff chose to use the table saw even though other tools were available to perform the cuts.

Take-Away: A contractor who does not have custody or control over a tool and did not have knowledge of an alleged defect in the tool cannot be held responsible for injury caused by its use.

Don't Shop 'til You Drop

On November 1, 2013, Virgie Ray was shopping for clothes at the Stage Store, the same retail store where she had shopped regularly for years. Standing next to a rolling clothing rack, Ms. Ray asked an employee for help with finding a blouse. Attempting to follow the employee to another area of the store, Ms. Ray stepped into the clothing rack, and her right foot caught the bottom bar of the rack, causing her to fall. 

Ms. Ray filed a slip-and-fall suit against the Stage Store owners (“Stage”), claiming that she suffered injuries to her knees, face, shoulder, neck and right eye. She claimed that the clothing rack created an unreasonable risk of harm that Stage’s employee had a duty to warn her about. To prove her claim under Louisiana law, Ms. Ray must show that an unreasonably dangerous condition existed in the store when she fell, and that Stage created the condition, knew that the condition existed, or should have known the condition existed.  In addition, Ms. Ray must show that Stage’s employee failed to exercise reasonable care to protect her from the unreasonably dangerous condition.  Stage filed a motion for summary judgment asking the court to dismiss Ms. Ray’s claims on the basis that she had presented no evidence to support the elements of her claim. According to Stage, the clothing rack and its exposed feet were open and obvious and did not create an unreasonable risk of harm, and its employees had no duty to warn Ms. Ray of the rack’s presence or location.

Video evidence of the accident confirmed that the clothing rack was plainly visible to Ms. Ray immediately before she fell, and although Ms. Ray testified at her deposition that she could not see the bottom of the rack, she made a contradictory binding admission in which she denied that she did not see the bottom of the rack before she fell. Based on the available evidence, the court found that Ms. Ray was aware of and saw the clothing rack before she tripped and fell. As a result, the court concluded that the clothing rack did not create an unreasonable risk of harm. Rejecting Ms. Ray’s argument that she never had a chance to look down before she began to follow the employee, the court found that neither the accident video nor Ms. Ray’s own testimony reflected that she did not have a chance to look down, or that something prevented her from looking down, before she started walking. 

The court also rejected Ms. Ray’s argument that the store employee’s actions in placing or using the clothing rack were unreasonable and/or violated the store’s policy to transfer clothes from rolling racks to permanent racks as quickly as possible and then move the rolling racks to the warehouse when finished. Ms. Ray did not present any evidence showing that the employee’s actions violated the store policy or were otherwise unreasonable. Moreover, Ms. Ray failed to cite a single Louisiana case that found an unreasonable risk of harm was created, and the defendant had a duty to warn, when a temporary clothing rack was used for the same purpose, in the same manner, and in accordance with the same or a similar store policy.

Finding Ms. Ray failed to come forward with evidence sufficient to create a genuine dispute for trial on the essential elements of her claim, the court granted Stage’s motion and dismissed Ms. Ray’s claims.

Take-Away: The mere presence of an obstacle in a store, such as a temporary clothing rack, does not create an unreasonable risk of harm when the condition is open and obvious. Additionally, a store employee’s use/maintenance of a temporary rack or display case does not amount to a failure to use reasonable care unless the claimant can show that the employee’s conduct violated a store policy or was otherwise unreasonable. In order to avoid such claims, retail store owners should take steps to implement a feasible store policy on proper use and maintenance of temporary racks and/or display cases and to train employees to ensure routine compliance with that policy.

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

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To Grandmother's House We Go . . . At Your Own Risk.

On April 15, 2012, 37-year-old Angela Lawrence agreed to go over to her grandmother’s house and climb up on the roof to clear off some limbs and debris, as she had done several times before. Because the extension ladder Lawrence normally used had been stolen, her grandmother, Dorothy Dell Sanders, suggested that she use an A-frame ladder stored in Sanders’ shed. Lawrence initially suggested waiting to get an extension ladder, but ultimately used the A-frame ladder to get on the roof of the house without a problem. However, when Lawrence was coming down off of the roof, the ladder shifted and she fell to the ground, resulting injuries to her wrist, neck, and back. Lawrence then filed suit against Sanders and Sanders’ insurer, Allstate Insurance Company, in Louisiana state court, alleging negligence in failing to have safe equipment for her to use, failing to maintain the equipment in a safe condition, and providing faulty and damaged equipment. 

Sanders and Allstate moved for summary judgment, arguing that Lawrence was in the best position to determine if the ladder was unsafe before she used it to climb onto the roof. Lawrence countered by arguing that a genuine issue of material fact existed as to whether it was unsafe to use the ladder, and that the main question was whether Sanders was negligent for failing to have someone hold the ladder for her, or for failing to provide an extension ladder instead.   The trial court held that there was no genuine issue of material fact as to alleged defect in the ladder or Sanders’ alleged negligence, and granted summary judgment in favor of Sanders and Allstate. Lawrence appealed the decision to the Second Circuit Court of Appeals. Lawrence v. Sanders.

The Second Circuit first turned to the issue of Sanders’ alleged negligence under La. Code Civ. art. 2315 (pdf), beginning with an inquiry as to whether Sanders had a duty to hold the ladder for Lawrence, or find someone else to do so. At the outset the Second Circuit cited the Louisiana Supreme Court’s holding in Bufkin v. Felipe’s Louisiana, LLC, which held that “a defendant generally does not have a duty to protect against that which is obvious and apparent.” The Second Circuit also looked to the First Circuit’s decision in Barrow v. Brownell,  In Barrow, the court held that a handyman who fell off of a ladder while taking down Christmas lights was not owed a duty by the homeowner or her insurer, because the handyman alone decided when, where, and how to do his job, and his fall occurred as a result of the manner in which he did the job. Lawrence attempted to distinguish her case from Barrow, saying that Sanders instructed her to use the A-frame even after she expressed concerns about it. The Second Circuit rejected this argument, noting that in her deposition, Lawrence stated she had performed the task of cleaning her grandmother’s roof at least 20-24 times before. Further, Lawrence agreed to use the A-frame ladder, even though she Sanders was not upset with the suggestion to wait for an extension ladder. Finally, Lawrence admitted that she never asked anyone to hold the ladder. Based on these facts, the Second Circuit found that: (1) Lawrence was in a better position than Sanders to determine if the ladder was inadequate for the task; (2) the hazards in the use of the ladder were obvious and apparent to Lawrence; and (3) Lawrence decided when, where, and how to do the job. Therefore, the Second Circuit held that Sanders did not owe a duty to Lawrence and affirmed dismissal of the negligence claims. 

As to Lawrence’s allegation that her injuries were due to a defect in the ladder under La. Civ. Code art. 2317 (pdf), the Second Circuit began its analysis by noting that Lawrence had the burden to prove: (1) the ladder was in Sanders’ custody; (2) that the ladder contained a defect which presented an unreasonable risk of harm to others; and (3) that the defective condition caused the damage and Sanders should knew or should have known of the defect. 

As to the first element, there was no dispute that the ladder was in Sanders’ custody. But as to the second element, the Second Circuit held that Lawrence failed to meet her burden to establish the existence of a defect, an essential element to her claim. The Court held that there was no factual support for the claim that the ladder was defective, citing Lawrence’s deposition testimony that “she did not look at [the ladder]” before climbing on the roof or after her fall, and further stating that Allstate “didn’t say it was damaged or anything,” upon examining the ladder. The Court also rejected Lawrence’s attempt to argue that the ladder was too short for the job, ruling that the height of the ladder could not meet the definition of “an imperfection pos[ing] an unreasonable risk of injury to persons exercising ordinary care and prudence. Finally, as to the last element, the Court pointed to the fact that Lawrence used the ladder to safely get onto the roof, and failed to provide any evidence that the elderly Sanders, who remained in the house while Lawrence used the ladder, should have known of the defect. Therefore, the Second Circuit affirmed the trial court’s summary judgment against Lawrence on the allegations of defect. 

Take-Away: An owner is not automatically liable for injuries sustained by someone performing a task on his property, particularly if the one performing the task: (1) is in the best position to determine the risk of harm and (2) controls when, where, and how to do the task.     


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