Commonly a "Shield" - Rarely a "Sword": Summary Judgment on Store's Liability Reversed Where Issue of Material Fact Exists
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 14th 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.
