Not a Stairway to Heaven: Churchgoer Trips on Church Steps

Carla Boutin brought a negligence action against the Roman Catholic Church of the Diocese of Baton Rouge, St. Joseph Catholic Church, and their insurer, Catholic Mutual Group, for injuries sustained as a result of falling down a set of stairs while exiting a church.   She claimed that the surface near the church stairs was uneven, causing her to trip and fall. The trial court rejected Ms. Boutin’s arguments and granted summary judgment in favor of the defendants. The appellate court affirmed and held that the plaintiff could not establish that a defect existed in the steps that posed an unreasonable risk of harm, nor could she establish that the defendants knew or should have known about the defect prior to the incident.

Under Louisiana law, a person alleging the negligence or strict liability of a building owner must prove: (1) the property presented an unreasonable risk of harm; (2) the building owner knew or should have known of the defect; and (3) the damage could have been prevented by the exercise of reasonable care and the owner failed to exercise such reasonable care. To prove the second element, a person must establish that the building owner either knew of the defect or through the exercise of ordinary care and diligence should have been aware of the defect that gave rise to the injury. In this case, Ms. Boutin failed to prove that the stairs presented an unreasonable risk of harm. The appellate court noted that photographs reflecting the condition of the steps established that they were not broken, missing, slanted, or uneven.   Moreover, affidavits from two church officials responsible for the maintenance and care of the building established that the defendants were not aware of any alleged defect in the steps. Ms. Boutin on the other hand failed to offer any factual evidence in support of her claim. In light of these facts, the court concluded that even if the stairs presented an unreasonable risk of harm, “there is no reason to conclude that such defect, which is not discernable from the photographs, should have been discovered by the defendants by reasonable inspection."

Take-Away: Although building owners are only responsible for a defect in their premises if they knew or should have known of the defect at the time of the accident, in order to minimize personal injury claims arising out of a fall on the premises, owners should carefully monitor the condition of their property and remedy any defects that may manifest themselves.

This article was co-authored by David Moore, Jr., a 2015 summer associate at Irwin Fritchie Urquhart & Moore LLC.

Actual Proof Required - Plaintiff's Claim that Because She Slipped There Must Have Been a Hazard Dismissed

On a rainy morning, plaintiff arrived at Dillard’s for a make-up appointment just as the store opened. Plaintiff recalled that the store entrance had mats, and assumed that she wiped her feet on them. As she walked toward the escalator, plaintiff slipped and fell. She testified that she felt as if she had stepped on “ice or something.” However, neither she nor the employees who came to her aid could identify any substance on the floor. Plaintiff sued Dillard’s, claiming that the store did not exercise reasonable care to keep its aisles free of hazardous conditions.

The court determined that the Louisiana Merchant Liability Statute, R.S. 9:2800.6, governed the plaintiff’s claim. That law requires a plaintiff who claims to be injured because of a fall on a merchant’s premises to prove, in addition to all other elements of her cause of action, the following:

  1. That the condition presented an unreasonable, foreseeable risk of harm;
  2. That the merchant either created the condition or had actual or constructive notice of the condition prior to the accident; and,
  3. That the merchant failed to exercise reasonable care.

The court found that in order to prove a merchant breached its duty, a plaintiff must make a “positive showing” that the hazardous condition existed for so long before the fall that a reasonable merchant would have discovered it. A plaintiff who merely shows that a hazardous condition existed, without additional evidence as to when it appeared, has failed to carry the burden of proving constructive notice.

Plaintiff argued that there must have been a dangerous condition present because that was the only explanation for her fall. Plaintiff assured the court that she was very familiar with the shoes she was wearing and had not slipped in them before. The court rejected this argument. It reasoned that plaintiff’s theory failed to consider the possibility that, for example, her own conduct caused the fall. The court held that the argument that the unsafe condition was “obvious” because of the fall did not amount to the positive evidence required by law. The court found there was simply no factual or evidentiary support for the plaintiff’s claim.

In order to prove the notice element, plaintiff argued that because the store had just opened, Dillard’s had exclusive control over the area of the slip. Therefore, according to plaintiff, Dillard’s must have either created the condition or allowed it to exist for hours. The court rejected this argument as well. The court reasoned that the mere fact employees were in the store was irrelevant. Further, the court specifically noted that merchants do not have the burden to prove the absence of a spill. Instead, the court found, without any actual evidence of the length of time the alleged hazard existed, plaintiff failed to prove the notice element of her claim. Thus the court here held that after admitting she did not know whether the defendant’s employees created or knew of the alleged hazard, did not know how long the alleged hazard existed before she slipped, and did not even know what the hazard was, the plaintiff failed to meet her burden of proof under R.S. 9:2800.6. Therefore the court granted summary judgment for the defendant, dismissing plaintiff’s claims with prejudice.

Take-Away: Business owners are not insurers for their customers, absolutely liable for any injuries on their premises. Rather, a plaintiff who slips and falls in a business must make a positive showing that a hazard existed and that it was present for an unreasonably long time. The act of falling alone proves neither.

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

Plaintiff's Claim Against Building Lessor Slips Away Due to Failure Of Building Lessee to Notify Lessor Of Mildew on Sidewalk Where Plaintiff Fell.

Reba Campbell brought a negligence action against the Evangeline Parish Police Jury (building lessor) and the State of Louisiana, Department of Health and Hospitals (building lessee) for injuries she sustained as a result of slipping on a mildewed sidewalk outside of the Evangeline Parish Medicaid Office. The State asserted a cross-claim against the Police Jury, claiming that its lease required the Police Jury to maintain the sidewalks and to indemnify the State for any damages assessed due to the Police Jury's negligence. Campbell filed a petition for declaratory judgment seeking a determination of whether the Police Jury would be responsible for damages pursuant to the indemnity provision.

The trial court determined that although the lease required the Police Jury to maintain the building and to correct any problems with the building once State employees reported them to the Police Jury, the State had not notified the Police Jury about the problem with the sidewalk. Therefore, the trial court held that the State was solely responsible for the plaintiff’s injuries because it did not take sufficient steps to insure the safety of its patrons. The State appealed, arguing that the trial court erred in interpreting the lease provisions to require that the State identify dangerous conditions and notify the Police Jury about them for repair.

The Louisiana Third Circuit Court of Appeal observed that in addition to requiring the State to identify dangerous conditions and notify the Police Jury about them for repair, the lease also rendered the Police Jury responsible for any damages resulting from its negligence in properly maintaining the premises. Therefore, the Third Circuit reasoned that the heart of the dispute was whether the Police Jury had activated the indemnification clause of the lease through negligent maintenance of the building. In addressing the liability of both the Police Jury and the State, the Third Circuit looked to Louisiana Revised Statute 9:2800 (pdf) andCivil Code article 2317 (pdf). Together, those provisions provide that a public entity is responsible for damages caused by a thing if (1) the public entity had custody or ownership of the defective thing, (2) the defect created an unreasonable risk of harm, (3) the public entity had actual or constructive notice of the defect, and (4) the public entity failed to take corrective action within a reasonable time.

The Third Circuit agreed with the trial court’s determination that Campbell had satisfied these elements with regard to her claim against the State but not with regard to her claim against the Police Jury. The Third Circuit determined that the State had not notified the Police Jury about the defective portion of the sidewalk. As a result, the Third Circuit found that the notice requirement of La.R.S. 9:2800 was not satisfied and the indemnity provision of the lease was inapplicable.

Take-Away: According to Louisiana law, a public entity can only be held liable for a defective building that it has in its custody or control if the entity has notice of the defect.

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

Not a Basket Case-Case against Store Owner Dismissed After Plaintiff Fails To Prove Conduct of Store Employee Caused Her Injuries

A customer brought suit for damages against Market Basket Stores (“Market Basket”) for alleged injuries sustained while shopping with her cousins at the defendant’s store. The customer claimed to have suffered an injury to her right ankle after being struck by a stock cart which was recklessly operated by a store employee. The customer underwent surgery on her ankle approximately two years after the alleged accident.

In a negligence case against a property owner, a customer is required to prove five separate elements: (1) that the property owner had a duty to conform his conduct to a specific standard; (2) that the property owner’s conduct failed to conform to that standard; (3) that the substandard conduct was a cause-in-fact of the customer’s injury; (4) that the property owner’s substandard conduct was a legal cause of the customer’s injury; and (5) that the customer suffered actual damages. To prove the fourth element, legal causation, the customer must establish through medical or lay testimony that his injuries were more probably than not caused by the accident. The trial court entered judgment in favor of Market Basket after determining the employee was not at fault in causing the alleged injury; therefore, the issue of causation was not addressed.

The appellate court reversed the trial court’s finding of no fault on the part of the employee. In coming to this conclusion, the court relied on the fact that the employee was in exclusive control of the stock cart at the time of the accident. And, there was no reasonable factual basis for the jury to find the employee was without fault given that (1) no one else had control of the cart and (2) no one testified to the contrary. Despite this finding, the appellate court ultimately affirmed the trial court’s judgment in favor of Market Basket after determining the customer failed to prove the legal causation element of her claim. First, the court noted that although the store employee admitted an accident occurred, he unequivocal denied that the cart made contact with the customer. Furthermore, the employee testified that the customer told him she was fine and walked away after the accident like nothing happened. Finally, the court found critical inconsistencies and serious credibility issues with the testimony produced by the customer to prove legal causation. For example, the customer claimed to have been pinned under the cart after the accident, but the two witnesses she produced failed to verify that claim. 

Take-Away: Even when a store employee is at fault in causing an accident, a plaintiff must prove that his injuries were caused by the employee’s conduct. It therefore is important that the store owner document each party’s version of the incident, along with any available witnesses’ version; have the involved employee describe the events of the accident; and document the customer’s physical condition immediately after the incident occurs.

This article was co-authored by Gary Langlois, Jr., a summer associate at Irwin Fritchie Urquhart & Moore LLC.

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. 

Katrina Claim Survives Because of Relation Back Doctrine

On August 4, 2006, Chinita Weber filed a lawsuit against Metropolitan Hospice alleging wrongful death and survival claims on behalf of her aunt, Mary London, who died at the facility in the days following Hurricane Katrina. The hurricane impacted the New Orleans area on August 29, 2005. Ms. Weber asserted that Metropolitan Hospice was negligent in causing her aunt’s death for two reasons. First, the facility was negligent in failing to evacuate in advance of Hurricane Katrina. Second, the facility was negligent in failing to provide adequate backup electrical power, thereby subjecting her aunt to extreme heat and unsanitary conditions, which she claimed ultimately caused her aunt’s death.

Metropolitan Hospice filed an exception of no right of action, arguing that the Louisiana statutes governing wrongful death and survival claims did not allow Ms. Weber the right to bring such claims on behalf of her aunt. Louisiana law permits only limited classes of beneficiaries to bring such claims, and a niece does not qualify as such a beneficiary. The trial court granted the exception, but allowed Ms. Weber thirty days to amend her petition to properly state a claim.

Ms. Weber had herself appointed as representative of her aunt’s succession, and filed an amended petition asserting wrongful death and survival claims as her aunt’s succession representative. Metropolitan Hospice responded by filing two exceptions: (1) an exception of no right of action arguing that as succession representative, Ms. Weber had no right to assert a wrongful death claim, and (2) an exception of prescription arguing that Ms. Weber’s survival claim was not timely asserted. The trial court granted both motions, and Ms. Weber appealed.

On appeal, the appellate court affirmed in part and reversed in part the trial court’s decision. With regard to the exception of no right of action, the appellate court affirmed the trial court’s dismissal of Ms. Weber’s wrongful death claim because Louisiana law does not allow a succession representative the right to bring a wrongful death claim. Nevertheless, the appellate court noted that a successor representative does have the right to bring a survival claim on behalf of the deceased person. Thus, whether Ms. Weber could continue pursuing the survival claim hinged on whether the appellate court agreed that the survival claim was untimely.

Louisiana law requires that survival claims be filed within one year from the date of the decedent’s death. While undoubtedly Ms. Weber filed her original 2006 lawsuit within one year of her aunt’s death, the key issue was whether the filing of her amended complaint in 2011 could relate back to the date that she filed her original lawsuit on August 4, 2006.

In accordance with Louisiana’s relation back doctrine, four factors determine whether an amended petition that either adds or substitutes a plaintiff can be treated as if it were filed on the date that the original petition was filed. They are: (1) if the amended claim arises out of the same conduct, transaction or occurrence as the original claim, (2) the defendant knew or should have known of the involvement of the new plaintiff, (3) the new and old plaintiffs are sufficiently related so that the new party is not entirely new or unrelated, and (4) the defendant is not prejudiced in preparing its defense. The appellate court determined that Ms. Weber’s amended lawsuit met these requirements.

The court’s analysis did not end there, however. If Ms. Weber’s claims against Metropolitan Hospice could be considered medical malpractice claims rather than negligence claims, then her claims would still be untimely since Louisiana law requires that medical malpractice claims be filed within three years of the date of the decedent’s death without exception. Relying on other Louisiana decisions involving similar Katrina-related claims, the appellate court determined that Ms. Weber’s claims were not, in fact, medical malpractice claims. Accordingly, the court held that Ms. Weber’s survival claims were timely as her amended complaint related back to the date that she filed her original lawsuit.

Take-Away: In cases where someone has died as a result of the alleged negligence of a premises owner, the owner may be sued for damages sustained by the decedent prior to his death and damages sustained by surviving family members as a result of their loss. 

This article was co-authored by Lizzi Richard, 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.