Plaintiff's Claims Lost By Hole In Evidence

Posted on December 14, 2010 by Ed Trapolin

While waiting for her child’s school bus to arrive at the intersection of two streets in Farmville, Louisiana, Carol Smithwick stepped off of the sidewalk onto the shoulder of the road. Upon doing so, she stepped in a shallow hole in the ground and injured her ankle. After the accident, Mrs. Smithwick filed a lawsuit against the City of Farmville in Smithwick v. City of Farmville.

Mrs. Smithwick sought to recover damages pursuant to La. R.S. 9:2800 (pdf), which limits the liability of public entities for defective or dangerous premises. In order to prevail, Mrs. Smithwick had to prove the following elements: (1) custody or ownership of the defective thing by the City; (2) that the defect created an unreasonable risk of harm; (3) that the City had knowledge of the defect; (4) that the City failed to take corrective action within a reasonable time; and (5) that the defective thing caused the plaintiff’s injury.

At the trial court level, Mrs. Smithwick was not able to prove one of the essential elements of her claim: that the City had actual or constructive knowledge of the hole that caused her injury. The court dismissed the case, and Mrs. Smithwick appealed.

On appeal, the court addressed the issue of whether the city had either actual or constructive knowledge of the hole. The appellate court defined “actual knowledge” as knowledge of dangerous defects or conditions, and defined “constructive knowledge” as the existence of facts which imply actual knowledge. The court noted that constructive knowledge is ordinarily established when plaintiffs prove that the defect existed over a sufficient length of time that reasonable diligence would have led to its discovery or repair.

Ms. Smithwick first argued that the City had actual knowledge of the hole, as evidenced by the deposition testimony of a city employee who stated that he had observed a hole while trimming the grass in the area. The court pointed out, however, that the employee’s trial testimony clarified that the hole he had noticed was in a different area next to a water line, and thus was not the hole that caused Ms. Smithwick’s injury. Ms. Smithwick also argued that the City had constructive knowledge of the hole. She argued that the city personnel responsible for trimming the grass in that area must have seen the hole prior to the accident. The court reasoned that because no one knew how or when the hole was formed, it was speculative to assume that it even existed when the grass in the area was last trimmed.

After considering all of the facts, the court concluded that there was no evidence that the hole had been noticed or should have been noticed by city employees.   The appellate court ultimately held that the trial court was not clearly wrong in finding that Ms. Smithwick failed to prove that the City of Farmville had actual or constructive knowledge of the hole. Accordingly, Ms. Smithwick could not recover damages from the City of Farmville.

Take-Away:  Although a person may be injured by a defect on public property, that person will not be able to recover if there is no evidence that the public entity had knowledge or constructive knowledge of the harmful defect’s existence.

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

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Pink Slip & Fall Redux

Posted on December 6, 2010 by Ed Trapolin

On July 7, 2010, the Louisiana Supreme Court reversed the Louisiana Third Circuit Court of Appeal’s decision in Ardoin v. CLECO Power, L.L.C. The Louisiana Supreme Court noted that an employee's exclusive remedy against his employer for injuries suffered in the course and scope of his employment is provided by the Workers' Compensation Act.  Louisiana worker’s compensation law provides that compensation coverage is not automatically and instantaneously terminated by the firing or quitting of an employee.  Instead, the employee is deemed to be within the course of employment for a reasonable period of time during the winding up his affairs and leaving the premises. The question before the Court was whether Mr. Ardoin’s injuries occurred within a reasonable time of his termination.

 

The Ardoin Court found that the Third Circuit correctly applied Louisiana jurisprudence that holds that an employee who is injured during a reasonable period of time needed for winding up his affairs is considered to be within the course and scope of employment. The Ardoin Court, however, disagreed with the Third Circuit that Mr. Ardoin’s accident occurred beyond a reasonable period of time. The Court held that the relevant factors to be considered in deciding whether Ardoin’s injury occurred within a “reasonable period of time to wind up his affairs” were: (1) the purpose that prompted him to return to work; and, (2) the relationship between that purpose and the conditions surrounding his work.  Because Mr. Ardoin was on Cleco’s premises to clean out his office with Cleco’s permission, after his termination, and at a time imposed by Cleco, the court concluded that this was a reasonable amount of time. Thus, he was deemed to be within the course and scope of his broadly defined “employment” with Cleco. Accordingly, he could recover for his injuries under the Louisiana Worker’s Compensation scheme.

 

Take-Away: Whether an employee is acting within the course and scope of employment is not always clear, especially in post-termination settings, and may turn on the employer’s control over the time and manner of the winding-up of post employment activities. 

 

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

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