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.