Contractor Not Responsible for Table Saw Injury

In August 2009, plaintiff Patrick Chaplain, a carpenter, was working at a house being renovated by a contractor. His employment status, i.e., whether he was an employee or sub-contractor, is unclear. Plaintiff was cutting prefinished wood flooring on a table saw owned by the contractor, when his left hand was struck by the table saw blade, amputating several fingers. The safety guard was not on the table saw at the time.

Plaintiff sued the contractor under Louisiana Civil Code Article 2317, which governs liability for things in one’s custody, and Article 2317.1, which governs the liability of the owner or custodian of a thing for damage caused by ruin, vice, or defect in things. The contractor filed a motion for summary judgment which the trial court granted.

On appeal, the Louisiana Fourth Circuit Court of Appeal noted that plaintiff had been a carpenter for 30 years, worked with prefinished wood floorboards before, seen operating manuals for table saws but never read them, and seen warning labels saying that the table saw should only be used with the guard in place. Plaintiff knew the guard was not on the table saw at the time of his accident. In order to use the table saw to perform the cuts he needed to make, the blade guard could not be installed. Plaintiff was aware of other tools he could have used to make the cuts he needed to make. The contractor, after hiring plaintiff, bought a new table saw and gave the box to plaintiff and his son for assembly. A blade guard was included in the box, but the saw was assembled without the guard.

In order to prevail on a claim under Article 2317, a plaintiff must prove that the thing which caused damage was in the defendant’s custody and control (garde), the thing had a vice or defect which created an unreasonable risk of harm, and the injuries were caused by a defect. Article 2317.1 adds the requirement that the injured plaintiff prove that the owner/custodian knew, or in the exercise of reasonable care, should have known of the unreasonable risk of harm, that the damage could have been prevented by the exercise of reasonable care, and that the owner/custodian failed to exercise such reasonable care.

The Fourth Circuit affirmed summary judgment on behalf of the contractor, finding that the table saw was under plaintiff’s control at the time of the accident and that plaintiff did not prove that the table saw had a defect much less that the contractor defendant knew of the defect. The accident took place because the blade guard was not on the table saw, “a fact of which [plaintiff] was well aware.” Plaintiff chose to use the table saw even though other tools were available to perform the cuts.

Take-Away: A contractor who does not have custody or control over a tool and did not have knowledge of an alleged defect in the tool cannot be held responsible for injury caused by its use.

Don't Shop 'til You Drop

On November 1, 2013, Virgie Ray was shopping for clothes at the Stage Store, the same retail store where she had shopped regularly for years. Standing next to a rolling clothing rack, Ms. Ray asked an employee for help with finding a blouse. Attempting to follow the employee to another area of the store, Ms. Ray stepped into the clothing rack, and her right foot caught the bottom bar of the rack, causing her to fall. 

Ms. Ray filed a slip-and-fall suit against the Stage Store owners (“Stage”), claiming that she suffered injuries to her knees, face, shoulder, neck and right eye. She claimed that the clothing rack created an unreasonable risk of harm that Stage’s employee had a duty to warn her about. To prove her claim under Louisiana law, Ms. Ray must show that an unreasonably dangerous condition existed in the store when she fell, and that Stage created the condition, knew that the condition existed, or should have known the condition existed.  In addition, Ms. Ray must show that Stage’s employee failed to exercise reasonable care to protect her from the unreasonably dangerous condition.  Stage filed a motion for summary judgment asking the court to dismiss Ms. Ray’s claims on the basis that she had presented no evidence to support the elements of her claim. According to Stage, the clothing rack and its exposed feet were open and obvious and did not create an unreasonable risk of harm, and its employees had no duty to warn Ms. Ray of the rack’s presence or location.

Video evidence of the accident confirmed that the clothing rack was plainly visible to Ms. Ray immediately before she fell, and although Ms. Ray testified at her deposition that she could not see the bottom of the rack, she made a contradictory binding admission in which she denied that she did not see the bottom of the rack before she fell. Based on the available evidence, the court found that Ms. Ray was aware of and saw the clothing rack before she tripped and fell. As a result, the court concluded that the clothing rack did not create an unreasonable risk of harm. Rejecting Ms. Ray’s argument that she never had a chance to look down before she began to follow the employee, the court found that neither the accident video nor Ms. Ray’s own testimony reflected that she did not have a chance to look down, or that something prevented her from looking down, before she started walking. 

The court also rejected Ms. Ray’s argument that the store employee’s actions in placing or using the clothing rack were unreasonable and/or violated the store’s policy to transfer clothes from rolling racks to permanent racks as quickly as possible and then move the rolling racks to the warehouse when finished. Ms. Ray did not present any evidence showing that the employee’s actions violated the store policy or were otherwise unreasonable. Moreover, Ms. Ray failed to cite a single Louisiana case that found an unreasonable risk of harm was created, and the defendant had a duty to warn, when a temporary clothing rack was used for the same purpose, in the same manner, and in accordance with the same or a similar store policy.

Finding Ms. Ray failed to come forward with evidence sufficient to create a genuine dispute for trial on the essential elements of her claim, the court granted Stage’s motion and dismissed Ms. Ray’s claims.

Take-Away: The mere presence of an obstacle in a store, such as a temporary clothing rack, does not create an unreasonable risk of harm when the condition is open and obvious. Additionally, a store employee’s use/maintenance of a temporary rack or display case does not amount to a failure to use reasonable care unless the claimant can show that the employee’s conduct violated a store policy or was otherwise unreasonable. In order to avoid such claims, retail store owners should take steps to implement a feasible store policy on proper use and maintenance of temporary racks and/or display cases and to train employees to ensure routine compliance with that policy.

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

To Grandmother's House We Go . . . At Your Own Risk.

On April 15, 2012, 37-year-old Angela Lawrence agreed to go over to her grandmother’s house and climb up on the roof to clear off some limbs and debris, as she had done several times before. Because the extension ladder Lawrence normally used had been stolen, her grandmother, Dorothy Dell Sanders, suggested that she use an A-frame ladder stored in Sanders’ shed. Lawrence initially suggested waiting to get an extension ladder, but ultimately used the A-frame ladder to get on the roof of the house without a problem. However, when Lawrence was coming down off of the roof, the ladder shifted and she fell to the ground, resulting injuries to her wrist, neck, and back. Lawrence then filed suit against Sanders and Sanders’ insurer, Allstate Insurance Company, in Louisiana state court, alleging negligence in failing to have safe equipment for her to use, failing to maintain the equipment in a safe condition, and providing faulty and damaged equipment. 

Sanders and Allstate moved for summary judgment, arguing that Lawrence was in the best position to determine if the ladder was unsafe before she used it to climb onto the roof. Lawrence countered by arguing that a genuine issue of material fact existed as to whether it was unsafe to use the ladder, and that the main question was whether Sanders was negligent for failing to have someone hold the ladder for her, or for failing to provide an extension ladder instead.   The trial court held that there was no genuine issue of material fact as to alleged defect in the ladder or Sanders’ alleged negligence, and granted summary judgment in favor of Sanders and Allstate. Lawrence appealed the decision to the Second Circuit Court of Appeals. Lawrence v. Sanders.

The Second Circuit first turned to the issue of Sanders’ alleged negligence under La. Code Civ. art. 2315 (pdf), beginning with an inquiry as to whether Sanders had a duty to hold the ladder for Lawrence, or find someone else to do so. At the outset the Second Circuit cited the Louisiana Supreme Court’s holding in Bufkin v. Felipe’s Louisiana, LLC, which held that “a defendant generally does not have a duty to protect against that which is obvious and apparent.” The Second Circuit also looked to the First Circuit’s decision in Barrow v. Brownell,  In Barrow, the court held that a handyman who fell off of a ladder while taking down Christmas lights was not owed a duty by the homeowner or her insurer, because the handyman alone decided when, where, and how to do his job, and his fall occurred as a result of the manner in which he did the job. Lawrence attempted to distinguish her case from Barrow, saying that Sanders instructed her to use the A-frame even after she expressed concerns about it. The Second Circuit rejected this argument, noting that in her deposition, Lawrence stated she had performed the task of cleaning her grandmother’s roof at least 20-24 times before. Further, Lawrence agreed to use the A-frame ladder, even though she Sanders was not upset with the suggestion to wait for an extension ladder. Finally, Lawrence admitted that she never asked anyone to hold the ladder. Based on these facts, the Second Circuit found that: (1) Lawrence was in a better position than Sanders to determine if the ladder was inadequate for the task; (2) the hazards in the use of the ladder were obvious and apparent to Lawrence; and (3) Lawrence decided when, where, and how to do the job. Therefore, the Second Circuit held that Sanders did not owe a duty to Lawrence and affirmed dismissal of the negligence claims. 

As to Lawrence’s allegation that her injuries were due to a defect in the ladder under La. Civ. Code art. 2317 (pdf), the Second Circuit began its analysis by noting that Lawrence had the burden to prove: (1) the ladder was in Sanders’ custody; (2) that the ladder contained a defect which presented an unreasonable risk of harm to others; and (3) that the defective condition caused the damage and Sanders should knew or should have known of the defect. 

As to the first element, there was no dispute that the ladder was in Sanders’ custody. But as to the second element, the Second Circuit held that Lawrence failed to meet her burden to establish the existence of a defect, an essential element to her claim. The Court held that there was no factual support for the claim that the ladder was defective, citing Lawrence’s deposition testimony that “she did not look at [the ladder]” before climbing on the roof or after her fall, and further stating that Allstate “didn’t say it was damaged or anything,” upon examining the ladder. The Court also rejected Lawrence’s attempt to argue that the ladder was too short for the job, ruling that the height of the ladder could not meet the definition of “an imperfection pos[ing] an unreasonable risk of injury to persons exercising ordinary care and prudence. Finally, as to the last element, the Court pointed to the fact that Lawrence used the ladder to safely get onto the roof, and failed to provide any evidence that the elderly Sanders, who remained in the house while Lawrence used the ladder, should have known of the defect. Therefore, the Second Circuit affirmed the trial court’s summary judgment against Lawrence on the allegations of defect. 

Take-Away: An owner is not automatically liable for injuries sustained by someone performing a task on his property, particularly if the one performing the task: (1) is in the best position to determine the risk of harm and (2) controls when, where, and how to do the task.     


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

'Post' Haste Makes Waste Of A Premises Liability Claim

Plaintiff Jacqueline Scanlan filed a lawsuit arising from injuries she alleges were sustained after slipping and falling on the steps at the United States Post Office in Gueydan, Louisiana. Scanlan maintained a post office box for at least 20 years prior to her accident, which she checked at least 2–3 times a week. On many of those visits, Scanlan used the steps on which the fall occurred. She testified that the steps had not changed over the years and were the same on the day of the fall as they had always been. Scanlan also acknowledged that that she was unsure what caused her to fall.  Most significantly, Scanlan made no specific allegations of negligence on the part of the United States or any of its employee.

In her federal Complaint, Scanlan premised federal jurisdiction on the Federal Tort Claims Act (“F.T.C.A.”). Generally, the United States, as the sovereign, is immune from suit unless it has consented to be sued – hence, the legal doctrine of “sovereign immunity.” However, one example of the United States’ waiver of its sovereign immunity is the Federal Torts Claims Act. To paraphrase this limited waiver of sovereign immunity: The FTCA allows for recovery from the United States for personal injury where the personal injury “is caused by the negligent or wrongful act or omission” of the Government “under circumstances where the United States, if a private person, would be liable to” a person under Louisiana law. The applicable Louisiana law under which Scanlan would have to prove that a public entity, like the United States, is liable requires Scanlan to establish that: (1) the United States had custody of the premises; (2) there was a defect in the premises that created an unreasonable risk of harm; (3) the United States had “actual or constructive notice of the defect;” (4) the United States failed to remedy the defect within a reasonable time; and (5) the defect caused the accident and injuries.

The United States sought dismissal of Scanlan’s claim on the grounds that she failed to satisfy the criteria of both the FTCA and the applicable Louisiana premises liability law. The Court agreed and dismissed Scanlan’s case via summary judgment on the grounds that Scanlan failed to establish that the United States (1) had the requisite prior notice that there was a defect in the Post Office steps and (2) failed to remedy the alleged defect within a reasonable time. The Court explained that in essence Scanlan was making a strict liability claim (which does not require proof of knowledge of the defective condition); however, such a strict liability claim was no longer the law in Louisiana. Thus, Scanlan’s failure to set forth facts establishing the United States had knowledge of the alleged defect in the Post Office steps, combined with the subsequent failure to remedy the defect in a reasonable time, were fatal to her claims against the United States under the FTCA and the ancillary Louisiana premises liability law.

Take-Away: Under the Federal Tort Claims Act and most Louisiana premises liability laws, *knowledge* is power and a necessary element of any liability claim against a public entity.

Circle K Wins Battle Over Undisturbed Stream of Water

On a rainy day in August, Vickie Buchanan slipped and fell on water at the Circle K store located on Howard Avenue in New Orleans, Louisiana. The source of water on which she fell was a one inch wide stream flowing from a cooler that stood near the entrance to the store. A warning cone had been placed near the entrance since it had been raining that day.

Because this case involved an alleged defect in the premises that produced a hazardous condition – as opposed to just a spill of liquid – Ms. Buchanan had two theories for recovery against Circle K: negligence and strict liability. While each theory of recovery has its own set of evidentiary requirements, both claims need evidence that a property owner had actual or constructive notice of the alleged water. In other words, Ms. Buchanan was required to present evidence that the Circle K employees actually knew that the water was on the floor or that the water was on the floor for a long enough time such that the Circle K employees should have discovered it in the exercise of reasonable care. A failure to produce evidence of either is fatal to Ms. Buchanan’s claims against Circle K.

According to Circle K, its employees inspected the store equipment on a daily basis, and its employees were trained to watch for hazards within the store. Circle K’s maintenance records indicated that there were no prior problems with the cooler in the days leading up to and on the day of the accident. Furthermore, Ms. Buchanan testified at her deposition that the stream of water appeared “undisturbed” and that she did not know how long it has been on the floor. Following the plaintiff’s deposition, Circle K filed a motion for summary judgment arguing that Ms. Buchanan could not establish liability since she had no evidence that Circle K knew or should have known of the water prior to the subject accident. In opposition, Ms. Buchanan failed to produce specific evidence that could refute or cast doubt on Circle K’s arguments. Accordingly, the court determined that because Ms. Buchanan would not be able to meet her burden of proof at trial, there was no genuine issue for trial and it dismissed her case against Circle K.

Take-Away: Regardless of whether a plaintiff brings a negligence or strict liability claim, there is no liability without evidence of actual or constructive notice of an unreasonably dangerous condition.

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

Taking the Guesswork Out of Proving Constructive Notice

On the night of April 5, 2012, Royanne Davis slipped and fell on a kitty-litter-type substance in the parking lot of the Spur and Deli gas station in Belle Chasse, Louisiana. Ms. Davis sued Cheema One, Inc. (“Cheema”), the owner of the gas station, alleging that it failed to properly maintain the premises, failed to discover and correct an unsafe condition on the premises, failed to exercise reasonable care to prevent unsafe conditions on the premises, and failed to warn her of the unsafe conditions. To prove her claim under Louisiana law, Ms. Davis first must show that an unreasonably dangerous condition existed in the Spur and Deli parking lot, and then she must present evidence that Cheema either created that condition, knew that the condition existed (i.e., actual notice), or should have known that the condition existed (i.e., constructive notice).

Following discovery, Cheema filed a motion for summary judgment asking the trial court to dismiss Ms. Davis’s claim. While Cheema admitted that a kitty-litter-type substance was in its parking lot on the night of Ms. Davis’s fall, Cheema nevertheless argued that the plaintiff had no evidence that it put it there or that Cheema had actual or constructive notice of its presence. Ms. Davis opposed the motion on two bases: (1) she argued that Cheema employees had constructive notice of the kitty-litter-type substance, and (2) she argued that the Cheema employees put the kitty-litter-type substance in the parking lot.

The court determined that Ms. Davis failed to prove constructive notice because she had no evidence that the kitty-litter-type substance was on the ground for such a period of time prior to her fall that Cheema employees would have discovered it had they exercised reasonable care. Her reliance on possibilities and speculative inferences about how long the kitty-litter-type substance was in the parking lot was not enough to meet her burden of proof.

Nevertheless, the court held that there was a genuine issue of material fact as to whether Cheema employees put the kitty-litter-type substance in the parking lot. Cheema did not contest Ms. Davis’s argument that kitty litter is generally used by gas stations to soak up fluid spills. Moreover, while Cheema produced a female employee who insisted she was the only employee on duty that night, Ms. Davis testified that she was assisted by a male cashier. Thus, Ms. Davis presented enough evidence to create a genuine issue of material fact as to whether Cheema created the condition. Ms. Davis was permitted to pursue her claim on this basis only.

Take-Away: Speculation is not enough for a constructive notice claim. There must be affirmative proof that an unreasonably dangerous condition existed for a certain period of time prior to the accident.

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

It's a Matter of Time.....and Signs

On October 3, 2013, plaintiff visited a Wal-Mart store in Houma, Louisiana. As she approached the cash register to check out, plaintiff slipped and fell on the ground, which caused her injuries. Around the time of the accident, plaintiff saw a Wal-Mart employee operating a waxing machine, but she could not recall what caused her to fall. Other witnesses, including the plaintiff’s husband, could not identify anything that would have caused the fall. A Wal-Mart manager recalled passing the location where the accident occurred and concluded that the area was dry, and added that it was company policy to secure an area prior to waxing it.

Defendant, Wal-Mart Louisiana L.L.C., filed a motion for summary judgment arguing the plaintiff had failed to produce evidence to support two elements of her claim. First, Wal-Mart argued that there was insufficient evidence to satisfy the “cause-in-fact” element of the plaintiff’s negligence claim. Second, and in the alternative, Wal-Mart argued that the plaintiff did not provide enough evidence to prove a crucial element of the Louisiana’s merchant premises liability act.

Turning to their first argument, Wal-Mart argued that the plaintiff had failed to positively demonstrate that an unsafe condition in the store caused her injury. Wal-Mart cited to deposition testimony of the plaintiff and her husband, and noted that both did not know what caused her to slip and fall. Plaintiff argued that there were inferences to suggest that the wax on the floor caused the slip and fall.

Regarding Wal-Mart’s second and alternative argument, the company focused on a major element in Louisiana’s merchant premises liability act. Louisiana Revised Statue 9:2800.6 (pdf) governs a negligence action against a merchant for damages resulting from injuries sustained in a slip and fall accident. Under that statute, a merchant owes a duty “to persons who use his premises to exercise reasonable care to keep his … floors in a reasonably safe condition.” The plaintiff’s claim is governed by the merchant statute, which requires that a plaintiff satisfy his burden of proof by establishing:

  1. The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;
  2. The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence;
  3. The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Wal-Mart focused on element (1) of this statute and argued that the plaintiff had failed to demonstrate that there was a condition in the store that presented an unreasonable risk of harm. Most notably, Wal-Mart argued that the plaintiff solely relied on the fact that she fell, and could not demonstrate what condition had created an unreasonable risk of harm that was foreseeable. In opposition, plaintiff argued that there were inferences that suggested that the recent wax coating on the ground was the unsafe condition.

After reviewing the law, facts, and arguments from both parties, the court agreed with the defendant, Wal-Mart. The court concluded that the plaintiff had failed to make a positive showing of an unreasonable condition existing prior to her slip and fall.

Take-Away: The fact that a store employee is maintaining an area within a store does not necessarily mean an unreasonably dangerous condition exists.  The person making the claim against the premises owner must prove that the condition created an unreasonable risk of harm that was foreseeable.  In order to avoid such claims, a premises owner should take steps to securely block-off an area that is being fixed or undergoing maintenance.  Additionally, if the work performed requires a drying period, a premises owner should keep an area greater than that which was worked-on blocked off for an appropriate amount of time to ensure its safety.


This article was co-authored by Carlos Benach, a law clerk at Irwin Fritchie Urquhart & Moore LLC.

Close Proximity Does Not Mean Constructive Knowledge

Plaintiff, Elouise Burns, filed a personal injury lawsuit due to a slip and fall at a Winn-Dixie grocery store.  Burns alleged that her fall was due to an accumulation of water or other substance on the floor in the ice cream aisle.  Winn-Dixie filed a summary judgment motion arguing that the plaintiff failed to meet the requisite burden of proof governing negligence claims against merchants, which is set forth in La. R.S. 9:2800.6 (pdf).  In particular, Winn-Dixie argued that plaintiff failed to show that its employees created or had actual or constructive notice of the alleged unreasonably dangerous condition, a necessary element of her claim.  

In support of its motion, Winn-Dixie used the plaintiff’s deposition testimony to demonstrate that she did not see the liquid on the floor prior to her fall and that she had no evidence of how long the liquid had been on the floor.  In opposition, the plaintiff attempted to demonstrate constructive notice of the liquid by noting that the location of her slip and fall was in close proximity to the store’s cash registers and the view from that area was clear and unobstructed.  In support of her constructive notice argument, plaintiff relied upon the affidavit of a law clerk from her attorney’s firm, who visited the store almost two weeks after Winn-Dixie filed the Motion for Summary Judgment. Also, at the hearing on the motion the plaintiff introduced her responses to Winn-Dixie’s written discovery, as well as Winn-Dixie’s responses to her written discovery in an effort to show there were no “wet floor” signs in the area where she fell. After considering this evidence, the trial court granted summary judgment in favor of Winn-Dixie and dismissed the plaintiff’s claims.  The plaintiff then filed a Motion for New Trial arguing the following:  (1) the grant of summary judgment was contrary to the law and evidence; (2) plaintiff had newly discovered evidence to defeat summary judgment; and (3) granting of a new trial was within the trial court’s discretion and in the interest of justice.  The trial court denied the plaintiff’s Motion for New Trial and plaintiff appealed. 

La. R.S. 9:2800.6 governs merchant liability for slip and fall cases and requires that a claimant has the burden of proving, in addition to all other elements of his or her cause of action, the following elements:  1) that the condition presented an unreasonable risk of harm to the claimant and 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 occurrence; and 3) that the merchant failed to exercise reasonable care.  Constructive notice is defined as the condition must have existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.  Although there is no specific time period, “positive evidence” is required to demonstrate constructive notice to meet this burden. 

The appellate court was critical of the evidence plaintiff presented in her opposition to Winn-Dixie’s motion.  First, the court noted that the law clerk’s affidavit offered no proof that the clear liquid on the floor—the alleged cause of the plaintiff’s fall—had been there for a period of time sufficient to create the requisite constructive notice.  Next, plaintiff’s “close proximity” argument was insufficient to show constructive notice as the statute specifically provides that an employee’s presence alone does not suffice as constructive notice. Further, the plaintiff’s “newly discovered evidence” argument was discredited.  This evidence consisted of an undated affidavit of an alleged witness who claimed she saw the plaintiff slip in the aisle, that there were several employees in that vicinity, that one of the employees commented about the lack of signage, and that the freezer had been leaking for quite a while.  The same witness—the plaintiff’s former daughter-in-law—had given a written statement six months after the accident that failed to mention any of these “facts.”  The appellate court concluded that the plaintiff could have obtained the affidavit prior to the summary judgment hearing, and further concluded that the trial court’s refusal to consider these unsworn and unverified written statements, which were not of sufficient evidentiary quality to be considered, was correct. In sum, the plaintiff failed to come forward with sufficient evidence in support of her claim that the store owner had actual or constructive notice of the alleged hazardous condition.   

Take Away:  In slip and fall cases where a claimant is attempting to establish that a store owner had constructive knowledge of a hazardous condition, the claimant must provide positive evidence to show the period of time that that the hazardous condition existed and that this time period was sufficient to place the merchant on notice of the condition.

This article was co-authored by Darleene Peters, Counsel at Irwin Fritchie Urquhart & Moore LLC.

Skating Circles around Plaintiff's Case

In Taylor v. JeanShineda Taylor and others went to Airline Skate Center in Metairie, Louisiana. At the Skate Center, Ms. Taylor obtained a pair of size 7 skates and wore them for about 30 minutes. During that time, she was walking on the skates in the “kiddie” area and in the carpeted area while holding the hand of her 5-year-old son. After 30 minutes, she took a step and the front wheels of her left skate allegedly locked up, causing her to fall. Paramedics arrived soon afterwards and transported her to the hospital, where it was learned that she had broken her ankle. Approximately two weeks later, she underwent surgery.

Ms. Taylor filed a suit for damages in the 24th Judicial District Court for the Parish of Jefferson against Airline Skate Center, Inc. and Robert Jean. In response, the defendants filed a motion for summary judgment asking that the case be dismissed. They argued that Ms. Taylor couldn’t prove that the skates were defective or that they had notice of the alleged defect. The trial court agreed and granted the motion, dismissing the defendants from the case. Ms. Taylor appealed the dismissal to the Louisiana Fifth Circuit Court of Appeal.

On appeal, a three judge panel of the Fifth Circuit analyzed the motion for summary judgment de novo, meaning that they didn’t defer to the findings of the trial court in any way. The Court then held that Louisiana Revised Statute 9:2800.6 (which applies to claims by slip/trip and fall victims against merchants) and/or Louisiana Civil Code Article 2317.1 (which applies to claims against the owners of injury causing things – in this case roller skates) applied to Ms. Taylor’s claims. And, it held that Ms. Taylor had to prove in her case to prevail and, more immediately, to defeat summary judgment that her skate was defective and that the defendants knew or should have known of the defect.   

Ms. Taylor argued that the trial court erred in granting summary judgment, because it weighed and made credibility determinations concerning the evidence before it, which is not permissible when making summary judgment rulings. The Fifth Circuit disagreed with Ms. Taylor’s arguments.

First, the court held that a defect could not be inferred solely from the fact that the accident occurred. Next, it examined the evidence before it. On the one hand, Ms. Taylor presented her own testimony that the skate at issue looked dirty and worn and that it “locked up,” allegedly indicating that the skate was not properly maintained and was defective. On the other hand, the defendants presented evidence that the skates were examined and maintained on a regular basis, and inspected prior to being given to a renter. It was also pointed out that Ms. Taylor had admitted that she couldn’t actually identify or prove a specific defect with the skate, she did not report any problem with her skates either before or after the accident, and she failed to preserve the skates for evidence. Based on these findings, the appellate court held that Ms. Taylor’s evidence, i.e. her deposition testimony, consisted of nothing more than “conclusory allegations, improbable inferences and unsupported speculation,” which wasn’t enough to carry her burden to prove a defective skate. Accordingly, the Court affirmed the trial court’s dismissal of her case.

Take-Away: Negligence cannot be inferred against a business owner or an owner of an allegedly defective thing simply because an accident happened and somebody got hurt. And if the plaintiff’s “evidence” that she was injured by something “defective” consists of nothing more than conclusory allegations or calls for improbable inferences or speculation about a defect, then the case is subject to being summarily dismissed.

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

A Tractor Is Not A Scaffold: Homeowner Not Responsible for Injuries to Independent Contractor's Employee Injured after Falling Off Of a Ladder on the Tractor Platform Used as a Make-Shift Scaffold.

Leroy Cooley entered into a construction contract with Keith Lewing, d/b/a Lewing Construction, to build a new home. Cooley gave Lewing permission to use his John Deere tractor, and, given Lewing’s vast experience operating construction equipment, Cooley did not provide Lewing with instructions for the tractor’s use.

After using the tractor for weeks, Lewing and two of his employees, including Plaintiff Charles Isgitt, decided to place a ladder on the tractor platform as a make-shift scaffold to reach the roof of the home. Once the “scaffold” was constructed, Isgitt climbed onto the platform, and Lewing lifted the tractor loader to a sufficient height. While Isgitt was on the ladder, Lewing left the tractor to assist in gathering supplies, and as he exited the tractor, Lewing’s tool belt hit the tractor lever and the loader tilted. Isgitt then fell to the ground and suffered severe injuries to his leg.

Isgitt filed a workers’ compensation claim against his employer Lewing, and a personal injury claim against both Lewing and Cooley (the home owner). In defense, Cooley claimed that he owed no duty to Isgitt to prevent Lewing, Isgitt’s employer, from using the tractor in the manner that ultimately resulted in Isgitt’s injuries. The trial court granted summary judgment in favor of Cooley, and Isgitt appealed.

The Third Circuit Court of Appeal analyzed Isgitt’s claim against Cooley under two categories: (1) liability of Cooley as a property owner and principal; and (2) independent negligence of Cooley. In his capacity as a property owner and a principal of the independent contract with Lewing, the Third Circuit recognized that he would generally not be liable to the offenses committed by independent contractors while performing their contractual duties. This general rule, however, is subject to two exceptions:

  1. The principal may not avoid liability for injuries resulting from an ultra-hazardous activity by hiring out the work to an independent contractor; or
  2. The principal cannot avoid liability when he/she reserves the right to supervise or control the work of the independent contractor or gives express or implied authorization to an unsafe practice.


The Court held that neither of these exceptions was applicable here so Cooley was not liable as a principal for the actions of his independent contractor, Lewing. 

The Court further held that Cooley was not negligent in his individual capacity due to his failure to provide Lewing with the tractor’s owner’s manual. The Third Circuit likened its analysis to that of a products liability law suits involving owner’s manuals. In a similar case in front of the Third Circuit, the court held that where a manufacturer fails to give an adequate warning, a presumption arises that the user would have read and heeded such warnings. Gautier v. McDonough Power Equip., Inc.  That presumption is rebutted, however, if the manufacturer produces evidence to show that the warning or instruction would have been futile.  Relying on this jurisprudence, the Third Circuit held that since it was clear that no amount of warning would have prevented Lewing from using the tractor as he did, Cooley was not negligent in failure to warn Lewing of the potential danger that ultimately resulted.

Take-Away: As a principal, a property owner will only be liable for injuries sustained by an independent contractor’s employees under two exceptions: (1) injuries result from an ultra-hazardous activity; or (2) the principal reserves the right to supervise or control the work of an independent contractor or gives express or implied authorization to an unsafe practice. As an individual, like a manufacturer, a property owner cannot be held liable for failure to warn of dangers in using a product if it is clear from the record that no warning would have prevented the injuries.

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