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

In November 1995, Winfret Bell was walking from one room to another in the apartment she rented from the Housing Authority of New Orleans (“HANO”) when her shoe got caught in a broken threshold between the rooms. The threshold was not flush with the floor and Ms. Bell fell forward, sustained severe facial injuries and died on the same day. Ms. Bell was alone at the time of her fall and was not discovered until later that day by her granddaughter. Prior to Ms. Bell’s fall, she and her daughters had filed complaints to HANO about the broken threshold, which apparently were not addressed by the time of Ms. Bell’s fall. 

Ms. Bell’s seven daughters filed a wrongful death and survival action against HANO, claiming negligence and strict liability. Following trial, the trial court found in favor of Ms. Bell’s daughters and awarded the sum of $50,000 to each of Ms. Bell’s daughters.   

HANO appealed the trial court’s decision to the Louisiana Fourth Circuit Court of Appeal, arguing that Ms. Bell’s daughters failed to prove that the defective threshold was the cause of Ms. Bell’s death. In order to prevail in their claims against HANO, Ms. Bell’s daughters had to show that: 1) the threshold was in the care, custody and control of HANO; 2) that the threshold presented an unreasonable risk of harm; 3) that HANO knew or should have known about the broken threshold; and 4) that the threshold was the cause-in-fact of Ms. Bell’s death. 

Reviewing the evidence, the Fourth Circuit agreed that the evidence presented at trial by Ms. Bell’s daughters was sufficient to prove that HANO had the care, custody and control of the threshold, and that the threshold presented an unreasonable risk of harm in that it was not flush with the floor, and that HANO knew or should have known about the threshold through the numerous complaints filed by Ms. Bell and her daughters. 

However, the Fourth Circuit concluded that the trial court erred in finding that the threshold was a cause of Ms. Bell’s death. The only evidence introduced at trial on the issue of causation was Ms. Bell’s death certificate. On the certificate, the coroner’s office listed Ms. Bell’s cause of death as “hypertensive cardiovascular disease” and classified the manner of death as “natural”. The death certificate contained no reference to a fall or any other injuries or complications that caused or contributed to the death. No evidence was introduced at trial that showed or claimed that the fall caused or contributed to Ms. Bell’s death. Because Ms. Bell’s daughters did not offer any evidence to controvert the coroner’s conclusion that Ms. Bell’s death was caused by hypertensive cardiovascular disease, the court reversed the decision of the trial court and found in favor of HANO. 

Take-Away: The plaintiff bears the burden of proof in a premises liability case and, although able to make a prima facie showing to get into court, causation may be defeated by death certificates and medical records establishing another medical cause for injury or death.

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

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Constantino Herrera was hired by Norma Montero to cut a tree branch on her property that was tangled in an overhead cable. When Mr. Herrera cut the branch, it fell in an unexpected manner and caused both Mr. Herrera and his ladder to fall to the ground. As a result of the fall, Mr. Herrera sustained injuries and sued Ms. Montero and her homeowner’s insurer the matter Herrera v. United Fire & Casualty Company. 

In his lawsuit, Mr. Herrera alleged that Ms. Montero failed to properly maintain the tree and failed to warn him of the dangerous condition; namely, the entanglement of the tree’s branches with the cable. Ms. Montero’s insurer filed a motion for summary judgment arguing that she could have no liability to Mr. Herrera given the fact that he was hired to rectify the same open and obvious condition (i.e. the tangled branches with the cable) that he alleged constituted the breach of the her duty to him. The trial court granted the motion for summary judgment and the Louisiana Fifth Circuit Court of Appeal affirmed. 

In affirming the grant of summary judgment, the appellate court recognized that Mr. Herrera was hired to remove a branch that was visibly tangled in an overhead cable; he determined the means and methods by which he would undertake the job; and, he used his own equipment and judgment in performing the work. Ms. Montero played no part in controlling or directing his efforts. Therefore, Ms. Montero owed no duty to the tree cutter and his claims arising from the tree trimming accident were properly dismissed.  

Take-Away: A person hired to correct or eliminate an open and obvious condition cannot recover from the property owner when his injury is the result of the same open and obvious condition that he was hired to fix, rather than any act or omission of the property owner.

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Diana Murphy was jaywalking across Decatur Street in New Orleans when she tripped over a mound of pushed up asphalt and fell, injuring her right knee and leg (a tibia plateau fracture), which required two surgeries and physical therapy. Mrs. Murphy and her husband filed suit against the City of New Orleans alleging strict liability and negligence in the matter Murphy v. City of New Orleans. The district court found the City 100% at fault and awarded damages in the amount of $999,173.99 broken down as follows: (1) past medical expenses, $314,302.66; (2) future medical expenses, $15,000.00, (3) past lost wages, $169,871.33, and (4) general damages, $500,000.00. The award would have been higher, but Louisiana law imposes a $500,000.00 statutory cap (pdf)  on general damages against the State and its political subdivisions.

The City appealed, in part, on the ground that plaintiffs failed to carry their burden of proof on each element required to establish negligence and strict liability against a public entity.  The Court of Appeal noted that in order to prevail on a negligence or strict liability claim against a public entity a plaintiff must prove that: (1) the City had custody or ownership of the defective thing; (2) the defect created the unreasonable risk of harm; (3) the City had actual or constructive notice of the defect and failed to take corrective action within a reasonable time; and (4) causation. LSA-R.S. 9:2800. A failure to prove any element will bar recovery. The City argued that the elevated pavement did not pose an unreasonable risk of harm to a pedestrian and the City did not have knowledge of the condition. More specifically, the City argued that the defect in the pavement was obvious and that Mrs. Murphy was not paying attention.

The Appellate Court rejected the City’s arguments that the pushed up asphalt did not create an unreasonable risk of harm because it was obviously visible to a pedestrian exercising reasonable care. It based its decision on the facts that: the asphalt rose several inches at its peak and was located away from the curb in the traveled portion of the street; Decatur is a major street in the French Quarter, which is a main attraction in Orleans Parish for tourists who tend to be pedestrians; and, Mrs. Murphy was a tourist who had no familiarity with the area. The Appellate Court was, apparently, unconcerned with the fact that Ms. Murphy was jaywalking at the time of the accident. 

With respect to the City’s knowledge of the defect, the Appellate Court found that the City failed to follow its own written policy that mandated annual visual inspections of all major streets for the six years prior to the accident. Thus, the Court held that the City had constructive knowledge of the defect.  Consequently, the Court affirmed the trial court’s finding that the defect created an unreasonable risk of harm.

Take-Away: A property owner that fails to follow its own property inspection protocol will be charged with knowledge of a defective condition that should have been discovered during inspection.

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In McManus v. State of Louisiana Dept. of Wildlife and Fisheries, Mrs. McManus, individually and on behalf of her minor children, sued two State of Louisiana agencies for the drowning death of her husband. Mr. McManus drowned when he and a friend were attempting to catch baitfish with cast nets from a boat on a public lake near the base of a damn. The men were wearing life vests for the boat ride to the damn, but removed them after arriving at the damn.   Instead of floating down stream away from the damn, as the men had suspected, the boat was drawn towards the damn and was swamped by water falling over the damn. Mr. McManus drowned; whereas his friend swam to shore. After trial, a jury rendered a verdict in favor of Mrs. McManus and her children, but apportioned 25% of the fault for his drowning to Mr. McManus.

The State appealed on numerous grounds, but the primary arguments were that the state was entitled to “recreational immunity” and that it did not have actual or constructive knowledge of the dangerous condition that required it to correct the condition or warn of the danger. The state relied, in part, on the Louisiana Recreational Use Statutes, La. R.S. § 9:2791 (pdf) and La. R.S. §9:2795 (pdf) and argued that the jury improperly concluded that the State knew about the dangerous condition and failed to timely act to correct the condition or warn of its existence.

La. R.S. § 9:2791 provides, in relevant part, that “An owner . . . owes no duty of care to keep such premises safe for entry or use by others for . . . fishing . . . or boating or to give warning of any hazardous conditions, . . . . whether the hazardous condition . . . is one normally encountered in the true outdoors or one created by the placement of structures or conduct of commercial activities on the premises.” La. R.S. §2791, on the other hand, makes clear that immunity will not apply when a landowner willfully or maliciously fails to warn of a dangerous condition of which it knows and that would not otherwise be open and obvious to the recreational user. The appellate court noted that the Louisiana Recreational Use Statutes do not provide absolute immunity for injuries sustained on recreational lands and facilities. Rather, the immunity is qualified and, whether immunity will attach, is dependent on a case-by-case factual analysis. 

Reviewing the facts in the record, the appellate court determined that the jury did not err in its conclusion that the State knew that there was a probability that a boat coming within a certain distance of the base of a damn could be drawn toward the damn and failed to warn of the danger. The court noted that the State included warnings regarding the dangers presented by damns on one of its websites and directed that, when the danger is known, the State is required to post warning signs or correct the dangerous condition. In addition, an employee of the Department of Wildlife and Fisheries had testified that he had a virtually identical experience at the same damn, but that he was able to don his life jacket to avoid drowning. Moreover, the plaintiffs’ expert provided unrefuted testimony that the danger of being pulled towards a damn was not obvious to the public and would not be obvious from looking at this particular damn. He testified, however, that such knowledge was common within the water resource management community and should have been within the knowledge of the people responsible for maintenance and operation of the damn. Finding actual or constructive knowledge of the danger and adequate time to caution users, the appeals court affirmed the State’s liability.

Take-Away: Whether a dangerous condition on recreational property is open and obvious may not always be clear, but a property owner cannot turn a blind eye to serious incidents on its property and hope to find shelter in the Recreational Immunity Statutes.

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The case of Cronin v Department of Public Safety reaffirms that whether a defect on a premises poses unreasonable risk of harm turns on the facts of the case.  Mr. Cronin was severely injured at a building owned by the St. Bernard Port, Harbor, and Terminal District (“Port”). The plaintiff attempted to exit a locked double door when his hand slipped off the metal bar that opened the door and his hand went through the door’s glass panel. The door did not have a sign advising that the door was locked. 

After a bench trial, the plaintiff was found to be 100% liable for his injuries. The trial court relied on testimony indicating that the plaintiff was agitated when he was leaving the building and that he forcefully attempted to push the door open. The plaintiff appealed to the Louisiana Fourth Circuit Court of Appeals. 

On appeal, the appellate court applied Louisiana Revised Statute 9:2800 (pdf) and Louisiana Civil Code Article 2317 (pdf), which limits public entity liability to damages caused by conditions of buildings within the entity’s care and custody. Those conditions have to be known to the entity and not timely corrected. According to the record on appeal, a security guard for the Port testified that he reported the door had a problem of “sticking” and that Port maintenance unsuccessfully attempted to fix the door. The Port locked the door after efforts to get it fixed failed. The Port argued that: locking the door did not create an unreasonably dangerous condition, by itself; a door that contains plate glass is not, in itself, unreasonably dangerous; and, a plate glass is not, in itself, unreasonably dangerous. The appellate court agreed. 

The appellate court, however, noted that the door was in an unquestionably high volume passageway for people entering and leaving the building. Furthermore, it was uncontroverted that the door was defective in that it was difficult to open, because it would stick. The court acknowledged that the plaintiff may have been agitated when he left, but that the plaintiff’s fault did not excuse the duty owed by the Port. The Port had a duty to keep visitors safe from a dangerous condition on the premises by either warning the public that the door was defective or repairing the door. The Court stated that “If the door had been locked, there was no sign to warn a person exiting the building. If the door had been left unlocked…, there is ample evidence that the door was heavy and would stick and not open entirely. Either scenario created an unreasonable risk of harm, especially in light of the fact that the door contained plate glass.”  

The appellate court reversed the trial court’s decision and, rather than remand, adjusted the allocation of fault and found the plaintiff ten percent at fault for his injuries. The plaintiff was awarded $523,951.35 plus judicial demand. 

Take-Away: An owner must warn of an unreasonably dangerous condition. Whether a condition creates an unreasonable risk, however, is not a simple task and includes a weighing of all of the facts.

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

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Jerome C. Ardoin, Jr. was terminated from his employment with CLECO Power, LLC (“Cleco”) on a Friday morning. Mr. Ardoin was informed of his termination at Cleco’s Work Center in Opelousas but his office with Cleco was located in Eunice.  Cleco gave Mr. Ardoin permission to return to his Eunice office the following Monday morning to collect his personal effects and return any Cleco property in his possession. While clearing out his office on Monday morning, Mr. Ardoin slipped and fell and sustained serious physical injuries.

Mr. Ardoin filed a disputed claim for compensation against Cleco, under Louisiana’s Workers’ Compensation (pdf) scheme, seeking wage benefits, medical treatment, and penalties and attorney fees. Cleco denied liability. Both parties filed motions for partial summary judgment addressing Mr. Ardoin’s employment status at the time of the accident. The Workers’ Compensation Judge granted Cleco’s motion, denied Mr. Ardoin’s motion, and dismissed his claim. 

Mr. Ardoin appealed the administrative law judge’s rulings to the Louisiana Third Circuit Court of Appeal, arguing that the administrative law judge erred as a matter of law in determining that he was not covered by the Workers’ Compensation Act.  He pointed out that he was injured on his employer’s premises while wrapping up the affairs of his employment pursuant to an agreement with the employer.

The appellate court was tasked with determining whether Mr. Ardoin should be considered acting within the “course and scope” of his employment when he was clearing his desk. Reviewing Louisiana jurisprudence on the subject of employees seeking Workers’ Compensation benefits for injuries sustained before or after work hours, the court concluded that the time period between termination of employment and the injury was determinative. The Third Circuit held that a terminated employee could be considered acting within his course and scope of employment if he was injured on his employer’s premises within a “reasonable” amount of time of the termination. The court found that the delay between the Friday evening termination and the Monday morning injury was an unreasonable period of time. Thus, the court concluded that Mr. Ardoin was not acting within the course and scope of his employment and affirmed the Workers’ Compensation Judge’s determination that he was not entitled to Workers’ Compensation benefits. 

Notably, one judge dissented pointing to the fact that the delay resulted from Cleco’s insistence that Mr. Ardoin wait until Monday morning to clean out his office.  Accordingly, the dissent argued that Cleco granted Mr. Ardoin what it considered a reasonable time and that the injury occurred during this period. Therefore, Mr. Ardoin’s delay should not be considered unreasonable. 

Take Away: When terminating an employee, an employer should require the employee to immediately vacate the premises so that the employer may be afforded tort immunity for workplace injuries under the Workers’ Compensation scheme.

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

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Eric Patterson was a security guard at Big Dawg’s lounge located in Gretna, Louisiana. On April 23, 2007, Eric was shot several times by an unknown assailant while standing in the parking lot in front of the lounge. Eric’s father filed a wrongful death action against, among others, the owners / lessors of the building in Patterson v. DeMatteo. Mr. Patterson alleged that the building owners were negligent in failing to recognize the foreseeability of criminal activity on the premises, failing to have an adequate security plan for dealing with the criminal activity and failing to have proper regard for the safety of others. The building owners filed a Motion for Summary Judgment on the ground that they owed no duty to protect Eric from the criminal acts of an unknown assailant.

In support of the Motion for Summary Judgment, the building owners introduced the following undisputed evidence: (1) Eric was shot by an unknown assailant, (2) the premise was leased to the bar owner at the time of the shooting and the building owners had no involvement in the operation of the bar, and (3) neither the building owners nor any of their employees or agents were present at the time of the shooting. In opposition to the motion, Mr. Patterson introduced the report of an expert in the areas of forensic criminology and security that outlined crime reports for the area where the bar was located and surrounding areas. Based on this evidence, Mr. Patterson’s expert concluded that the building owners had a duty to monitor criminal activity in the area and provide subsequent security measures. The trial court agreed that the building owners had no duty to prevent the actions of an unknown assailant and granted their motion for summary judgment.

The appellate court affirmed the judgment of the trial court. In reaching its decision, the appellate court, citing Harris v. Pizza Hut of Louisiana, Inc. noted that generally there is no duty to protect others from the criminal activities of third persons. Rather, the duty to protect others from a criminal act arises only under the limited circumstances where the act is reasonably foreseeable to the business owner or when there is a voluntary assumption of the duty to provide protection. Applying these principles of law to the facts at hand, the court found that under the circumstances of the case: i.e., defendants were not the owners of the business, only the owners of the immovable property; defendants were not involved in any aspect of the business; they did not assume any liability of the actions of the business owners; and, they did not undertake or assume the duty to provide protection or security, defendants owed no duty to protect the patrons of the business from the criminal act of unknown assailant.

Take-Away: Premise owners / lessors who have no ownership or control of a business operating in their property generally will not be held responsible for the criminal activities of third persons.

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Although, it is well known that cigarette smoke can be harmful to a person’s health, cigarette butts can also be dangerous.  The question decided by the Louisiana Second Circuit Court of Appeal in Adams v. Louisiana State University Health Sciences Center Shreveport (“LSUHSC”), was whether, as a matter of law, LSUHSC, a public facility, is exempt from responsibility for the damages Sherry Adams sustained when she fell on a wet cigarette butt located on a handicap entrance ramp to the facility. 

On August 9, 2005, Ms. Adams, an off-duty LSUHC employee, slipped and fell when she was going to visit her uncle who was a patient in the hospital. As a result of the fall, Ms. Adams sustained serious injuries to her right hand, fingers, and right ankle. She sued LSUHSC alleging that, at the time of the incident, the ramp was unreasonably dangerous and defective because of the collection of cigarette butts on the ramp.  She further alleged that LSUHSC knew or should have known of the unreasonably dangerous condition or defect associated with the collection of cigarette butts and that the condition could have been prevented if the hospital had exercised reasonable care.

After sufficient discovery, LSUHSC filed a motion for summary judgment, which was granted. The trial court found that: (1) Ms. Adams claims arose under La. C. C. art. 2317 (pdf), which imparts liability upon owners for damages caused by their defective things, and La. R.S. 9:2800 (pdf), Louisiana’s statute limiting liability for public entities arising from public property; (2) Ms. Adams could not meet her burden of proof against LSUHSC; and, (3) the accumulation of cigarette butts did not constituted a defective condition or an unreasonably dangerous condition as contemplated by law. 

On appeal, the Second Circuit reversed and remanded the case to the trial court, holding that the trial court had incorrectly applied Louisiana law regarding a defective condition in property and that Ms. Adams’ claims against LSUHSC were correctly asserted under La.C.C. art. 2315 (pdf), Louisiana’s general tort law. The Second Circuit relied upon its own prior ruling in Holden v. Louisiana State University Medical Center-Shreveport in which it held that La. C.C. art. 2317  and La.R.S. 9:2800 do not apply when a person slips and falls on a foreign substance located on a premises. The court explained that there is a difference between “a defect in the premises” and “a defect on the premises.” Therefore, the court concluded that “the temporary presence of a foreign substance is not, in and of itself, a defect for purposes of strict liability under La. C.C. 2317” and, by extension, La. R.S. 9:2800. Rather, in such cases, the court held that negligence is measured by La. C.C. art. 2315. 

The court also noted that a hospital owes a duty to its visitors to exercise reasonable care to keep its premises in a safe condition commensurate with the particular substance involved but that the standard of care for a hospital is lower than that for a merchant. The Second Circuit held that, because the trial court applied the incorrect law, the trial court failed to consider the relationship between the risk of someone slipping and falling on cigarette butts located on the handicap ramp and the reasonableness of the measures taken by the hospital to eliminate that risk. 

In addition, after conducting a complete review of the trial court summary judgment record, the Court concluded that Ms. Adams had identified material issues of fact that precluded summary judgment. Among the disputed facts was that: (1) LSUHSC had some knowledge of the cigarette butts at the entrance where Ms. Adams fell; (2) someone was supposed to clean the entranceway where Ms. Adams fell; and, (3) the person who cleaned the entrance may not have done it regularly. Moreover, the Court held that the evidence in the record was enough to provide factual support that LSUHSC had actual or constructive notice of the cigarette butts on the ramp. The Court also held that it was a jury’s function, not the court’s, to decide if LSUHSC’s policy for keeping the entrance ramp clean was reasonable. The Court, ultimately, held that LSUHSC failed to carry its initial burden of proving there was no genuine issue of material fact and that it was entitled to judgment as a matter of law.

Take-Away: The Adams’ case demonstrates that a state run hospital can not rely upon La. R.S. 9:2800 to exempt it from its general duties to keep its premises safe. This case also demonstrates that a hospital cannot prevail on a summary judgment if the plaintiff establishes that the hospital may have had some knowledge of a potentially defective condition or did not have a policy to reasonably rectify a known defective condition.

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After shopping at Toys “R” Us, Nancy Monson decided to walk from the Toys “R” Us parking lot to a restaurant across the street. Walking to the restaurant, Ms. Monson stepped in a hole in a grassy area between the Toys “R” Us parking lot and the street and injured her leg. Ms. Monson sued Toys “R” Us, its insurer, the property owner, the property manager, and the Parish of Jefferson in the action Monson v. Travelers Prop. & Cas. Insur. Co.,  alleging that the defendants failed to maintain the property in a safe condition. After Toys “R” Us and the Parish of Jefferson were dismissed on summary judgment and more than a year after she filed her lawsuit, Ms. Monson added Acadian Landscapes of Louisiana, Inc. (“Acadian”), the landscape maintenance company hired by Toys “R” Us to maintain its premises, as a defendant. In response, Acadian filed an exception of prescription (Louisiana’s equivalent of a statute of limitations defense), arguing that Ms. Monson’s claims were filed after the one-year prescriptive period applicable to tort claims had lapsed and that her lawsuit against it was untimely. The trial court granted the exception, and Ms. Monson appealed. 

On appeal, Ms. Monson argued that the original filing of her lawsuit had interrupted the prescriptive period as to Acadian, because it was jointly liable with Toys “R” Us, a timely sued defendant. In addition, she argued that the judicially created concept of contra non valentem agere nulla currit praescriptio (“contra non valentem”), which is Latin for, ‘prescription does not run against one who is unable to act,’ served to excuse her delay in suing Acadian. She argued, in relevant part, that her late addition of Acadian related back to the timely naming of Toys “R” Us and that Toys “R” Us had prevented her from timely learning the identity of the landscape maintenance company. 

The court of appeal affirmed the dismissal, finding that only when a joint torfeasor is timely sued and remains in the case will the facially untimely addition of another joint tortfeasor be considered timely. Because the claims against Toys “R” Us had been dismissed, there was no joint tortfeasor remaining for Ms. Monson to use in applying relation back. Therefore, her claims against Acadian were untimely. The appellate court also rejected her argument that contra non valentem excused her untimely addition of Acadian. The appellate court noted that the record established that Toys “R” Us had not prevented Ms. Monson from timely discovering Acadian’s identity. Instead, she had not even begun her discovery efforts to learn the identity of the landscape maintenance company until after the one-year prescriptive period had already run. Moreover, the court noted that under the “discovery rule,” Ms. Monson was deemed to know everything that she could have learned through reasonable diligence. Finding her failure to learn the identity of Acadian before the prescriptive period had run was inexcusable, the appellate court held that Monson’s claims against Acadian were properly dismissed. 

Take-Away: Defendants need to be vigilant in challenging their late addition to existing lawsuits; and the plaintiff bears the burden of proving that the late addition of a defendant was not due to her neglect.

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