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

The case Arnold v. Brookshire Grocery Company highlights the importance of store owners being aware of and sensitive to potential spoliation issues in slip and fall cases. In Arnold, the plaintiff slipped and fell on a spot of broken eggs in an aisle of the defendant’s store. At the time of the fall, a store employee was stocking the shelves on the same aisle where the fall occurred. This employee was made aware of the broken eggs and he called another employee who cleaned up the area before the store’s manger arrived and photographed the scene.

The plaintiff alleged that the cleaning of the spot of broken eggs by the store employee constituted spoliation of evidence. The store owner filed an Exception of No Cause of Action seeking to dismiss the plaintiff’s spoliation claim. The trial judge found that the store employee’s actions in cleaning the broken eggs did not constitute spoliation of the evidence and the appellate court agreed. Instrumental to the court’s decision was the fact that there was no dispute that there were broken eggs on the floor and thus the employee’s clean-up of the mess did not impair the plaintiff’s claim against the store owner under Louisiana’s slip and fall statute (pdf). The court further noted that it is well settled Louisiana law that “Imposition of liability under the theory of spoliation of evidence is inappropriate when the record reveals no intentional destruction of evidence for the purpose of depriving the opposing party of its use.” Randolph v. General Motors Corp.

Take-Away:  This case demonstrates that a store owner in Louisiana may have an affirmative duty to preserve the scene of an alleged accident if there is a possibility that the conditions which lead to the accident might be disputed. In all circumstances store management should be alerted and given the opportunity to document the condition of the area at the time the accident occurred. Stated differently, if a store employee’s clean-up of a mess or spill impairs the plaintiff’s claim against the store owner under Louisiana’s slip and fall statute, then the plaintiff may have a valid claim for spoliation of evidence.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In Young v. Guide One Ins. Co., a woman slipped and fell while attending a funeral, failing to notice a semicircular step down from the sanctuary to the reception room. She sued the church and its insurer, and at trial, the jury returned a verdict in favor of the defendants, finding that the step down did not have a defect that created an unreasonable risk of harm (pdf). 

At trial, the plaintiff and fact witnesses presented conflicting evidence regarding the lighting in the area of the fall, with the plaintiff and her relatives testifying that the lighting was dark or dim and the disinterested witnesses testifying that the area was well lit. The plaintiff also admitted that she did not look where she was stepping when she opened the door to the recreation room. The only expert, called by the plaintiff, testified that the church did not meet the requirements of the Life Safety Code, although he admitted that he did not know if the church was old enough to fall within the grace period. He further testified that he was unsure whether the code even applied to religious facilities.

On appeal, the First Circuit held that in order to establish liability based on ownership or custody of a thing, a plaintiff must show the following:

1. the defendant was the owner or custodian of a thing which caused the damage;
2. the thing had a ruin, vice or defect that created an unreasonable risk of harm;
3. the ruin, vice or defect of the thing caused the damage;
4. the defendant knew or, in the exercise of reasonable care, should have known of the ruin, vice or defect;
5. the damage could have been prevented by the exercise of reasonable care; and
6. the defendant failed to exercise such reasonable care.

The determinative issue in this case was whether the step had a defect which presented an unreasonable risk of harm. The court held that the degree to which a potential victim may observe a danger is a factor in determining whether the condition is unreasonably dangerous, and a landowner is not liable for an injury which results from an open and obvious condition. Based on this analysis, the First Circuit held that it could not say that the jury was “clearly wrong” in finding that the step down was not a defect that presented an unreasonable risk of harm. The court affirmed the trial court judgment in favor of the church and its insurer.

Take-Away:  The plaintiff carries the burden of proving the existence of an unreasonably dangerous condition when claiming Landowner liability. When a condition is open and obvious, a jury’s determination of no liability will rarely be reversed. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A recent decision from Louisiana’s Third Circuit Court of Appeal indicates that a trial court should not grant summary judgment on the question of liability when there is an issue of comparative fault.   In Benniefiel v. Zurich American Insurance Co., the plaintiff was a customer at Stine Lumbar Company (“Stine”) in Sulphur, Louisiana.  She alleged that “as she was bending over a temporary fence around a Christmas tree exhibit, the landscape timbers gave way and she fell, thereby causing [her] damages and injuries.” The temporary barrier was built with cinder blocks and landscape timbers. The plaintiff used the temporary barrier to support her weight while apparently trying to reach some “paper” on the other side of the barrier and may have bumped it with parts of her body. This lawsuit was filed against Stine and its insurer in the 14^th Judicial District Court for the Parish of Calcasieu. The plaintiff alleged that the temporary barrier was unsafe and/or improperly secured and that there was insufficient warning of the danger.      

After the case was tried to a defense verdict, the plaintiff moved for a judgment notwithstanding the verdict (JNOV) and, alternatively, a new trial. The trial court Judge, G. Michael Canaday, denied the JNOV but granted the plaintiff’s motion for new trial. Approximately a year later, the plaintiff moved for partial summary judgment on the issue of liability (pdf) which was then granted by the trial court.  This ruling was based on the court’s finding that the defendants’ expert’s opinions on the adequacy of the temporary barrier’s configuration were unreliable. The Louisiana Third Circuit Court of Appeal reversed, holding that there clearly existed a genuine issue of material fact on the issue of comparative fault which was not appropriately resolved via summary judgment.  For example, the Court of Appeal pointed out at least two means to reach the “paper” that didn’t involve touching the temporary barrier, and it indicated that a fact finder could assess fault to the plaintiff for merely putting her hand on a cinder block portion of the temporary barrier for support during her maneuver.

Take-Away: Summary judgment in favor of a plaintiff on the issue of liability is not appropriate especially where there is any possibility of comparative fault on the part of the plaintiff in bringing about her own injuries. Here, the fact that the customer deliberately came into contact with a temporary barrier that was not meant to be used for support and the fact that there were other means to have avoided the injury meant that the case must go to the jury for a proper assessment of liability.   This case re-affirms that the proper role of summary judgment is as a “shield” when claims lack evidentiary support and that it should rarely be employed as a “sword” to remove liability issues from consideration before trial. 

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The importance of clear and unambiguous lease terms and properly documenting a pre-lease property inspection was recently demonstrated in Greely v. OAG Properties, LLC. A year after taking possession of his apartment, a tenant tripped over a two inch tall sapling stump in his backyard and fell and struck his head. The tenant sued his landlord claiming that the stump was an “unreasonably dangerous condition” (pdf) and that the concrete slab he hit also presented a hazardous condition.

The landlord filed a motion for summary judgment on the basis that the stump was an open and obvious condition (pdf) and attached a copy of property inspection report and the lease. According to the property inspection report, the tenant had inspected the property, including the yard, and accepted the condition of the property (pdf). The lease also provided, in relevant part, that the tenant was solely responsible for keeping the premises in “good and sanitary condition and repair” (pdf) and that the lessee would indemnify and defend the lessor from any claims for damage or injury arising from the condition of the property.  In further support of the motion, the landlord attached an affidavit from its property manager in which he stated that he had personally pruned the saplings and cleared the backyard of all leaves and debris a month before the lease was signed. In addition, the property manager stated that he sprayed a weed killer in the area around the stumps that killed all of the groundcover in the area thereby making the stumps obvious. 

The tenant opposed the motion for summary judgment, arguing that the landlord had promised to clean the yard and that he didn’t know that the stump was there because it was hidden by leaves. The trial court granted summary judgment in favor of the landlord and the tenant appealed.

In affirming the trial court’s ruling, the Louisiana Second Circuit Court of Appeal specifically noted that, according to Louisiana law, a landlord will not be liable for an injury caused by a condition that should have been observed by a reasonably prudent person or was just as obvious to a visitor as it was to the landlord. Moreover, the court observed that societal expectations do not include an expectation that residential yards be kept in perfect condition or include lawns that are “table top” smooth. The appellate court also found no reason to avoid the contractual shifting of liability to the tenant for the injury caused by the condition of the property. The appellate court, however, ultimately affirmed the trial court’s ruling on the simple finding that the landlord’s documents established that the tenant had inspected the property and accepted its condition more than a year before the accident. In the court’s opinion, the allegedly dangerous condition was either known or knowable to the tenant in the year before the accident. Moreover, since the tenant was responsible for maintaining the property and the stumps were allegedly covered by leaves at the time of the accident, the court found that the accident was attributable to the tenant’s own negligence and failure to properly maintain the premises.   

Take-Away: While the landlord might have prevailed simply on the basis of the language in its lease that shifted responsibility to the tenant, this case demonstrates the value of performing and properly documenting pre-lease inspections and in using clear and unambiguous lease forms that include such things as tenant acknowledgements regarding the condition of the property.

• Email This
• Print
• Comments
• Trackbacks
• Share Link