Louisiana Premises Liability Blog : Louisiana Premises Liability Lawyer & Attorney : Irwin Fritchie Urquhart & Moore Law Firm : LA Slip & Fall, Property Security : New Orleans, Baton Rouge

Jason Berry took part in a paintball game hosted by his adult friend Joseph Dvorak. The event took place on property owned by Joseph’s parents. Prior to the commencement of the game, Joseph did not provide any instructions or warnings to the participants about how to properly defog a paintball mask. Shortly after the game began, Mr. Berry’s mask began to fog up and in an effort to defog the mask he removed it from his face. While his mask was raised, Mr. Berry was hit in the face by a paintball, causing injury to his right eye. 

Mr. Berry subsequently filed suit against the Dvoraks and their son Joseph in the case Berry v. Lynch alleging that the Dvoraks and Joseph negligently failed to ensure that the proper safety procedures, inspections, and equipment were in place to guarantee that the paintball game was conducted in a reasonably safe manner. In response, the Dvoraks and Joseph filed motions to have the case dismissed. The Dvoraks contended that they were not liable because Mr. Berry failed to show that their conduct met the heightened standard of “recklessness,” as opposed to “simple negligence.” Joseph argued that he had no duty to warn Mr. Berry about how to properly use his safety mask because Mr. Berry, by his admission, knew that the mask was necessary for his protection. In his deposition, Mr. Berry admitted that he knew he needed eye protection to participate in a paintball game. 

The trial court granted the Dvorak’s motion for summary judgment because Mr. Berry was unable to factually support his allegation that the Dvoraks had acted recklessly. The court, however, denied Joseph’s motion on the grounds that he had a greater duty to Mr. Berry because the game was his idea. At trial, the jury entered a verdict in favor of Joseph.

On appeal, Mr. Berry argued that the trial court erred in requiring him to prove that the Dvoraks’ conduct was reckless, rather than negligent, because the relevant case law requiring reckless conduct only applied to situations where defendants were co-participants with the plaintiff in an informal recreational sport and there was no dispute that the Dvoraks did not participate in the game. The appellate court agreed that the standard of negligence, not the heightened standard of reckless conduct, applied. 

The court then addressed the issue of whether under the negligence standard the defendants owed a duty to Mr. Berry to provide him with instructions on how to properly defog his paintball mask. Under the general rule for premises liability, landowners are only liable to social guests for foreseeable injuries if: “the dangerous condition is unknown to the guest and the guest could not have discovered the danger himself; the host fails to exercise reasonable care to make the premises safe, or to warn the social guest of the danger; and the guest has no reason to know of the risk involved.” Parks v. Rogers. The court noted that Mr. Berry knew the risks of participating in paintball, was aware of the purposes of the mask, and knew that he would risk harm by taking it off. In light of these facts, the court found that the Dvoraks did not owe Mr. Berry a duty to instruct him on how to properly defog his mask and provide an explanation of the dangers of improper defogging. The court then affirmed the lower court’s grant of summary judgment in favor of the Dvoraks.

Take-Away: Under New Jersey law, a landowner’s status as a participant in a recreational activity can determine the standard of care owed to his social guests who take part in that activity. In addition, a landowner does not owe a duty to his guests to warn them of risks of which they are aware and which are inherent in the involved activity.  The comparable Louisiana State laws that protect landowners from recreational use of their property  are LA R.S 9:2791 (pdf) and LA R.S. 2795 (pdf). 

This article was co-authored by Jonathan Phelps, a 2011 summer associate at Irwin Fritchie Urquhart & Moore LLC.

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After shopping for a gift for her great-granddaughter’s wedding, 93-year-old Emelda Mooty tripped and fell in the parking lot of a shopping center in Harvey, Louisiana. Mrs. Mooty subsequently filed a lawsuit against the shopping center—Mooty, et al. v. Centre at Westbank LLC,. In the suit, Mrs. Mooty alleged that she tripped over an unpainted tire stop that was located in the handicapped parking portion of the parking lot, asserting that the tire stop was a “tripping hazard.”

After the plaintiffs’ depositions had been taken, the defendants filed a motion for summary judgment, claiming that there was no genuine issue of material fact, and asserting that, as a matter of law, defendants were entitled to judgment in their favor. Specifically, the defendants argued that, although Mrs. Mooty speculated that she tripped on the tire stop, she actually had no idea what caused her fall. The plaintiffs opposed the motion, arguing that defendants breached their duty to Mrs. Mooty and that issues of material fact remained unresolved. Furthermore, the plaintiffs supported their opposition with a report from an engineering and safety expert who opined that the tire stop did not conform to the requirements of the Americans with Disabilities Act (ADA). After a hearing on the motion, the trial court granted summary judgment in favor of the defendants.

On appeal, the plaintiffs argued not only that there was sufficient evidence to conclude that the defendants were liable for Mrs. Mooty’s injuries, but also that the trial court committed error by disregarding the ADA. The appellate court noted that, under Louisiana law, the potential liability of a defendant under these circumstances must be determined by a “duty-risk analysis” and that the essential first element of this analysis is causation. The court further noted that the deposition testimony of Mrs. Mooty failed to show that the tire stop was related to her fall. It pointed to specific statements in Mrs. Mooty’s deposition, such as, “I tripped on something, but I don’t know what it is.” The court concluded that because plaintiffs failed to prove the element of causation, the issue of whether the tire stop complied with the ADA requirements was irrelevant. The court ultimately affirmed the trial court’s grant of summary judgment and dismissed the plaintiffs’ case.

Take-Away: Even if a potential plaintiff falls and is injured on a landowner’s premises, the plaintiff must be able to establish what exactly caused the fall in order to succeed on a claim against the landowner. If the plaintiff cannot prove that element of the claim, the landowner will be entitled to judgment as a matter of law. 

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

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Lisa Taylor filed suit against Wal-Mart seeking to recover for injuries she allegedly sustained after she slipped on a wet substance on the floor near the checkout area of the Wal-Mart in New Orleans. Ms. Taylor’s lawsuit is governed by the Louisiana Slip and Fall Statute (pdf). Under this statute, Ms. Taylor is required to prove the following: (1) that a condition presented an unreasonable risk of harm to her and that risk of harm was reasonably foreseeable; (2) that Wal-Mart either created or had actual or constructive notice of the condition that caused the damage, prior to the accident; and (3) that Wal-Mart failed to exercise reasonable care. The Louisiana Slip and Fall Statute clearly imposes the burden of proof on Ms. Taylor. Therefore, she is required to show that either Wal-Mart actually knew of the existence of the liquid on which she allegedly slipped or that the liquid existed for some time period prior to her fall such that had Wal-Mart been exercising reasonable care, it would have discovered the liquid.

Wal-Mart filed a motion for summary judgment relying on the fact that, at her deposition, Ms. Taylor testified that she did not see a clear liquid on the floor and that she did not know how long the substance was on the floor before she slipped on it. Wal-Mart further relied on the fact that Ms. Taylor otherwise had no evidence that a liquid on the floor caused her to slip; nor did she have evidence demonstrating the length of time that the alleged liquid had been on the floor prior to her fall.

Ms. Taylor filed her own motion for summary judgment relying on a video recording of the location in which she fell covering the hour before she allegedly slipped and fell. Ms. Taylor argued that the video conclusively showed that for the hour prior to her fall, Wal-Mart made no effort to clean the liquid substance on which she slipped. She further argued that because the video doesn’t reflect the occurrence of a spill, the spill must have been in place before the commencement of the video recording, which would be over an hour before her fall. By making this argument, Ms. Taylor attempted to shift the burden of proof to Wal-Mart to prove that a liquid was not located on the ground. This burden shifting is a clear contravention of the Louisiana Slip and Fall Statute. 

The court denied Ms. Taylor’s motion for summary judgment and granted Wal-Mart’s motion for summary judgment relying on the following facts: (1) the recording did not show visual evidence of a wet substance on the floor, (2) the recording only showed the passage of time, (3) the recording did not show other people slipping or taking care to avoid a liquid, and (4) the recording did not reflect that any person attempted to clean or secure the area. Accordingly, the court determined that Ms. Taylor’s argument would require the court to draw a conclusion that is not reasonably supported by the evidence, and, therefore, failed to satisfy Ms. Taylor’s burden of proving that the liquid existed. Because Ms. Taylor failed to meet her burden of proof, Wal-Mart was entitled to a judgment as a matter of law.

Take-Away: In a slip and fall action, the plaintiff always bears the burden of proving that an unreasonable risk of harm existed. The plaintiff cannot attempt to shift the burden of proof by forcing the defendant to prove that an unreasonable risk of harm was not present.

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

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While leaving a co-worker’s funeral with a friend in Moreauville, Louisiana, Arlene Chambers tripped on a section of sidewalk and fell. As a result of the accident, Ms. Chambers suffered a fracture of the radius of her right arm, which required surgery. Although the surgery and subsequent physical therapy were successful, Ms. Chambers later experienced problems with her both her right and left shoulders, which she attributed to the fall due to prolonged immobility of her wrist. Ms. Chambers ultimately filed a lawsuit against the Village of Moreauville —Chambers v. Village of Moreauville.

At the trial court level, the plaintiff called a number of experts to testify, including experts in the fields of civil engineering, economics, and vocational rehabilitation. After the bench trial, the court held that the Village of Moreauville was 100% at fault and awarded damages to Ms. Chambers for past and future pain and suffering, hedonic damages, future wage loss, past medical expenses, future medical expenses, and past wage loss. The Village appealed.

On appeal, the third circuit first addressed the issue of comparative fault. It noted that pedestrians are obligated to observe their path and remain mindful that every sidewalk contains irregularities. Furthermore, it noted that a condition that is “obvious” and “easily avoidable” cannot be considered to present an unreasonable risk of harm, which is a key element in any premises liability case. The court held that although there was a reasonable basis for the trial court’s conclusion that the sidewalk presented an unreasonable risk of harm, the record did not reasonably support a finding that Ms. Chambers was entirely free from fault. In particular, the court noted Ms. Chambers’ testimony that her attention was diverted at the time of the fall due to a conversation with a friend. Thus, the appellate court allocated 10% of the fault to Ms. Chambers and 90% of the fault to the Village.

Next, the court addressed whether the trial court was manifestly erroneous in its award of damages for future wage loss and future medical expenses. With regard to the award of future lost wages, the third circuit held that there was no evidence in the record that Ms. Chambers more probably than not would lose her job due to her injuries. Thus, it held that the award of future lost wages was too speculative and was therefore manifestly erroneous. On the issue of future medical expenses, the court held that, based on the history of Ms. Chambers’ treatment and the costs associated with that treatment, the trial court’s award of $10,000 was reasonable and therefore not manifestly erroneous.

Finally, the appellate court addressed whether the trial court had abused its discretion in awarding Ms. Chambers general and hedonic damages, which consisted of $200,000 for past and future pain and suffering and $25,000 for loss of enjoyment of life. The third circuit analyzed these awards separately. With regard to the award of general damages for past and future pain and suffering, it held that, based on Ms. Chambers’ initial and subsequent injuries resulting from the fall, the award was reasonable. The third circuit also held that Ms. Chambers’ injuries had negatively impacted the activities that she enjoyed outside of her employment and, as such, the trial court did not abuse its discretion in its award of hedonic damages.

Take-Away: Even if a condition presents an unreasonable risk of harm, courts are willing to assess a portion of fault to a plaintiff for not exercising “ordinary care.” So, property owners should always be mindful of the potential defense of comparative fault on the part of a plaintiff.

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

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In Fluence v. Marshall Bros. Lincoln-Mercury Inc., Larry Fluence, a worker who was part of a paving crew that was pouring asphalt pavement at the Marshall Brothers car dealership’s lot, fell into an open manhole and severely injured his back. Mr. Fluence sued the property owner, Marshall Brothers, and the subcontractor that installed the underground drainage system and left the manhole cover off, Labiche Plumbing Inc. (Labiche). 

Both Marshall Brothers and Labiche moved for summary judgment on the grounds that (1) they did not breach a duty to Mr. Fluence and (2) the open manhole did not present an unreasonable risk of harm. It was undisputed that Mr. Fluence was part of a crew that was hired to pave around the new drainage system, including the manhole, and that he had inspected the property on the morning of the accident and was aware of the open manhole. Moreover, the manhole was clearly visible from 20 feet away. Given these facts, Marshall Brothers and Labiche argued that the manhole was open and obvious and did not present an unreasonably dangerous condition to Mr. Fluence. In response, Mr. Fluence contended that he forgot about the hole later in the day when he was walking backwards in the parking lot and “smoothing off” the asphalt. And, although he should bear some fault for his carelessness, fault should also be assigned to Marshall and Labiche. The trial court disagreed and granted summary judgment in favor of Marshal Brothers and Labiche.

On appeal, Mr. Fluence argued that Marshall Brothers breached a duty to protect him or to warn him of a known dangerous condition while he was on the property. He further argued that Labiche had a duty to warn him of the condition, replace the manhole cover, or place a barrier to prevent people from getting near the hole. The appellate court noted that although a landowner owes a duty to people entering its premises to discover unreasonably dangerous conditions and to either repair them or warn of their existence, there is no duty to warn of an open and obvious condition. Quoting Louisiana case law, the court stated that whether a condition is unreasonably dangerous is determined by considering: “(1) the utility of the complained-of condition; (2) the likelihood and magnitude of the harm (which includes the obviousness and apparentness of the harm); and (3) the nature of the plaintiff’s activities in terms of its social utility or whether it is dangerous in nature.” Finding that Mr. Fluence admitted knowing of the open manhole prior to the accident and that his job entailed patching the holes up to and around the open manhole, the court held that Marshall Brothers and Labiche owed no duty to repair the condition or warn Mr. Fluence  about the open and obvious condition. Accordingly, the appellate court affirmed the trial court’s ruling.

Take-Away: Property owners who hire workmen to perform work and repairs on their property may avoid liability for injuries suffered by the workmen if the injury results from an open and obvious condition, especially when the workmen acknowledge that they were aware of the condition before the accident occurred.

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The case Falcon v. Louisiana Dept. of Transportation arises out of a motor vehicle accident involving a mother and her three children. On the day of the accident the mother was driving her vehicle with her three minor children as passengers. When she approached a T-shaped intersection, she allegedly ran a stop sign and then after attempting to turn left her vehicle was broadsided by a truck traveling on the intersecting highway. Although her children only sustained minor injuries, she suffered a severe closed head injury, which ultimately required that she be legally interdicted under the curatorship of her father “Plaintiff”. 

Plaintiff filed a personal injury action on behalf of his daughter and her three children alleging that defendants’ placement of a large billboard at an intersection of two roads constituted an unreasonably dangerous condition to motorists. Named as defendants were the State of Louisiana, through the Department of Transportation and Development (“DOTD”), the owner of the land on which sign was erected and its insurer, as well as the owners of the sign and their insurers. The billboard in question measured sixteen (16) feet in width by approximately eight (8) feet in height and was alleged to have extended two feet into the State's right-of-way along La. Hwy. 1 in violation of La. R.S. 48:461.2. This statute provides, in part:

No outdoor advertising shall be erected or maintained within six hundred sixty feet of the nearest edge of the right of way and visible from the main traveled way of the interstate or primary highways in this state....

The defendants filed a motion for summary judgment asserting that the entire lawsuit should be dismissed because the placement of the billboard did not present an unreasonably dangerous condition to motorists and because the mother failed to act as a reasonable motorist. The trial court granted summary judgment as to the landowner, its insurer and the DOTD, but denied the motion as to owners of the sign and their insurers. With respect to those entities, the court found that there existed a genuine issue of material fact as to whether the billboard contributed to the accident. Plaintiff appealed the trial court’s dismissal of the landowner, its insurer and the DOTD on the basis that it was not appropriate to rule as a matter of law that an uncontested sight obstruction did not constitute an unreasonably dangerous condition. The only issues before the appellate court were whether there were genuine issues of material fact (1) as to whether the billboard presented an unreasonably dangerous condition and (2) as to whether the mother failed to act as a reasonably prudent motorist under the circumstances.

The appellate court first considered the issue of whether the billboard presented an unreasonably dangerous condition. The court noted that it was undisputed that at a certain point along the highway, the placement of the billboard obstructed the view of motorists. Thus, the only issue was whether the obstruction was sufficient to constitute an unreasonably dangerous condition. Finding that this inquiry was inherently a factual determination, the appellate court reversed the finding of the trial court and held that there were genuine issues of fact as to whether the billboard obscured the view of the mother thereby creating an unreasonable risk of harm.

The court next addressed the issue of whether the mother failed to act as a reasonably prudent motorist under the circumstances. Defendants argued that to defeat summary judgment Plaintiff had to overcome two separate presumptions: (1) that a left-turning motorist involved in a collision that occurs across the center line is at fault in causing the accident; and (2) that a motorist who runs a stop sign resulting in a collision is similarly at fault in causing the accident. Plaintiffs countered that there were factual disputes with respect to each contention put forth by defendants. First, the other driver in the accident testified that he did not know which direction the mother intended to travel and the investigating officer refused to state that she was definitively attempting to execute a left-hand turn. Second, one of the mother's daughters, who was a passenger in vehicle, testified that just prior to the accident her mother stopped at the stop sign. Lastly, Plaintiffs contended that it was the placement of the billboard that caused the accident – not the mother’s alleged failure to act in a reasonably prudent manner. The appellate court found that these issues of fact were sufficient to defeat defendants’ summary judgment motion and reversed the ruling of the trial court.

Take Away: Courts are reluctant to uphold the dismissal of a case via summary judgment when there are arguable issues of material fact as to the events and circumstances surrounding an accident, especially where a plaintiff has sustained catastrophic injuries.

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

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Take-Away: Under the LPLA, the reasonably anticipated use of a product is analyzed from the manufacturer’s perspective at the time of its manufacture rather than every conceivable foreseeable use of a product in hindsight. 

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The case Billiot v. Big Wheels Travel Center demonstrates how a plaintiff needs to offer some evidence of a vice or defect in a property in order to survive a motion for summary judgment. Ms. Billiot alleged that she injured her right arm when she slipped and fell on an access ramp while walking into the Big Wheels Travel Center. In response to Ms. Billiot’s claims, Big Wheels filed a motion for summary judgment. In support of the summary judgment motion, Big Wheels submitted photographs depicting the ramp and affidavits of store employees confirming that there was nothing defective about the ramp at the time of the accident. Other than establishing that rain had fallen on the area where she slipped and fell and that the area was wet, Ms. Billiot offered no evidence of any vice or defect in the property. Given this lack of evidence, the trial court granted Big Wheel’s motion for summary judgment and in doing so noted that rain on a walkway in and of itself does not present an unreasonable harm.

Take-Away:  Rain on an access ramp or walkway in and of itself does not constitute a vice or defect. In order to avoid summary dismissal of their case, plaintiffs must come forth with some evidence that there is a problem, vice or defect in the property.

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