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. 

The Mop (and Defendant's MSJ) Won't Hold Water

Plaintiff and her son stopped at Wendy’s for breakfast while traveling from Pontchatoula to Metairie for an early morning soccer game.  While in the restaurant, plaintiff slipped and fell in a puddle of water outside of the bathroom door.  Plaintiff sued Wendy’s for her injuries.  Wendy’s filed a Motion for Summary Judgment, arguing that plaintiff was unable to satisfy the second element of theLouisiana Merchant Liability Act (pdf).   In order to win a successful slip and fall claim, plaintiffs have the burden of proving the following: (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 constructive notice of the condition which caused the damage, prior to the occurrence; and, (3) The merchant failed to exercise reasonable care. 

Wendy’s argued that plaintiff was unable to establish that they had either created or had constructive notice of the water before plaintiff fell.  In its opposition to defendant’s motion, plaintiff cited the deposition testimony of Michael Pace, an employee who was working on the morning of the fall.  Mr. Pace testified that he had seen similar puddles of water in the area near where plaintiff fell once or twice per week in the early morning hours.  He attributed the water to the previous night’s mopping and explained that the area where plaintiff fell was a bit uneven with the rest of the floor, causing excess water to pool.  He testified that the water was likely the result of an employee failing to dry mop the floor correctly.  Mr. Pace also testified that the plaintiff and her son were among the first customers that morning, that the store was rarely busy that early in the morning, and that they eventually discontinued breakfast due to lack of business. 

Although Mr. Pace did not see the puddle prior to plaintiff’s fall, the court found that Mr. Pace’s testimony would support a verdict in plaintiff’s favor as to whether the merchant created the condition which caused the damage.  Defendant’s motion for summary judgment was denied as a matter of law.

Take-Away: Employee testimony regarding previous experiences with the same or similar allegedly dangerous condition can defeat defendant’s motion for summary judgment under the Louisiana Merchant Liability Act. 

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

Homebuilders Association Responsible for Fall During Parade of Homes Tour

In June 2008, Tammy Todd and her husband toured a home that was featured in the annual Bossier City Parade of Homes Tour, a collection of open houses showcasing newly constructed homes that was sponsored and promoted by the Home Builders Association of Northwest Louisiana (“HBA”). After viewing a room over the garage, Mrs. Todd allegedly fell at the bottom of a flight of stairs leading back to the garage and injured herself. She and her husband filed suit against the builder, his company, and his insurer as well as the HBA and its insurer (Louisiana is a direct action state). Plaintiffs alleged that the threshold where Mrs. Todd fell was unfinished and that this condition caused her to catch her foot or lose her balance.   They further alleged that the builder and the HBA were negligent in allowing her access to an unfinished and unsafe area of the house, failing to warn of the unsafe area, and failing to properly supervise the open house.

The HBA and its insurer filed a peremptory exception of no cause of action asserting that the plaintiffs failed to state a claim against the HBA under Louisiana Civil Code Article 2317.1 (pdf), which governs the liability of the owner or custodian of a thing for damage caused by ruin, vice, or defect in things. The plaintiffs responded by claiming that they had alleged sufficient facts in a “straightforwardArticle 2315 (pdf) action with a duty-risk analysis.” Civil Code Art. 2315 is Louisiana’s general negligence provision. The trial court sustained the exception and dismissed the claims against the HBA without prejudice but allowed the plaintiffs 15 days to replead their claim. They did so, alleging that the HBA had control over each of the houses included in the tour, that the HBA’s advertising informed invitees that it had inspected each house and found that it met HBA standards, and that the HBA, as a sponsor of the Parade of Homes, had a duty to protect invitees from any unreasonable risk of harm from a defective condition and to inspect the premises where plaintiff was injured.

The HBA and its insurer filed a motion for summary judgment arguing that the premises liability claims against them should be dismissed with prejudice because the HBA neither (1) created the alleged dangerous condition nor (2) owned, leased, possessed, or otherwise maintained custody or control of the premises where Mrs. Todd was injured. They also argued that the negligence claim against them should be dismissed. In its opinion, the Louisiana Second Circuit Court of Appeal agreed there was no lease to which the HBA was a party and that the HBA did not have possession or garde of the house. However, it found that the HBA was a sponsor that organized and advertised an event in which it “enticed invitees to view newly constructed houses for a fee.” Because the HBA was a sponsor soliciting patrons to a potentially defective setting, it had a duty to exercise reasonable care for the safety of its patrons.  That duty arose under Article 2315. The Second Circuit reversed the trial court’s granting of summary judgment in favor of HBA and its insurer, finding that whether the HBA breached its duty is a question of fact.

Take-Away: A party who does not own, lease, or have custody or control over a premises may nevertheless, in limited circumstances, potentially be responsible for injury at the premises under a negligence cause of action.

The Not-So-Happy Hour: Slip and Fall at O'Charley's

While dining at an O’Charley’s restaurant in Lake Charles, Louisiana, Carol Henry slipped on a puddle of water and fell. She claimed to have sustained various injuries, including blackout episodes. She filed a lawsuit against the restaurant under the Louisiana premises liability statute.  The statute imposes a duty on retailers and restaurants, such as O'Charley's, to exercise reasonable care to keeps floors in a reasonably safe condition for patrons.

To succeed under the premises liability statute, Ms. Henry was required to prove that the condition of O’Charley’s floor presented an unreasonable risk of foreseeable harm and that O’Charley’s either created the puddle or had knowledge of, or should have had knowledge of, the existence of the puddle and failed to clean it before she fell.

O’Charley’s filed a motion for summary judgment of Ms. Henry’s claim, arguing that there was no evidence that it knew or should have known of the puddle of water prior to her fall. In the event that the court denied its request, O’Charley’s also sought dismissal of her claim for damages relating to her alleged blackout episodes because there was no evidence that they were related to her slip and fall.  Five witnesses testified about the incident: Ms. Henry, her dining companion, and three of O’Charley’s employees. No one could say how long the water had been on the floor prior to Ms. Henry’s fall or that any of the O’Charley’s employees knew that the water was on the floor before she fell.

According to Louisiana law, in the absence of evidence that O’Charley’s knew, or should have known, of the water prior to her fall, Ms. Henry could still defeat O’Charley’s motion if she was able to show that the restaurant actually created the unreasonably dangerous condition. Ms. Henry presented evidence showing that employees often walked through the area where she fell carrying drinks and that the employees occasionally spilled drinks in that area. Moreover, the evidence also showed that restaurant patrons rarely carried drinks through this walkway unless they carried them to the bathroom, which was an anomaly. The court held that her evidence was sufficient to create an issue of fact for trial as to whether O’Charley’s created the hazardous condition, and thus, it denied O’Charley’s request for dismissal of Ms. Henry’s entire case.

The trial court, however, did dismiss Ms. Henry’s claim for damages related to “blackouts.” She had the burden of proving that it is more likely than not that her post-accident blackout episodes were caused by her slip and fall. The court reasoned that this was a medical issue, not within common knowledge. Therefore, Ms. Henry was required to have expert medical testimony that her blackouts were caused by the accident. She had no such expert, and the evidence showed that Ms. Henry actually suffered blackouts before her fall. Consequently, the court determined dismissal of her blackout claim was appropriate.

Take-Away:  In the absence of evidence that a restaurant owner knew or should have known of a dangerous condition, the injured party can only avoid dismissal of her claims if she is able to eliminate all possible causes of the dangerous condition, leaving one with the inescapable conclusion that the condition must have been created by the restaurant owner.

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

Rock Climber Left Hanging-Summary Judgment In Favor Of Rock Climbing Facility Upheld On Appeal

Carl Ravey was injured at Rok Haus climbing facility after his climbing partner – a fourteen-year-old member of the Hammond Civil Air Patrol (“CAP”) – failed to engage the locking device on his safety rope. Ravey was on a CAP field trip at the time of his fall. Ravey sued Rock Haus arguing that the facility had a heightened duty to provide training and supervision when minors were engaged in inherently dangerous activity, which it failed to provide. The trial court granted summary judgment in favor of the gym owner and Ravey appealed. 

The Third Circuit Court of Appeal began its analysis with the observation that gym owners or operators generally owe their patrons a duty of reasonable care to protect against injury on the premises. This duty includes ensuring that members know how to properly use equipment.  However, gym operators are not the insurers of the lives and safety of their patrons; they are only required to take reasonable precautions to avoid injury. Nor are they are not required to foresee and guard against all dangers potentially resulting from patron carelessness.

Turning to the activity at hand, the appellate court recognized that rock climbing involves inherent risk akin to other recreational activities such as swimming and weightlifting. And, because the risk involved in such sports is well recognized, gym operators must only provide a sound and secure environment to perform the activities; they are not required to remove all dangers inherent in such activities. Further, the age of the person engaging in risky recreational activity is not determinative of the gym operator’s duty.

First, the court found that Rok Haus did not breach its duty as a gym owner to ensure that its members know how to properly use gym equipment. Rok Haus visually inspected the equipment before and after Ravey’s fall and it functioned properly. Ravey’s group was instructed on how to climb the wall and use the equipment. Before Ravey’s group was allowed to climb the wall on its own, Rok Haus staff observed each of them using the equipment to lower climbers. Furthermore, Rok Haus staff continued to monitor the group after the instructions. Consequently, the court reasoned that Rok Haus acted reasonably in training the group on how to properly use the climbing equipment and that there was no evidence that a lack of supervision or training caused Ravey’s accident. Thus, the court concluded that Rok Haus was not negligent.

The court then turned to the issue of the adequacy of the training and supervision provided by Rok Haus. The court noted that before any patron was permitted to climb, Rok Haus required a “belay check” safety session during which patrons were assisted in donning harnesses and fastening safety ropes. Rok Haus staff also instructed climbers on how to climb the wall and properly use the equipment. This safety and training session lasted approximately fifteen minutes, after which two Rok Haus employees continued to monitor Ravey’s group. According to the court, Ravey failed to prove that his fourteen-year-old climbing partner required more training before he could safely climb. Consequently, the court determined that there was no evidence that Rok Haus failed to act reasonably in training and supervising Ravey’s group and the trial court’s granting of summary judgment in favor of Rok Haus was affirmed.

Take-Away:  Simply because a recreational activity such as rock climbing involves an inherent risk, does not create a duty on the part of a premise owner to remove all dangers inherent in such activity. Rather, an owner need only provide a sound and secure environment to perform the activity.

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

Just the Facts Ma'am

Plaintiff, a former contract employee at Citgo Petroleum Corporation, claimed that he was injured as a result of his exposure to high levels of toxic materials and irritants during his employment as a sandblaster/painter for approximately twenty years. He filed suit against Citgo alleging that the company failed to warn of dangers associated with his work and failed to provide a safe work environment. In turn, Citgo moved to dismiss Plaintiff’s claims in Roach v. Air Liquide America.

The court, in analyzing Citgo’s motion, noted that the standard under Federal Rule of Civil Procedure 12(b)(6) is that dismissal is warranted when the Complaint “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” In determining whether this standard is met, the Complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” And, under Louisiana Civil Code article 2317.1 (pdf), an owner or custodian of a thing is only liable if the thing was under the defendant’s custody, contained a defect that presented an unreasonable risk of harm, the defect caused the damages, the defendant knew or should have known of the harm, and the damage could have been prevented by the exercise of reasonable care.

In support of its motion, Citgo highlighted that plaintiff simply failed to allege any facts in support of his claims that Citgo failed to provide necessary protection, failed to warn of the risks associated with silica exposure, and failed to provide proper ventilation. Moreover, plaintiff did not provide facts regarding his claimed exposure to hazardous levels of silica, the frequency with which he was exposed, how Citgo knew of the alleged dangers, what Citgo could have done to prevent such alleged dangers, or any other circumstantial details.

The court ultimately agreed that the plaintiff failed to allege sufficient facts to support his claims. However, the court gave the plaintiff 30 days to amend his Complaint to allege sufficient facts, and if he failed to do so, the suit would be dismissed with prejudice.

Take-Away: Although a plaintiff often will be given an opportunity to amend a poorly pled Complaint, a defendant–employer should nonetheless seek dismissal of a plaintiff–employee’s premises liability suit where the Complaint is woefully inadequate. This action will force the plaintiff to either properly plead his case, or if he is unable to do so, abandon the lawsuit.

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

Give Them One and One-Half to Three Inches and They'll Take a Mile

Plaintiff, Paul Broussard (“Broussard”), a UPS delivery driver, sustained a serious back injury while maneuvering a loaded dolly into one of the misaligned elevators in the Wooddale Tower, a twelve-story, State-owned office building located in Baton Rouge. 

Broussard filed suit against the State alleging that the State was negligent in failing to properly maintain and adequately repair a defective thing within its custody and care, thereby creating an unreasonable risk of harm. The jury returned a verdict in favor of Broussard, specifically finding 1) the offset between the elevator and lobby floors created an unreasonable risk of harm, 2) the State had a reasonable opportunity to remedy the defect but failed to do so, and 3) the defect was the proximate cause of Broussard’s injuries. The jury apportioned 38% fault to Broussard and the remaining 62% to the State and awarded Broussard $1,589,890.23 in damages. Once Broussard’s damages were reduced in proportion to his assigned percentage of fault, the trial court rendered a judgment in the amount of $985,732.56.

The State appealed, Broussard v. State ex. rel. Office of State Bldgs. The Court of Appeal reversed, finding that the jury’s determination that the offset created an unreasonable risk of harm was manifestly erroneous. Applying the four-prong, risk-utility balancing test articulated by the Louisiana Supreme Court in Pryor v. Iberia Parish School Board, the Court of Appeal found that the elevator’s social utility outweighed the risk created by its defective, yet readily apparent condition. First, the towers elevators serve an extremely useful, maybe even indispensible, societal function. Second, the defect was open and obvious, thus not presenting a serious risk of harm; further Broussard admitted he was probably aware of the offset when he pulled the dolly into the elevator. Third, Broussard could have avoided injury by either dividing the boxes of paper into multiple, lighter loads or waiting for another elevator. Lastly, there was no record of the elevator’s defective condition causing any injuries in the past. The Court of Appeal found there was no reasonable basis to support the jury’s verdict, concluding the jury was manifestly erroneous in finding an unreasonable risk of harm.

In a per curiam opinion, the Louisiana Supreme Court reversed the Court of Appeal, finding the jury’s unreasonable risk of harm determination not manifestly erroneous, that the record contained a reasonable factual basis to support the jury’s finding that a one and a half to three inch offset between the floor of the elevator and the floor of the Tower’s lobby presented an unreasonable risk of harm. The Supreme Court further found a reasonable factual basis existed to support a finding that the elevator’s defective condition was not an open and obvious hazard, as the defect was not readily apparent to all who encountered it. The Supreme Court held that the State, therefore, breached its duty of care by failing to remedy the defect or warn of its existence until the defect could be remedied. Thus, the judgment of the trial court was reinstated rendered in conformity with the jury’s verdict.

Take-Away: While a defendant only has a duty to protect against unreasonable risks that are not obvious or apparent, the fact finder, employing a risk-utility balancing test, determines which risks are unreasonable and whether those risks pose an open and obvious hazard. Thus, the fact finder determines whether a defendant has breached a duty to keep its property in a reasonably safe condition by failing to discover, prevent or warn of a defect that presents an unreasonable risk of harm.

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

Hospital within a Hospital: Lessor Cannot Escape Duty of Care to Lessee's Patients

Less than one month before Hurricane Katrina made landfall in Louisiana, Gordon Serou, Jr. was admitted to the Specialty Hospital of New Orleans (“SHONO”), a long term acute care facility located on the seventh floor of the Touro Infirmary (“Touro”). SHONO leased the space from Touro.

Mr. Serou sheltered at SHONO during Hurricane Katrina, but unfortunately, he did not survive. As a result, his wife and children filed a premises liability lawsuit against SHONO, Touro, and Aggreko, LLC (“Aggreko”), Touro’s emergency generator services contractor. Plaintiffs argued that SHONO and Touro failed to evacuate their patients and failed to ensure that the hospitals were equipped with proper life-sustaining equipment, staff, and resources. Plaintiffs further argued that Aggreko breached its obligation to the hospitals’ patients because it failed to provide adequate emergency generator power in accordance with its service agreement with Touro. The plaintiffs settled with SHONO and Aggreko, leaving their premises liability claim against Touro to be disposed of at trial.

The plaintiffs had the burden of proving that Touro owed a duty to Mr. Serou, that it breached that duty, that the breach of its duty was the cause of Mr. Serou’s death, and that plaintiffs are owed damages as a result. While Touro did not contest that it owed a duty of care to Mr. Serou, it argued that it merely held a duty to protect him against known defects in the premises. The court disagreed.

The plaintiffs’ claim against Touro involved the interpretation of its lease agreement between SHONO and Touro. Under the terms of the lease, SHONO operated as a hospital within a hospital, meaning that it hired its own staff and provided all of the clinical and medical care to its patients. The only services to be provided by Touro to the SHONO patients were “auxiliary,” such as transportation and therapy. Nevertheless, the lease agreement specifically required both Touro and SHONO work together to prepare for disasters. Moreover, the agreement also required that Touro comply with the standards prescribed by the Joint Commission of the Accreditation of Hospital Organizations (“JCAHO”). In accordance with JCAHO standards, Touro had to provide adequate ventilation (i.e., conditioned air) to all of its patients, including those housed within SHONO.

The court determined that both the lease agreement and the JCAHO standards required Touro to provide SHONO patients certain emergency functions, including emergency backup power and conditioning. The evidence demonstrated that Touro could have and should have provided SHONO spot coolers and should have broken SHONO’s windows to create ventilation, but it failed to do so. Because the plaintiffs demonstrated that Mr. Serou’s death by hyperthermia was directly linked to the lack of adequate ventilation, Touro was held liable. While the court found SHONO primarily at fault for Mr. Serou’s death, Touro was apportioned 30% of the fault.

Take-Away: By contractually agreeing to jointly prepare for emergencies, and by enjoying accreditation with the Joint Commission of Accreditation of Hospital Organizations (“JCAHO”), Touro committed itself to ensuring safety and care to the patients of SHONO, the hospital within its hospital.

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