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

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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On June 17, 2009, the Louisiana Court of Appeal for the Fourth Circuit determined that employees could recover in tort against their employer for injuries alleged to have been caused by the workplace.   The case, Watters, vs. Department of Social Services, involved the now infamous Plaza Tower Office Building located at 1001 Howard Avenue in New Orleans, Louisiana that was leased almost entirely by the State of Louisiana. Following numerous media reports in the Fall of 2001 concerning the potential existence of “toxic mold” in the Plaza Tower, a class action was filed on behalf of all State employees who were assigned to work in the Plaza Tower from September 1996 to February 2002. The Plaintiffs alleged that they had complained of, among other things, water leaks, defective elevators, the presence of unknown toxic substances, and safety hazards. They further claimed that, during their occupancy of the building, they suffered excessive illnesses, including sinus and allergy problems, debilitating headaches, skin irritation, watery eyes, and fatigue. In addition to suing the building’s owner, the Plaintiffs also sued the State – their employer – on the grounds that the State had breached its duty to provide a safe work place. In response to the suit, the State sought the protections of the Louisiana Worker’s Compensation Act (pdf) and to have the matter dismissed on those grounds, arguing that the Statute shielded it from tort liability. Although the Court recognized that the duty to provide a safe workplace was a specific statutory provision contained within the Worker’s Compensation Act, it nonetheless concluded that the duty could also sound in tort.   Relying on its decision in Ruffin v. Poland Enterprises, L.L.C., the Court refused to apply the Worker’s Compensation bar and, instead, concluded that the clerical employees' claims against their state employer for exposure to mold in the workplace fell outside the scope of protections afforded by the Workers' Compensation Act.  The court reasoned that such exposures were not: a work related accident; an occupational disease; or, peculiar to or characteristic of clerical employment.

Take-Away: The existence of hazardous conditions in the workplace – unless the hazardous condition is associated with the general nature of the work performed– can form the basis of tort liability against employers for failing to provide a safe workplace.

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