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

Lori Jackson’s roof was damaged in Hurricane Katrina, causing water to leak into her kitchen. Ms. Jackson did not have the roof repaired or inspected by a professional. She also did not request that her insurer send a roofer to secure her roof with a tarp. Approximately a month later, with Hurricane Rita threatening southeast Louisiana, Ms. Jackson asked her boyfriend, Melvin Millien, to place a tarp over the damaged portion of her roof to prevent more water from leaking into her house. Mr. Millien regularly performed his own home maintenance and occasionally helped Ms. Jackson with her home repair, but he was not a professional roofer and had no expertise in the area of roofing. Despite his lack of expertise, Mr. Millien secured the tarp to Ms. Jackson’s roof. As he was attempting to climb down from the roof, he slipped on a loose shingle and fell to the concrete slab below. As a result of the fall, Mr. Millien suffered a fractured leg and a smashed heel, which injuries required surgery and physical therapy to repair. Mr. Millien sued Ms. Jackson and her homeowner’s insurer. 

It was established at trial that Mr. Millien slipped on a loose shingle located near the edge of the roof. Mr. Millien testified that the errant shingle was not located in the area of the roof onto which he had affixed the tarp. He further testified that he did not know the signs of wear and tear on a roof, nor did he know the extent of the damage to Ms. Jackson’s roof, and that he could not tell that the shingle was loose before he slipped. 

The trial court awarded Mr. Millien $62,500.00 plus legal interest, applicable medical expenses, and costs. 25% of fault was apportioned to Mr. Millien, while defendants were found to be 75% at fault. Defendants appealed, arguing that any potential danger on Ms. Jackson’s roof was “obvious, universally known, and easily avoidable” and that the roof did not therefore present an unreasonable risk of harm. The Louisiana Fifth Circuit Court of Appeal affirmed. 

The appellate court noted that a landowner has a duty to discover any unreasonably dangerous conditions, and to either correct the condition or warn of its existence. Generally, a landowner has no duty to protect against an open and obvious danger. If the condition complained of should be obvious to all, the condition is not unreasonably dangerous. There is, however, no fixed rule for determining whether a thing presents an unreasonable risk of harm. Many factors are considered and weighed, including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; (6) the social utility involved; and (7) the degree to which a potential victim can observe the risk.

In Millien v. Jackson, the Fifth Circuit agreed with the trial court that Ms. Jackson’s roof posed an unreasonable risk. By Ms. Jackson’s own admission, the roof was damaged following Hurricane Katrina and she failed to have it repaired. She also failed to inform Mr. Millien that she had not performed routine maintenance on her roof or that the roof had not been inspected by a professional. And Ms. Jackson did not request that her insurer send a professional roofer to place the tarp on her roof. The Court found that the probability of harm occurring in such a case was relatively high because the roof was already damaged when Mr. Millien placed the tarp. The Court also found that the potential gravity of harm was high because of the roof was more than twelve feet off the ground. But most importantly, the Court found that the social utility of Mr. Millien’s actions was high because he agreed to assist Ms. Jackson in preserving her property under difficult conditions, despite the fact that he was under no legal obligation to do so. The significance of Mr. Millien’s conduct was substantial – by affixing the tarp on Ms. Jackson’s hurricane-damaged roof to prevent further damage from a second hurricane, he attempted to protect the property of an individual with no other recourse. 

Take-Away: The social utility of a plaintiff’s actions is an important factor in determining whether he should be granted a right of recorvery for injuries suffered from a defective condition. 

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

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On July 8, 2005, Deidre Morales and her husband, Brian Morales, visited the Boomtown Casino in Harvey, Louisiana. While playing a nickel slot machine, Ms. Morales won the jackpot. Either Ronette Thompson or her boyfriend, who were at the casino with Ms. Thompson’s mother and father, had played the same nickel slot machine before Ms. Morales hit the jackpot. As she was waiting for the attendant to arrive to pay her, Ms. Morales was confronted by Ms. Thompson and an argument began. 

After the slot machine attendant, Aja Washington, arrived to make payment, Ms. Morales reportedly asked Ms. Washington to call security or to tell Ms. Thompson to “shut up.” Ms. Washington told Ms. Morales to ignore Ms. Thompson and moved Ms. Morales into the aisle. At this point, a fight began between Ms. Morales, Ms. Thompson, and Ms. Thompson’s father – Stewart Thompson. Security immediately reported to the scene of the fight, broke it up, and called the police.      

The Morales' filed suit against Boomtown, Ms. Thompson, and Mr. Thompson. They claimed, in relevant part, that Boomtown was responsible for Ms. Morales’ damages because: (1) the slot machine attendant, Ms. Washington, did not prevent the fight from occurring; (2) Ms. Washington did not evaluate the risk to Ms. Morales; and, (3) Boomtown’s surveillance and security teams did not prevent the fight. Boomtown responded by filing a Motion for Summary Judgment. Boomtown argued that it did not have a legal duty to prevent the “unexpected and spontaneous criminal acts” of the Thompson’s and that it acted reasonably by providing security to protect Ms. Morales. The Morales countered that the fight was reasonably foreseeable and that Ms. Washington should have called security when asked by Ms. Morales.   

After the judge heard the arguments of each side and reviewed the videotape of the incident at Boomtown, he ruled in favor of Boomtown and dismissed the Morales’ suit. The Morales appealed, arguing that there were genuine issues of material fact that prevented summary judgment, including whether the fight was reasonably foreseeable, whether the attendant should have recognized the danger and called security, and whether the Boomtown employees were properly trained to prevent the attack. 

On review, the Louisiana Court of Appeal for the Fifth Circuit upheld the trial court’s dismissal of the Morales’ suit. The Court reasoned that, generally, businesses do not have a duty to protect patrons from criminal activity of others, but are under an obligation to protect patrons when the criminal acts are reasonably foreseeable. The predictability and severity of the risk determines the duty owed by the business owner. The appellate court agreed that Boomtown did not have a duty to protect Ms. Morales, because the Morales’ failed to produce evidence to prove that the fight was reasonably foreseeable   

In fact, there was a two to three minute span of time between the slot machine attendant’s arrival and the fight. Even Ms. Morales testified that she did not know that Ms. Thomson was going to touch her until she approached her and pushed her. She also testified that she asked the attendant to call security or to tell Ms. Thompson to “shut up.” In response, the attendant moved Ms. Morales into the aisle and told her to ignore Ms. Thompson. The attendant confirmed that she also had no reason to expect that a physical fight would occur and security arrived on the scene within seconds.      

Take-Away: Business owners must take reasonable steps to protect their patrons from reasonably foreseeable injuries or physical altercations, but are not guarantors of safety in unpredictable situations.

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

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