Circle K Wins Battle Over Undisturbed Stream of Water

On a rainy day in August, Vickie Buchanan slipped and fell on water at the Circle K store located on Howard Avenue in New Orleans, Louisiana. The source of water on which she fell was a one inch wide stream flowing from a cooler that stood near the entrance to the store. A warning cone had been placed near the entrance since it had been raining that day.

Because this case involved an alleged defect in the premises that produced a hazardous condition – as opposed to just a spill of liquid – Ms. Buchanan had two theories for recovery against Circle K: negligence and strict liability. While each theory of recovery has its own set of evidentiary requirements, both claims need evidence that a property owner had actual or constructive notice of the alleged water. In other words, Ms. Buchanan was required to present evidence that the Circle K employees actually knew that the water was on the floor or that the water was on the floor for a long enough time such that the Circle K employees should have discovered it in the exercise of reasonable care. A failure to produce evidence of either is fatal to Ms. Buchanan’s claims against Circle K.

According to Circle K, its employees inspected the store equipment on a daily basis, and its employees were trained to watch for hazards within the store. Circle K’s maintenance records indicated that there were no prior problems with the cooler in the days leading up to and on the day of the accident. Furthermore, Ms. Buchanan testified at her deposition that the stream of water appeared “undisturbed” and that she did not know how long it has been on the floor. Following the plaintiff’s deposition, Circle K filed a motion for summary judgment arguing that Ms. Buchanan could not establish liability since she had no evidence that Circle K knew or should have known of the water prior to the subject accident. In opposition, Ms. Buchanan failed to produce specific evidence that could refute or cast doubt on Circle K’s arguments. Accordingly, the court determined that because Ms. Buchanan would not be able to meet her burden of proof at trial, there was no genuine issue for trial and it dismissed her case against Circle K.

Take-Away: Regardless of whether a plaintiff brings a negligence or strict liability claim, there is no liability without evidence of actual or constructive notice of an unreasonably dangerous condition.

This article was authored by Lizzi Richard Showalter, an associate at Irwin Fritchie Urquhart & Moore. 

Taking the Guesswork Out of Proving Constructive Notice

On the night of April 5, 2012, Royanne Davis slipped and fell on a kitty-litter-type substance in the parking lot of the Spur and Deli gas station in Belle Chasse, Louisiana. Ms. Davis sued Cheema One, Inc. (“Cheema”), the owner of the gas station, alleging that it failed to properly maintain the premises, failed to discover and correct an unsafe condition on the premises, failed to exercise reasonable care to prevent unsafe conditions on the premises, and failed to warn her of the unsafe conditions. To prove her claim under Louisiana law, Ms. Davis first must show that an unreasonably dangerous condition existed in the Spur and Deli parking lot, and then she must present evidence that Cheema either created that condition, knew that the condition existed (i.e., actual notice), or should have known that the condition existed (i.e., constructive notice).

Following discovery, Cheema filed a motion for summary judgment asking the trial court to dismiss Ms. Davis’s claim. While Cheema admitted that a kitty-litter-type substance was in its parking lot on the night of Ms. Davis’s fall, Cheema nevertheless argued that the plaintiff had no evidence that it put it there or that Cheema had actual or constructive notice of its presence. Ms. Davis opposed the motion on two bases: (1) she argued that Cheema employees had constructive notice of the kitty-litter-type substance, and (2) she argued that the Cheema employees put the kitty-litter-type substance in the parking lot.

The court determined that Ms. Davis failed to prove constructive notice because she had no evidence that the kitty-litter-type substance was on the ground for such a period of time prior to her fall that Cheema employees would have discovered it had they exercised reasonable care. Her reliance on possibilities and speculative inferences about how long the kitty-litter-type substance was in the parking lot was not enough to meet her burden of proof.

Nevertheless, the court held that there was a genuine issue of material fact as to whether Cheema employees put the kitty-litter-type substance in the parking lot. Cheema did not contest Ms. Davis’s argument that kitty litter is generally used by gas stations to soak up fluid spills. Moreover, while Cheema produced a female employee who insisted she was the only employee on duty that night, Ms. Davis testified that she was assisted by a male cashier. Thus, Ms. Davis presented enough evidence to create a genuine issue of material fact as to whether Cheema created the condition. Ms. Davis was permitted to pursue her claim on this basis only.

Take-Away: Speculation is not enough for a constructive notice claim. There must be affirmative proof that an unreasonably dangerous condition existed for a certain period of time prior to the accident.

This article was co-authored by Lizzi Richard Showalter, an associate at Irwin Fritchie Urquhart &Moore LLC.

Slip Sliding Away: Customer's Conflicting Testimony and Lack of Evidence Torpedoes Her Slip and Fall Claim

Gail Baudy filed suit to recover damages from a broken right arm and radial neck fracture she sustained when she fell at a Winn-Dixie store as she was stepping off of the sidewalk and curb onto the driveway of the shopping center. Mrs. Baudy alleged that the slope in the driveway caused her ankle to roll as she stepped off of the curb onto the driveway. She further claimed that the sloped driveway created a dangerous condition, for which Winn Dixie was liable due to its failure to prevent the condition from causing injury, and that the store failed to warn of the dangerous condition.  

At trial, Mrs. Baudy testified that she shopped at the involved Winn-Dixie store two to three times a week prior to her fall. On the day of her fall, she was walking towards the store on the sidewalk and noticed a crowd forming around a table of girls selling Girl Scout cookies on the sidewalk near the entrance to the store. In an effort to avoid the crowd, she stepped off of the sidewalk/curb and onto the driveway. Although Mrs. Baudy claimed that the driveway appeared to be level and not sloped, when she stepped onto the driveway the slope of the driveway caused her ankle to roll and she fell to the ground.   This testimony conflicted with her prior deposition testimony wherein she stated that the unevenness of the curb caused her to fall. 

At trial, Winn-Dixie’s expert testified that the maximum allowable height for a curb is seven inches, and that the curb in the area where Mrs. Baudy she fell measured below that limit. He also testified that the sidewalk in the driveway measured within code limits for slope. And, he explained that when he inspected the area he did not find any uneven surfaces in the area of Mrs. Baudy’s fall or any other unreasonable dangerous condition. Based on the evidence presented at trial, the court found that Mrs. Baudy failed to present any evidence of a defect or other unreasonable risk of harm. The court also observed that the slope of the driveway was open and obvious. 

On appeal, the court noted that Mrs. Baudy sought to establish liability on the part of Winn-Dixie based on the existence of an unreasonably dangerous condition or defect on the defendant’s property under Louisiana Civil Code Article 2317.1 (pdf). Under that article, “[t]he owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.” The appellate court first noted that the mere fact that a pedestrian fell does not automatically render the condition of a street unreasonably dangerous, particularly where the complained about condition is open and obvious. After considering all the evidence, the appellate court found that there was no evidence of a danger upon which reasonable people could reach a contrary result and find Winn Dixie liable for Mrs. Baudy’s injuries.

Take-Away:  When a plaintiff’s testimony at trial conflicts with her earlier deposition testimony, serious issues are raised as to the plaintiff’s credibility. And, simply because a store patron falls on the premises, does not necessarily mean that the fall occurred as a result of an unreasonably dangerous condition.

No Recovery against Premise Owner/Employer Where Employee Was Not in Course and Scope of Employment at the Time She Ran Over Customer with her Vehicle in Store Parking Lot

Akeisha Dorsey was employed by RaceTrac at its convenience store. On the day of the accident she left work for a doctor’s appointment and returned to the store several hours later. Ms. Powell was at the store to purchase a propane tank. She had parked in the handicapped zone in front of the store and was standing next to her vehicle as Ms. Dorsey drove into the parking lot. Ms. Dorsey’s vehicle was approaching from the opposite side from where Ms. Powell was standing and she did not see Ms. Powell until she turned into the parking space. By that time, Ms. Dorsey was unable to avoid striking Ms. Powell with her vehicle. 

Ms. Powell filed suit against Ms. Dorsey, RaceTrac and various insurers. She claimed, among other things, that RaceTrac was vicariously liable as the store owner for the negligent acts of its employee, Ms. Dorsey. Ms. Powell also asserted that RaceTrac was liable for negligent training and supervision of its employee, and lastly, that there was a defect in the premises. 

The court first considered Ms. Powell’s claim that RaceTrac was vicariously liable for the acts of its employee, Ms. Dorsey. The court noted that a central element of this claim is proof that an employee was acting in the course and scope of her employment at the time of the accident. The court further explained that in a case where an employee has a fixed place of work, the time spent traveling to and from work is almost never considered to be in the course and scope of employment. Here, it was undisputed that Ms. Dorsey left work to see a doctor and was returning to her job when the accident occurred and that her work duties did not encompass driving to and from work. Nor was Ms. Dorsey paid for the time she was off-site. And, Ms. Dorsey’s action of leaving work for the purpose of attending a personal appointment and returning to work following the appointment was not in furtherance of the employer’s business interests. Considering these factors, the court found that there were no facts in dispute which could lead to the imposition of vicarious liability on the part of RaceTrac and, therefore, dismissal in favor of RaceTrac as to Ms. Powell’s vicarious liability claim was proper.

For the same reasons, Ms. Powell’s claim against RaceTrac for negligent training and supervision of its employee was also dismissed, because RaceTrac had no duty to train its employee regarding an act which was outside of the course and scope of her employment. 

Finally, with respect to the plaintiff’s premises liability claim, it was undisputed that there was no evidence or testimony that indicated that there were any defects in the parking area of the RaceTrac Store so those claims likewise were dismissed. 

Take-Away: The mere fact that a person is injured by an employee of a premise’s owner on the premises does not necessarily support a finding of liability on the part of the premise’s owner. In a case where the employee caused the accident, but was not in the course and scope of her employment at the time, the employer premise owner will not be found liable for the employee’s negligent acts. 

Existence of Oil Slick Alone Not Enough

On January 3, 2009, Karen Finley slipped and fell on an oil slick in the parking lot of a Racetrac convenience store in Shreveport, Louisiana. Finley sued Racetrac under La.R.S. 9:2800.6 (pdf), which requires plaintiffs to prove several elements in order to succeed on a premises liability claim. To satisfy the statute’s second element, a plaintiff must establish that the defendant created the dangerous condition, knew of it, or had constructive knowledge of it prior to the accident.

A defendant has constructive knowledge of a dangerous condition when the circumstances show that he should have known of the condition. When relying on constructive knowledge, a plaintiff must show that the dangerous condition existed for a period of time sufficient to place the defendant on notice of its existence. A plaintiff is not required to prove with eyewitness testimony that the hazardous condition existed for a certain number of minutes or hours. Instead, the court can infer from the circumstances surrounding the fall that it is more probable than not that the condition existed long enough prior to the fall for the defendant to have discovered and corrected it.

Finley alleged that Racetrac either knew or should have known of the dangerous condition the oil slick created, and she claimed her injuries would not have occurred if Racetrac had taken reasonable steps to clean up the oil. Despite Finley’s accusations, the trial court granted summary judgment in favor of Racetrac. The court found that Finley was unable to show Racetrac knew or should have known of the oil slick prior to her fall. The court also found that Finley was unable to establish the amount of time the hazardous condition had been present; and as a result, the court could not infer that Racetrac had sufficient notice of the hazard. Finley appealed the judgment of the trial court.

On appeal, in an attempt to establish the amount of time the oil slick existed prior to her fall, Finley relied on a cell phone photograph showing that the oil had begun to soak into the concrete at the time she slipped on it. She claimed the photograph showed that the oil was present for a sufficient amount of time to place Racetrac on notice of the dangerous condition. However, the appellate court disagreed with Finley and found that the photograph, which was taken after her fall, proved only that the oil slick existed. Because Finley could not prove Racetrac had constructive notice of the dangerous condition, the appellate court affirmed the trial court’s conclusion that Racetrac was entitled to summary judgment.

Take-Away:  In a slip and fall case, the mere existence of a dangerous condition is insufficient to establish liability against a premise owner where there is no evidence of how long the condition existed prior to the accident or that the premise owner knew of the condition before-hand.

This article was co-authored by Mike Boyd, a summer associate at Irwin Fritchie Urquhart & Moore LLC

A Merchant's Duty of Reasonable Care

On July 3, 2006, Charlene Williams patronized Feed Sales & Service, a retail store owned by Howard Sellers in Shreveport, Louisiana. The store had a gravel parking lot and several poured-in-place concrete steps leading to the entrance. The steps had been finished with a steel brush to prevent slickness, and the edge of each step was painted red for visibility. There were also two handrails, one on each side, cemented into the ground. Williams alleged that, as she exited the store down the steps, she tripped and fell, sustaining injuries to her arms and legs. According to Williams, her left foot required surgery as a result of the incident. Williams filed suit against the store, Sellers, and his insurer, State Farm. After a bench trial, the trial court entered judgment in favor of the defendants, noting, “[T]he plaintiff is one of the least credible witnesses that I have ever heard.” Williams appealed the trial court’s judgment.

 In order to prevail on her claim Williams had to prove that the steps did presented an unreasonable and foreseeable risk of harm pursuant to La. R.S. 9:2800.6 (pdf), known as the Claims Against Merchants statute. That statute states, in pertinent part:

 A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.

B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.

(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.

(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Failure to prove any one of the enumerated requirements is fatal to a plaintiff’s case alleging premises liability against a merchant.

Williams argued that gravel on the steps created an unreasonable risk, similar to wet paint or a hole in the ground, and that was risk was foreseeable. She further argued that Sellers had actual knowledge of the condition of the steps, because he was in charge of keeping gravel off the steps, and he failed to warn his costumers about the hazard. Williams asserted that the trial court erred in finding that she failed to carry her burden of proof under the Claims Against Merchants statute. The Second Circuit Louisiana Court of Appeal disagreed. 

The Second Circuit noted that when the trial court’s findings are based on determinations regarding credibility of witnesses, great deference is demanded. The trial court found that Williams was not a credible witness, and the record noted several inconsistencies in her testimony. There was a question of whether Williams tripped down the steps at all. Moreover, the Second Circuit found that Williams failed to prove that the steps posed an unreasonable risk of harm. Williams testimony was inconsistent on whether she even saw gravel on the steps, and the EMS responder testified that he examined the steps after the accident and did not notice any gravel. Sellers also testified that he routinely went up and down the steps without incident, and never had a single accident on the steps. The Second Circuit held that the trial court did not err in entering judgment for the defendants, given the conflicting testimony in the record.

Take-AwaySelf-serving statements alone are insufficient to establish an unreasonable and foreseeable risk of harm under La. R.S. 9:2800.6.

This article was co-authored by Kelly Juneau, a member of Irwin Fritchie Urquhart & Moore LLC.

Can't Blame It On The Rain

The case Billiot v. Big Wheels Travel Center demonstrates how a plaintiff needs to offer some evidence of a vice or defect in a property in order to survive a motion for summary judgment. Ms. Billiot alleged that she injured her right arm when she slipped and fell on an access ramp while walking into the Big Wheels Travel Center. In response to Ms. Billiot’s claims, Big Wheels filed a motion for summary judgment. In support of the summary judgment motion, Big Wheels submitted photographs depicting the ramp and affidavits of store employees confirming that there was nothing defective about the ramp at the time of the accident. Other than establishing that rain had fallen on the area where she slipped and fell and that the area was wet, Ms. Billiot offered no evidence of any vice or defect in the property. Given this lack of evidence, the trial court granted Big Wheel’s motion for summary judgment and in doing so noted that rain on a walkway in and of itself does not present an unreasonable harm.

Take-Away:  Rain on an access ramp or walkway in and of itself does not constitute a vice or defect. In order to avoid summary dismissal of their case, plaintiffs must come forth with some evidence that there is a problem, vice or defect in the property.