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.


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.

Existence of Oil Slick Alone Not Enough

On January 3, 2009, Karen Finley slipped and fell on an oil slick in the parking lot of a Racetrac convenience store in Shreveport, Louisiana. Finley sued Racetrac under La.R.S. 9:2800.6 (pdf), which requires plaintiffs to prove several elements in order to succeed on a premises liability claim. To satisfy the statute’s second element, a plaintiff must establish that the defendant created the dangerous condition, knew of it, or had constructive knowledge of it prior to the accident.

A defendant has constructive knowledge of a dangerous condition when the circumstances show that he should have known of the condition. When relying on constructive knowledge, a plaintiff must show that the dangerous condition existed for a period of time sufficient to place the defendant on notice of its existence. A plaintiff is not required to prove with eyewitness testimony that the hazardous condition existed for a certain number of minutes or hours. Instead, the court can infer from the circumstances surrounding the fall that it is more probable than not that the condition existed long enough prior to the fall for the defendant to have discovered and corrected it.

Finley alleged that Racetrac either knew or should have known of the dangerous condition the oil slick created, and she claimed her injuries would not have occurred if Racetrac had taken reasonable steps to clean up the oil. Despite Finley’s accusations, the trial court granted summary judgment in favor of Racetrac. The court found that Finley was unable to show Racetrac knew or should have known of the oil slick prior to her fall. The court also found that Finley was unable to establish the amount of time the hazardous condition had been present; and as a result, the court could not infer that Racetrac had sufficient notice of the hazard. Finley appealed the judgment of the trial court.

On appeal, in an attempt to establish the amount of time the oil slick existed prior to her fall, Finley relied on a cell phone photograph showing that the oil had begun to soak into the concrete at the time she slipped on it. She claimed the photograph showed that the oil was present for a sufficient amount of time to place Racetrac on notice of the dangerous condition. However, the appellate court disagreed with Finley and found that the photograph, which was taken after her fall, proved only that the oil slick existed. Because Finley could not prove Racetrac had constructive notice of the dangerous condition, the appellate court affirmed the trial court’s conclusion that Racetrac was entitled to summary judgment.

Take-Away:  In a slip and fall case, the mere existence of a dangerous condition is insufficient to establish liability against a premise owner where there is no evidence of how long the condition existed prior to the accident or that the premise owner knew of the condition before-hand.

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

Operator Error: Understand Your Insurance Coverage

The plaintiff Bernadette Rubin (the “customer”) was allegedly injured in a slip-and-fall accident at a Super 1 Foods grocery store owned by Brookshire Grocery Company. The store was built by Ridgemont, a general contractor, pursuant to a construction contract between Brookshire and Ridgemont. In the lawsuit initiated by the customer against the store owner, the store owner filed a third party complaint against the general contractor and its liability insurer, Amerisure, alleging: (1) the contractor owed the store owner tort contribution because the contractor was at fault; (2) the contractor contractually agreed to indemnify and procure insurance coverage for the store owner; and (3) the store owner was entitled to insurance coverage under the Amerisure policy issued to the contractor. In response, the contractor and its insurer filed a motion for summary judgment seeking dismissal of the claims filed by the store owner on the following grounds: (1) any contractual indemnification obligation owed by the contractor to the store owner was null and void under Louisiana law; and (2) the store owner was not an insured under the insurance policy issued to the contractor.

 In considering the summary judgment arguments, the court first noted that as the store owner did not argue it was a named insured under the policy, the question becomes whether the owner was an additional insured under the policy. On that issue, the store owner argued that under the relevant provision of the policy—the Contractor’s Blanket Additional Insured Endorsement—it was an additional insured under the policy. The court, however, noted that the building contract only required the general contractor to purchase and maintain “completed operations” coverage, noting that the Endorsement makes clear that the policy expressly limits coverage for an additional insured to “liability arising out of . . . your ongoing operations, unless the written contract or written agreement also requires completed operations coverage (or writing to the same effect), in which case the coverage provided shall extend to your completed operations for that additional insured.” The court further noted that pursuant to the contract, the contractor was only required to include the store owner as an additional insured under the Amerisure policy from the “date of commencement until date of final acceptance.” And, the contractor was only required to purchase insurance to protect the contractor from claims for damages because of bodily injury “which may arise out of or result from the contractor’s operations under the contract.” Although the contract did not define “operations,” the Court interpreted the term to mean actual operations, or work of the contractor while the grocery store was being constructed, and found that the contract did not require insurance for damages arising out of the result of completed operations, particularly as the policy defines the term. Accordingly, the court held that the store owner was not an additional insured under the policy after the construction of the store was completed, which was when the customer was allegedly injured in a slip-and–fall accident on the premises, and thus there was no coverage under the contractor’s insurance policy.

Take-Away: It is of the utmost importance that premise owners fully understand the scope and nature of any insurance coverage they may have, or not have, to ensure they are properly protected against any risk or loss.

This article was co-authored by Edie Cagnolatti, counsel at Irwin Fritchie Urquhart & Moore LLC. 

To State The Obvious - Expert Testimony On Issues Of Common Knowledge Will Be Excluded

When a guest of the New Orleans W Hotel was traveling across the hotel’s lobby, she tripped over a low-lying, mirrored coffee table and cut her hand on broken glass. She underwent two surgeries to correct her injuries. 

The guest filed suit in Louisiana state court against Starwood, the owner and operator of the hotel, alleging violations of the Louisiana Merchant Liability Statute, as well as the Civil Code article which holds owners of things liable for damages caused by a ruin, vice or defect in an object. Starwood removed the matter to federal court on the basis of diversity jurisdiction. Both parties retained experts to support their respective positions on the safety of the table’s position in the lobby, and Starwood filed a motion in limine to exclude the guest’s proffered expert witness, Lance S. Roux. 

In his report, Mr. Roux opined that the mirrored coffee table reflected the rug that it sat on, making it difficult to distinguish between the floor and table. Furthermore, “if safety standards, regulations and recommended safety practices for pedestrian walkways had been applied and adhered to,” the injury could have been avoided. To reach this conclusion, he relied on a site inspection, photos and video of the injury, a statement of the guest, and the hotel incident report.

Under the controlling case law, a district court may exclude expert testimony if the subject matter and opinions are matters that a fact-finder can deal with competently based on common sense and knowledge of the world.   Applying this principal to the matter at hand, Judge Barbier held that the incident – tripping over a coffee table – did not present unique issues, and the jury was capable of evaluating the situation based on its common knowledge and experience. He further held that the fact that the table was mirrored did not elevate the situation to “extraordinary.” Since the expert testimony would not assist the fact-finder in understanding the evidence or determining a fact in issue, the Plaintiff’s expert was excluded. 

Take-Away: Before investing in an expert witness, premises owners should take caution to ensure that the contemplated expert opinions involve unique issues that will provide the fact-finder with information he would not otherwise know through his/her own ordinary experience.

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

Without Causation, Plaintiff's Claims are Cut Loose (on the Dance Floor)

On May 20, 2011, Lisa Carney and her friend Daven Hill decided to hit the dance floor at the Celebrity Lounge in the Eldorado Casino Resort in Shreveport. While dancing at the Lounge, Carney and Hill observed some pieces of glass on the left side of the dance floor and told a bartender about it. Carney and Hill then returned to another area of the dance floor and had only been dancing a short while, when suddenly the top of Carney’s right foot was severely cut. Neither Hill nor Carney observed how Carney’s foot was cut, and Hill said she had not seen any glass in the area where they were dancing at that time. 

An Eldorado employee placed Carney in a wheelchair and she was taken out of the Lounge. At the employee’s request, Carney wrote a statement about the incident, writing that she was “dancing on stage and glass hit my foot.” An Eldorado Security Manager also filled out an incident report and noted Carney stated that “she was dancing and an unknown guest dropped a drink glass on the dance floor causing a piece of glass to hit the top of her right foot.”

The day after the incident, Carney made a visit to the emergency room, where the physician told her she had sustained a laceration to the top of her right foot with “impaired tendons.” Carney then filed a petition for damages against Eldorado Resort Casino in the First Judicial District Court for the Parish of Caddo. The trial court issued judgment in favor of Eldorado, dismissing Carney’s claims, finding that the Merchant Liability Statute (pdf), was inapplicable because Carney’s injuries were not caused by a “fall.” The trial court further found that Carney failed to produce evidence sufficient to meet the burden of proving that her injury was caused by broken glass on the floor, rather than by another patron dropping a glass near her or stepping on her foot. 

Carney appealed the judgment to the Louisiana Second Circuit Court of Appeals, Carney v. Eldorado Resort Casino Shreveport, arguing that the trial court should have applied the Merchant Liability Statute to the lawsuit because it involved the safety of a merchant’s premises. On appeal, the Second Circuit agreed with Carney in part. The appellate court found that the Merchant Liability Statute was applicable because the lawsuit alleged liability against a merchant for a patron’s injuries resulting from an accident on the merchant’s premises. However, the appellate court also held that the trial court properly found Subsection (B) of the statute inapplicable, because it addressed damages “sustained because of a fall,” and Carney’s alleged injury did not involve a fall. Applying Subsection (A) of the statute instead, the appellate court noted that although the merchant is required to keep the premises safe from unreasonable risks, “[a] merchant is not liable every time an incident happens.” Therefore, the appellate court agreed with the trial court’s ruling that Carney had the burden of proving that: (1) Eldorado owed her a duty; (2) Eldorado breached that duty; and (3) the breach was a cause of her injury. 

The appellate court then applied La. Rev. Stat. Ann. § 9:2800.6(A) to conduct a duty-risk analysis of Carney’s claim, which first required Carney to prove that Eldorado’s conduct was a “cause-in-fact” of the cut on her foot. This placed the burden on Carney to show that she would not have cut her foot but for Eldorado’s conduct. First, the appellate court looked to Carney’s own testimony that she did not know how her foot was injured, as well as her admissions that the cut might have resulted from another dancer dropping a drink on the floor, and that she “just assumed” the cut was from the glass which she and Hill had seen on the floor earlier. The appellate court then noted Hill’s testimony that the glass she and Carney had seen on the floor earlier was in a different area than where they were dancing when Carney’s foot was cut. This testimony of Carney and Hill, combined with the Eldorado Manager’s incident report, suggested to the appellate court that “[Carney]’s injury was caused by another patron who was not in [Eldorado]’s control and [Eldorado] could not have prevented the injury in the exercise of reasonable care.” Accordingly, the appellate court found no manifest error in the trial court’s decision that Carney failed to prove causation, and affirmed judgment in favor of Eldorado. 

Take-Away: A merchant is not per se liable every time a patron is injured on its premises; the plaintiff still has the burden of proving that the merchant’s conduct somehow caused the injury. And when the injury is caused by the conduct of another patron who is not in the merchant’s control, the merchant cannot be held liable.   

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

"Clean" Slip Can Defeat Defendant's Motion for Summary Judgment

The plaintiff, Dorcus Williamson, was walking into a stall in the women’s bathroom of a Wal-Mart, when she slipped on a wet substance on the floor and fell. Mrs. Williamson and her husband filed suit against Wal-Mart for her injuries pursuant to La. R.S. 9:2800.6 (pdf). Wal-Mart then filed a motion for summary judgment with the trial court on the grounds that the Williamsons (“the plaintiffs”) were unable to produce any factual evidence to establish that it had either actual or constructive knowledge of the slippery condition, and that they failed to establish the amount of time that the substance had been present on the floor. The trial court granted the motion and the plaintiffs subsequently filed an appeal, Williamson v. Wal-Mart Stores, Inc.

La. R.S. 9:2800.6 governs merchant liability for slip and fall cases and imposes upon a plaintiff the burden of proving three elements in order to prevail: 1) that the condition presented an unreasonable risk of harm to the claimant and that the risk of harm was reasonably foreseeable; 2) that the merchant either created or had actual or constructive notice of the condition causing the damage, prior to the incident; and 3) that the merchant failed to exercise reasonable care.


On appeal, the court determined that the trial court erred in granting Wal-Mart’s motion for summary judgment. Significant to the court was the collective testimony of Mrs. Williamson, Mr. Williamson, and a Wal-Mart employee, who testified that there was a wet condition on the floor and on Mrs. Williamson’s pants after her fall, and that the substance smelled like a pine oil cleaning solution. In addition, although the custodian on duty testified that he does not use pine oil cleaning solution, he stated that earlier that same day he had picked up a bottle of pine oil and placed it onto his cart, that later in the day he noticed that the cart was missing, and that Wal-Mart employees often took things from his cart. The court determined that this testimony supported the inference that a Wal-Mart employee, and not a patron of the store, created the hazard upon which Mrs. Williamson slipped. The court largely based this determination on the evidence that the substance was a cleaning supply and not a beverage or other substance that a patron would likely possess in the store. As a result, the court reversed the trial court’s judgment granting Wal-Mart’s motion for summary judgment and remanded the case to the trial court for further proceedings.


Take-Away: In a slip and fall case, the substance that allegedly caused the accident can play a crucial role in a court’s determination of whether or not the merchant created the hazard. Where it is unlikely that a patron possessed the substance at issue, a court may find that there is an inference that the store created the hazard, which can be enough to defeat a motion for summary judgment.


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

Smile, You're On Candid Camera

While shopping at a Brookshire Brothers' grocery store, Skylur Johnson slipped and fell on a wet substance on the floor in one of the aisles. Ms. Johnson claimed that as a result of the fall she sustained a medial meniscus tear to her right knee and also injured her right shoulder and arm. She later filed a lawsuit against Brookshire Brothers--Johnson v. Brookshire Brothers, Inc., alleging that Brookshire Brothers was liable to her under Louisiana's merchant liability statute, La. R.S. 9:2800.6 (pdf). In response, Brookshire Brothers filed a motion for summary judgment seeking dismissal of Ms. Johnson's claims. The company contended that Ms. Johnson could not demonstrate the necessary elements of her claim under 9:2800.6, which requires the plaintiff to prove: (1) the existence of a condition that presented an unreasonable risk of harm to the claimant; (2) that the merchant either created the condition, or had notice of the condition; and (3) that the merchant failed to exercise reasonable care.

In support of its summary judgment motion, Brookshire Brothers offered as evidence video surveillance footage of the accident that showed another customer dropping a jar in the aisle, disposing of the broken jar, and leaving the spill in the aisle. The footage also established that Ms. Johnson fell in the area where the jar was dropped less than five minutes after the spill occurred. Because the video footage clearly showed that another customer--and not an employee of the store--dropped the jar, the court focused on whether Brookshire Brothers had notice of the spill. The Court pointed out that in order to prove notice on the part of the store Ms. Johnson had to demonstrate that the spill remained on the floor for such a period of time that in the exercise of reasonable care Brookshire Brothers' employees would have discovered the spill.

In addressing this issue, the court considered a 1997 Louisiana court opinion cited by Brookshire Brothers in which the court held that a grocery store did not have notice of a banana peel that was left on the floor of a store aisle for five minutes prior to that plaintiff's fall. In that case, the evidence also showed that store personnel had been in the particular aisle shortly before the creation of the hazardous condition. The court noted that the case at hand was similar to the banana peel case in that the spill occurred within five minutes of the accident and store employees were in the area a short time before the spill occurred. Ultimately, the court granted Brookshire Brothers' motion and dismissed all of plaintiff's claims because the video surveillance supported Brookshire Brothers' assertions, and because Ms. Johnson failed to oppose any of these arguments.

Take-Away: A defendant in a slip-and-fall case can get the case dismissed early if it is able to establish that it did not create the complained of condition and that an insufficient amount of time passed between the time the condition came into existence and the accident.

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

A Video Is Worth a Million Words

On September 7, 2009, a grocery store patron named Kenya Blair visited a Brothers Food Mart to buys chips and soda. Upon entering the store, the patron passed in front of two aisles, and then went down the third aisle to the rear of the store where the drink coolers were located. She then started toward the front, proceeding down the middle aisle where the chips were located. There she slipped and fell on some fluid left on the floor by a mop, allegedly injuring her neck and back. She subsequently filed a lawsuit alleging personal injury claims against the store and its insurer in the Second Parish Court for the Parish of Jefferson. 

At the time the patron entered the store, a day laborer named “Jose” was mopping the floor. He had positioned a “Wet Floor” sign in front of the display racks between the second and third aisles. The patron testified that she entered the store and immediately proceeded to the back, and she did not notice either Jose or the “Wet Floor” sign at the front of the aisles.  She testified that there definitely was no “Wet Floor” sign located at the back of the store or in the middle aisle.  

A manager named Tony Abdel was present at the store at the time of the accident. He testified that he saw the patron fall while behind the counter at the front of the store. He testified that the appropriate procedure for mopping the floor is to put down three “Wet Floor” signs, then sweep the floors, and then mop with a mixture of water and bleach.  Further, he testified that one of the “Wet Floor” signs is supposed to be placed in the front of the store, and the other two signs are supposed to be moved to each section as it is mopped.  And, he testified that all three “Wet Floor” signs were in use and properly placed at the time of the accident, including a sign in the aisle being mopped.  

A cashier named Hannah Vancour was behind the front counter facing the aisles on the date of the accident.  She testified that she saw a “Wet Floor” sign directly in front of her and another in the center aisle where the patron fell. Notably, however, the cashier acknowledged that she was in a personal relationship with the manager.

A videotape of the accident was introduced into evidence at trial.  It showed Jose mopping the floor at the center aisle, and moving the “Wet Floor” sign at the front of the store.  The videotape did not show the back of the store or the bulk of the aisles, and it did not show Jose moving any other “Wet Floor” signs or placing a “Wet Floor” sign in the center aisle. At trial, the manager admitted that there were eight to ten video cameras placed in various areas of the store.  He testified that he saved only the video of the front of the store because it provided the best view of the accident.

Following trial, Judge Roy M. Cascio rendered judgment in favor of the patron plaintiff and awarded damages. The Court found that the hazard on the aisle floor created an unreasonable risk of harm and that the store failed to exercise reasonable care. Concerning the latter holding, the Court found that no “Wet Floor” sign was placed in the aisle or at the back of the store where the patron entered the middle aisle.   

The store appealed to the Louisiana Fifth Circuit Court of Appeals, arguing that the trial court erred in finding the store liable and in failing to assess comparative fault to the patron. The Court of Appeals affirmed the judgment of the Trial Court. The Court reasoned that there was sufficient evidence to support the Trial Court’s holdings, including the patron’s testimony. In addition, the Court was particularly moved by the fact that the manager testified that there were eight to ten surveillance cameras in the store providing eight to ten different views of the store, yet he only retained one of those eight to ten different views. The Court noted that there is a legal presumption that evidence that a litigant fails to produce is detrimental to his case, unless the failure to produce the evidence is adequately explained. And, the Court concluded: “Surely at least one, and perhaps several of those views, would have provided a view of the ‘Wet Floor’ sign, had it been in the wet aisle.  It is a fair conclusion of fact that the missing camera views were not favorable to the party which erased them.”

Take-Away: Save all your video footage from the date of an accident. While only a few minutes of footage from one or two cameras may, at first, appear to capture every relevant detail, you may discover later that other footage from those same or different cameras would have been the difference between winning and losing a case.

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

Without evidence of Wet Floor, Plaintiff's Claims Dry Up

The plaintiff, Kathleen Tilden, was walking into the dining area of Tommy’s, a restaurant in New Orleans, when she slipped and fell. As a result of the fall, Mrs. Tilden allegedly suffered injuries to her neck, shoulder, and back. Mrs. Tilden and her husband filed suit against the restaurant alleging that she fell as a result of a wet surface. At trial, the court first excluded testimony from the plaintiffs’ witnesses who claimed that the restaurant placed rugs onto the floor after the accident, on the grounds that the placement of the rugs constituted a subsequent remedial measure. The plaintiffs attempted to argue that an exception to that general rule should apply, allowing such evidence to be admitted to attack the restaurant owner’s credibility.  The court determined that the owner’s previous testimony did not deny use of the rugs; therefore a credibility attack on those grounds was baseless. 

During the trial, the plaintiffs produced a number of witnesses to Mrs. Tilden’s fall. None of the witnesses, however, could identify any particular defect or condition of the floor that caused her to fall. Although the plaintiffs generally asserted that the floor was slippery, none of the witnesses testified that they had felt any moisture on the floor or had seen any evidence that Mrs. Tilden’s clothes were wet after the fall. The jury concluded that no condition caused Mrs. Tilden’s fall, and therefore assessed no fault to the restaurant. Mrs. Tilden filed an appeal, Tilden v. Blanca.

On appeal, the plaintiffs asserted that the trial court erred in excluding evidence regarding the placement of additional rugs after the accident. The plaintiffs argued that the evidence was admissible to (a) attack the restaurant owner’s credibility, and (b) as an admissible remedial measure. The Louisiana Fourth Circuit Court of Appeal disagreed. Under Louisiana law, a subsequent remedial measure, such as the restaurant’s use of rugs on the floor after an accident, cannot be admitted into evidence to prove negligence or culpable conduct. Instead, it can be used for a number of limited purposes, one of which is to attack a witnesses’ credibility. The Fourth Circuit agreed with the trial court, and found no credibility issue with the owner’s prior testimony. The court next determined that there was no evidence that the restaurant had used the rugs until after the fall, rendering evidence of their use inadmissible as a subsequent remedial measure.

Finally, the court determined that even if the trial court erred in excluding witness testimony on the rugs, the plaintiffs still failed to meet their burden under Louisiana Revised Statute 9:2800.6(B)  (pdf) because none of plaintiffs’ witnesses could identify or produce evidence of the cause of Mrs. Tilden’s fall.

Take-Away: In Louisiana, subsequent remedial measures are inadmissible as evidence on behalf of the plaintiff, save for a few, limited exceptions. In addition, a plaintiff must present some evidence to support a cause of a slip and fall claim brought under Louisiana Revised Statute 9:2800.6(B).

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