One Too Many Mudslides? Daiquiris Patron's Knowledge of Steep Step Leading to Restroom Does Not Necessarily Bar Her Ability to Recover Against Daiquiri Shop

While driving through Metairie one evening, Lenai Boye and her husband stopped at a local Daiquiris & Creams. While Mr. Boye ordered a drink, Ms. Boye went to the ladies’ room. There was a step at the threshold of the restroom, which Ms. Boye successfully navigated when she entered the facility. However, when she exited the restroom, Ms. Boye missed the step and fell, injuring her chin, jaw, and neck, and breaking her wrist.

Ms. Boye filed suit against Daiquiris for damages – Boye v. Daiquiris & Creams No. 3., Inc. In response, Daiquiris sought dismissal of the case via summary judgment, arguing that Ms. Boye could not recover as a matter of law because she had actual knowledge of the alleged dangerous condition – the step leading to the restroom – prior to the incident. This knowledge, according to Daiquiris, precluded Ms. Boye from claiming that the step presented an unreasonable risk of harm.  Daiquiris also asserted that it had taken various safety measures to warn customers of the step, including posting “step up” and “step down” signs, putting lights in the area, and putting reflective tape on the steps. These facts were contested by Ms. Boye who presented contradictory testimony indicating that none of those measures was in effect at the time of her fall. After a hearing on the matter, the trial court granted summary judgment and dismissed Ms. Boye’s lawsuit. Ms. Boye appealed that decision.

On review, the court of appeals considered Ms. Boye’s claims pursuant to Louisiana Civil Code Articles 2317.1 and 2322.  Louisiana Civil Code article 2322 provides that a building owner may be liable for damage caused by a vice or defect in the building only if (1) he knew about the defect, (2) he could have prevented the damage by using reasonable care, and (3) he failed to exercise such care. The appellate court noted that a condition in the building will be considered a defect only if it poses an unreasonable risk of harm. When determining whether a complained of condition presents an unreasonable risk of harm, courts weigh a variety of factors, including: (1) the claims and interests of the parties; (2) the probability that the risk will occur; (3) the severity of the consequences; (4) the burden of adequate precautions; (5) the individual and societal rights and obligations and stake; and (6) the social utility involved.  Applying this analysis, the appellate court noted that the trial court only considered the issue of whether Ms. Boye’s safe entrance into the restroom precludes her claim and failed to consider other material facts relevant to a finding of unreasonable risk of harm. The appellate court then found that all of the facts and circumstances that bear upon liability, including lighting, signage, the utility and condition of the step at the time of the fall, were disputed and needed to be resolved at trial. Accordingly, the appellate court reversed the trial court’s grant of summary judgment and sent the case back to the trial court for further proceedings.

Take-away: The mere fact that a person injured on the premises was aware of an allegedly dangerous condition prior to the incident does not, in and of itself, preclude the person from recovering against the building owner. All of the facts and circumstances surrounding the incident must be considered in determining whether risks are unreasonable.

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

Murder at Big Dawg's Lounge: Owner/Lessor Owes No Duty to Protect Victim from Criminal Act of Unknown Assailant

Eric Patterson was a security guard at Big Dawg’s lounge located in Gretna, Louisiana. On April 23, 2007, Eric was shot several times by an unknown assailant while standing in the parking lot in front of the lounge. Eric’s father filed a wrongful death action against, among others, the owners / lessors of the building in Patterson v. DeMatteo. Mr. Patterson alleged that the building owners were negligent in failing to recognize the foreseeability of criminal activity on the premises, failing to have an adequate security plan for dealing with the criminal activity and failing to have proper regard for the safety of others. The building owners filed a Motion for Summary Judgment on the ground that they owed no duty to protect Eric from the criminal acts of an unknown assailant.

In support of the Motion for Summary Judgment, the building owners introduced the following undisputed evidence: (1) Eric was shot by an unknown assailant, (2) the premise was leased to the bar owner at the time of the shooting and the building owners had no involvement in the operation of the bar, and (3) neither the building owners nor any of their employees or agents were present at the time of the shooting. In opposition to the motion, Mr. Patterson introduced the report of an expert in the areas of forensic criminology and security that outlined crime reports for the area where the bar was located and surrounding areas. Based on this evidence, Mr. Patterson’s expert concluded that the building owners had a duty to monitor criminal activity in the area and provide subsequent security measures. The trial court agreed that the building owners had no duty to prevent the actions of an unknown assailant and granted their motion for summary judgment.

The appellate court affirmed the judgment of the trial court. In reaching its decision, the appellate court, citing Harris v. Pizza Hut of Louisiana, Inc. noted that generally there is no duty to protect others from the criminal activities of third persons. Rather, the duty to protect others from a criminal act arises only under the limited circumstances where the act is reasonably foreseeable to the business owner or when there is a voluntary assumption of the duty to provide protection. Applying these principles of law to the facts at hand, the court found that under the circumstances of the case: i.e., defendants were not the owners of the business, only the owners of the immovable property; defendants were not involved in any aspect of the business; they did not assume any liability of the actions of the business owners; and, they did not undertake or assume the duty to provide protection or security, defendants owed no duty to protect the patrons of the business from the criminal act of unknown assailant.

Take-Away: Premise owners / lessors who have no ownership or control of a business operating in their property generally will not be held responsible for the criminal activities of third persons.