No Recovery against Premise Owner/Employer Where Employee Was Not in Course and Scope of Employment at the Time She Ran Over Customer with her Vehicle in Store Parking Lot

Akeisha Dorsey was employed by RaceTrac at its convenience store. On the day of the accident she left work for a doctor’s appointment and returned to the store several hours later. Ms. Powell was at the store to purchase a propane tank. She had parked in the handicapped zone in front of the store and was standing next to her vehicle as Ms. Dorsey drove into the parking lot. Ms. Dorsey’s vehicle was approaching from the opposite side from where Ms. Powell was standing and she did not see Ms. Powell until she turned into the parking space. By that time, Ms. Dorsey was unable to avoid striking Ms. Powell with her vehicle. 

Ms. Powell filed suit against Ms. Dorsey, RaceTrac and various insurers. She claimed, among other things, that RaceTrac was vicariously liable as the store owner for the negligent acts of its employee, Ms. Dorsey. Ms. Powell also asserted that RaceTrac was liable for negligent training and supervision of its employee, and lastly, that there was a defect in the premises. 

The court first considered Ms. Powell’s claim that RaceTrac was vicariously liable for the acts of its employee, Ms. Dorsey. The court noted that a central element of this claim is proof that an employee was acting in the course and scope of her employment at the time of the accident. The court further explained that in a case where an employee has a fixed place of work, the time spent traveling to and from work is almost never considered to be in the course and scope of employment. Here, it was undisputed that Ms. Dorsey left work to see a doctor and was returning to her job when the accident occurred and that her work duties did not encompass driving to and from work. Nor was Ms. Dorsey paid for the time she was off-site. And, Ms. Dorsey’s action of leaving work for the purpose of attending a personal appointment and returning to work following the appointment was not in furtherance of the employer’s business interests. Considering these factors, the court found that there were no facts in dispute which could lead to the imposition of vicarious liability on the part of RaceTrac and, therefore, dismissal in favor of RaceTrac as to Ms. Powell’s vicarious liability claim was proper.

For the same reasons, Ms. Powell’s claim against RaceTrac for negligent training and supervision of its employee was also dismissed, because RaceTrac had no duty to train its employee regarding an act which was outside of the course and scope of her employment. 

Finally, with respect to the plaintiff’s premises liability claim, it was undisputed that there was no evidence or testimony that indicated that there were any defects in the parking area of the RaceTrac Store so those claims likewise were dismissed. 

Take-Away: The mere fact that a person is injured by an employee of a premise’s owner on the premises does not necessarily support a finding of liability on the part of the premise’s owner. In a case where the employee caused the accident, but was not in the course and scope of her employment at the time, the employer premise owner will not be found liable for the employee’s negligent acts. 

Why Did the Plaintiff Cross the Road? LA Supreme Court Says It's Obvious.

On December 2, 2011, Royce Bufkin Jr. was enjoying an afternoon stroll through the French Quarter when he encountered a construction barrier blocking the sidewalk and directing him to cross to the other side of the street. The construction barrier was for work being done on a building, and there was a large dumpster occupying several on-street parking spots immediately adjacent to the sidewalk barrier. As Bufkin prepared to cross the one-way street, he looked in the direction of oncoming traffic before beginning to cross the road. Unfortunately for Bufkin, a bicyclist delivering food for Felipe’s Taqueria Restaurant was traveling the wrong way down Conti Street at that same moment, and Bufkin was struck by the bicyclist and injured. 

Bufkin subsequently filed suit against Felipe’s, its insurer, and Shamrock Construction, the company doing the construction on the building, as well as the building’s owner. As to Shamrock, Bufkin argued the company was liable because it created an unreasonable risk of harm to pedestrians by creating a “blind spot” that prevented pedestrians from seeing oncoming traffic when crossing the street. Bufkin argued that Shamrock’s sign directing pedestrians to cross the street should have also advised them that the dumpster created a blind spot, and specifically instructed pedestrians to cross at the corner. Bufkin also contended that Shamrock should have placed buffers around the dumpster to eliminate the blind spot. Shamrock sought summary dismissal of the lawsuit, arguing that it was not negligent and owed no duty to warn about the dumpster. The trial court denied the motion and the appellate court also denied Shamrock’s subsequent application for supervisory review of the denial. But the Louisiana Supreme Court granted Shamrock’s writ application for review in Bufkin v. Felipe’s Louisiana

The Supreme Court framed the issue as “whether the sidewalk condition, created by Shamrock’s allegedly insufficiently posted warnings and the placement of the large curbside dumpster, produced a vision obstruction that was unreasonably dangerous, and if so, whether Shamrock owed a duty to place additional warnings on its signage and/or to construct a buffer zone that would mitigate against any vision obstruction created.” The Court then went on to note that generally, the burden for tort liability arising from a sidewalk defect lies with the municipality, unless an adjoining landowner negligently caused the defect. Nonetheless, the Court noted that a pedestrian still has a duty to see “that which should be seen and is bound to observe his course to see if his pathway is clear.” Ultimately, the Court evaluated whether Shamrock owed a duty to Bufkin under four factors:

  1.  The utility of the complained-of condition;
  2. The likelihood and magnitude of the harm, including the obviousness and apparentness of the condition;
  3. The cost of preventing the harm; and
  4. The nature of the plaintiff’s activities in terms of social utility or whether the activities were dangerous by nature. 

The Court quickly disposed of the first factor, utility, noting that “[c]onducting repairs and renovations to aging French Quarter buildings is not only desirable, but necessary.” The Court then moved on the second prong, noting that a defendant generally does not have a duty to protect against obvious and apparent dangers. In evaluating this prong, the Court considered evidence submitted by Shamrock, including photographs of the accident site about a week after the accident, Bufkin’s deposition, and an affidavit from Dale Johnson, Shamrock’s superintendent for the building project.     

Mr. Johnson’s affidavit went into detail about the size of the 30-cubic-yard dumpster, the signage warning that the sidewalk was closed and warning pedestrians to cross the street, and the position of the dumpster. Johnson also noted that there was no pedestrian crossing delineated at the construction location. Meanwhile, Bufkin’s deposition revealed that he had lived in the French Quarter for thirty years. Bufkin also stated he followed pedestrian traffic crossing by the dumpster because “he thought crossing by the dumpster was a shortcut.” Bufkin did not dispute that he failed to look to his right (the opposite direction of oncoming traffic) before crossing the street. Bufkin also admitted that he had known of the dumpster’s presence for more than four months by the time of the accident, and as a French Quarter resident, he was aware that people would at times walk, jog, or bicycle the wrong way down one-way streets. 

The Court began its analysis of the facts by acknowledging that Shamrock would have been liable for any unreasonably dangerous condition it created on the sidewalk, having assumed custody of the sidewalk by shutting it down during the construction. However, considering all of the above evidence and testimony, the Court found that any vision obstruction caused by a dumpster of the size at issue was obvious and apparent, and reasonably safe for persons exercising ordinary care and prudence. Accordingly, the Court concluded that Shamrock had no duty to warn of the obstruction presented to pedestrian by its “pick-up-truck-sized dumpster, a large inanimate object visible to all.” This lack of duty also negated the need for the Court to evaluate the remaining two factors of the test. Because Bufkin presented no evidence to refute this finding, the Supreme Court reversed the lower courts’ decision and entered summary judgment in favor of Shamrock, dismissing the case against it. 

Take-Away: Even where a defendant has control of a premises (such as Shamrock and the sidewalk in this case), it still has no duty to warn plaintiffs of obvious and apparent dangers.  

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

Why Did the Plaintiff Cross the Road? LA Supreme Court Says It's Obvious.

On December 2, 2011, Royce Bufkin Jr. was enjoying an afternoon stroll through the French Quarter when he encountered a construction barrier blocking the sidewalk and directing him to cross to the other side of the street. The construction barrier was for work being done on a building, and there was a large dumpster occupying several on-street parking spots immediately adjacent to the sidewalk barrier. As Bufkin prepared to cross the one-way street, he looked in the direction of oncoming traffic before beginning to cross the road. Unfortunately for Bufkin, a bicyclist delivering food for Felipe’s Taqueria Restaurant was traveling the wrong way down Conti Street at that same moment, and Bufkin was struck by the bicyclist and injured. 

Bufkin subsequently filed suit against Felipe’s, its insurer, and Shamrock Construction, the company doing the construction on the building, as well as the building’s owner. As to Shamrock, Bufkin argued the company was liable because it created an unreasonable risk of harm to pedestrians by creating a “blind spot” that prevented pedestrians from seeing oncoming traffic when crossing the street. Bufkin argued that Shamrock’s sign directing pedestrians to cross the street should have also advised them that the dumpster created a blind spot, and specifically instructed pedestrians to cross at the corner. Bufkin also contended that Shamrock should have placed buffers around the dumpster to eliminate the blind spot. Shamrock sought summary dismissal of the lawsuit, arguing that it was not negligent and owed no duty to warn about the dumpster. The trial court denied the motion and the appellate court also denied Shamrock’s subsequent application for supervisory review of the denial. But the Louisiana Supreme Court granted Shamrock’s writ application for review in Bufkin v. Felipe’s Louisiana

The Supreme Court framed the issue as “whether the sidewalk condition, created by Shamrock’s allegedly insufficiently posted warnings and the placement of the large curbside dumpster, produced a vision obstruction that was unreasonably dangerous, and if so, whether Shamrock owed a duty to place additional warnings on its signage and/or to construct a buffer zone that would mitigate against any vision obstruction created.” The Court then went on to note that generally, the burden for tort liability arising from a sidewalk defect lies with the municipality, unless an adjoining landowner negligently caused the defect. Nonetheless, the Court noted that a pedestrian still has a duty to see “that which should be seen and is bound to observe his course to see if his pathway is clear.” Ultimately, the Court evaluated whether Shamrock owed a duty to Bufkin under four factors:

  1.  The utility of the complained-of condition;
  2. The likelihood and magnitude of the harm, including the obviousness and apparentness of the condition;
  3. The cost of preventing the harm; and
  4. The nature of the plaintiff’s activities in terms of social utility or whether the activities were dangerous by nature. 

The Court quickly disposed of the first factor, utility, noting that “[c]onducting repairs and renovations to aging French Quarter buildings is not only desirable, but necessary.” The Court then moved on the second prong, noting that a defendant generally does not have a duty to protect against obvious and apparent dangers. In evaluating this prong, the Court considered evidence submitted by Shamrock, including photographs of the accident site about a week after the accident, Bufkin’s deposition, and an affidavit from Dale Johnson, Shamrock’s superintendent for the building project.     

Mr. Johnson’s affidavit went into detail about the size of the 30-cubic-yard dumpster, the signage warning that the sidewalk was closed and warning pedestrians to cross the street, and the position of the dumpster. Johnson also noted that there was no pedestrian crossing delineated at the construction location. Meanwhile, Bufkin’s deposition revealed that he had lived in the French Quarter for thirty years. Bufkin also stated he followed pedestrian traffic crossing by the dumpster because “he thought crossing by the dumpster was a shortcut.” Bufkin did not dispute that he failed to look to his right (the opposite direction of oncoming traffic) before crossing the street. Bufkin also admitted that he had known of the dumpster’s presence for more than four months by the time of the accident, and as a French Quarter resident, he was aware that people would at times walk, jog, or bicycle the wrong way down one-way streets. 

The Court began its analysis of the facts by acknowledging that Shamrock would have been liable for any unreasonably dangerous condition it created on the sidewalk, having assumed custody of the sidewalk by shutting it down during the construction. However, considering all of the above evidence and testimony, the Court found that any vision obstruction caused by a dumpster of the size at issue was obvious and apparent, and reasonably safe for persons exercising ordinary care and prudence. Accordingly, the Court concluded that Shamrock had no duty to warn of the obstruction presented to pedestrian by its “pick-up-truck-sized dumpster, a large inanimate object visible to all.” This lack of duty also negated the need for the Court to evaluate the remaining two factors of the test. Because Bufkin presented no evidence to refute this finding, the Supreme Court reversed the lower courts’ decision and entered summary judgment in favor of Shamrock, dismissing the case against it. 

Take-Away: Even where a defendant has control of a premises (such as Shamrock and the sidewalk in this case), it still has no duty to warn plaintiffs of obvious and apparent dangers.  

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

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.

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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.