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

Jason Berry took part in a paintball game hosted by his adult friend Joseph Dvorak. The event took place on property owned by Joseph’s parents. Prior to the commencement of the game, Joseph did not provide any instructions or warnings to the participants about how to properly defog a paintball mask. Shortly after the game began, Mr. Berry’s mask began to fog up and in an effort to defog the mask he removed it from his face. While his mask was raised, Mr. Berry was hit in the face by a paintball, causing injury to his right eye. 

Mr. Berry subsequently filed suit against the Dvoraks and their son Joseph in the case Berry v. Lynch alleging that the Dvoraks and Joseph negligently failed to ensure that the proper safety procedures, inspections, and equipment were in place to guarantee that the paintball game was conducted in a reasonably safe manner. In response, the Dvoraks and Joseph filed motions to have the case dismissed. The Dvoraks contended that they were not liable because Mr. Berry failed to show that their conduct met the heightened standard of “recklessness,” as opposed to “simple negligence.” Joseph argued that he had no duty to warn Mr. Berry about how to properly use his safety mask because Mr. Berry, by his admission, knew that the mask was necessary for his protection. In his deposition, Mr. Berry admitted that he knew he needed eye protection to participate in a paintball game. 

The trial court granted the Dvorak’s motion for summary judgment because Mr. Berry was unable to factually support his allegation that the Dvoraks had acted recklessly. The court, however, denied Joseph’s motion on the grounds that he had a greater duty to Mr. Berry because the game was his idea. At trial, the jury entered a verdict in favor of Joseph.

On appeal, Mr. Berry argued that the trial court erred in requiring him to prove that the Dvoraks’ conduct was reckless, rather than negligent, because the relevant case law requiring reckless conduct only applied to situations where defendants were co-participants with the plaintiff in an informal recreational sport and there was no dispute that the Dvoraks did not participate in the game. The appellate court agreed that the standard of negligence, not the heightened standard of reckless conduct, applied. 

The court then addressed the issue of whether under the negligence standard the defendants owed a duty to Mr. Berry to provide him with instructions on how to properly defog his paintball mask. Under the general rule for premises liability, landowners are only liable to social guests for foreseeable injuries if: “the dangerous condition is unknown to the guest and the guest could not have discovered the danger himself; the host fails to exercise reasonable care to make the premises safe, or to warn the social guest of the danger; and the guest has no reason to know of the risk involved.” Parks v. Rogers. The court noted that Mr. Berry knew the risks of participating in paintball, was aware of the purposes of the mask, and knew that he would risk harm by taking it off. In light of these facts, the court found that the Dvoraks did not owe Mr. Berry a duty to instruct him on how to properly defog his mask and provide an explanation of the dangers of improper defogging. The court then affirmed the lower court’s grant of summary judgment in favor of the Dvoraks.

Take-Away: Under New Jersey law, a landowner’s status as a participant in a recreational activity can determine the standard of care owed to his social guests who take part in that activity. In addition, a landowner does not owe a duty to his guests to warn them of risks of which they are aware and which are inherent in the involved activity.  The comparable Louisiana State laws that protect landowners from recreational use of their property  are LA R.S 9:2791 (pdf) and LA R.S. 2795 (pdf). 

This article was co-authored by Jonathan Phelps, a 2011 summer associate at Irwin Fritchie Urquhart & Moore LLC.

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After shopping for a gift for her great-granddaughter’s wedding, 93-year-old Emelda Mooty tripped and fell in the parking lot of a shopping center in Harvey, Louisiana. Mrs. Mooty subsequently filed a lawsuit against the shopping center—Mooty, et al. v. Centre at Westbank LLC,. In the suit, Mrs. Mooty alleged that she tripped over an unpainted tire stop that was located in the handicapped parking portion of the parking lot, asserting that the tire stop was a “tripping hazard.”

After the plaintiffs’ depositions had been taken, the defendants filed a motion for summary judgment, claiming that there was no genuine issue of material fact, and asserting that, as a matter of law, defendants were entitled to judgment in their favor. Specifically, the defendants argued that, although Mrs. Mooty speculated that she tripped on the tire stop, she actually had no idea what caused her fall. The plaintiffs opposed the motion, arguing that defendants breached their duty to Mrs. Mooty and that issues of material fact remained unresolved. Furthermore, the plaintiffs supported their opposition with a report from an engineering and safety expert who opined that the tire stop did not conform to the requirements of the Americans with Disabilities Act (ADA). After a hearing on the motion, the trial court granted summary judgment in favor of the defendants.

On appeal, the plaintiffs argued not only that there was sufficient evidence to conclude that the defendants were liable for Mrs. Mooty’s injuries, but also that the trial court committed error by disregarding the ADA. The appellate court noted that, under Louisiana law, the potential liability of a defendant under these circumstances must be determined by a “duty-risk analysis” and that the essential first element of this analysis is causation. The court further noted that the deposition testimony of Mrs. Mooty failed to show that the tire stop was related to her fall. It pointed to specific statements in Mrs. Mooty’s deposition, such as, “I tripped on something, but I don’t know what it is.” The court concluded that because plaintiffs failed to prove the element of causation, the issue of whether the tire stop complied with the ADA requirements was irrelevant. The court ultimately affirmed the trial court’s grant of summary judgment and dismissed the plaintiffs’ case.

Take-Away: Even if a potential plaintiff falls and is injured on a landowner’s premises, the plaintiff must be able to establish what exactly caused the fall in order to succeed on a claim against the landowner. If the plaintiff cannot prove that element of the claim, the landowner will be entitled to judgment as a matter of law. 

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

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In Fluence v. Marshall Bros. Lincoln-Mercury Inc., Larry Fluence, a worker who was part of a paving crew that was pouring asphalt pavement at the Marshall Brothers car dealership’s lot, fell into an open manhole and severely injured his back. Mr. Fluence sued the property owner, Marshall Brothers, and the subcontractor that installed the underground drainage system and left the manhole cover off, Labiche Plumbing Inc. (Labiche). 

Both Marshall Brothers and Labiche moved for summary judgment on the grounds that (1) they did not breach a duty to Mr. Fluence and (2) the open manhole did not present an unreasonable risk of harm. It was undisputed that Mr. Fluence was part of a crew that was hired to pave around the new drainage system, including the manhole, and that he had inspected the property on the morning of the accident and was aware of the open manhole. Moreover, the manhole was clearly visible from 20 feet away. Given these facts, Marshall Brothers and Labiche argued that the manhole was open and obvious and did not present an unreasonably dangerous condition to Mr. Fluence. In response, Mr. Fluence contended that he forgot about the hole later in the day when he was walking backwards in the parking lot and “smoothing off” the asphalt. And, although he should bear some fault for his carelessness, fault should also be assigned to Marshall and Labiche. The trial court disagreed and granted summary judgment in favor of Marshal Brothers and Labiche.

On appeal, Mr. Fluence argued that Marshall Brothers breached a duty to protect him or to warn him of a known dangerous condition while he was on the property. He further argued that Labiche had a duty to warn him of the condition, replace the manhole cover, or place a barrier to prevent people from getting near the hole. The appellate court noted that although a landowner owes a duty to people entering its premises to discover unreasonably dangerous conditions and to either repair them or warn of their existence, there is no duty to warn of an open and obvious condition. Quoting Louisiana case law, the court stated that whether a condition is unreasonably dangerous is determined by considering: “(1) the utility of the complained-of condition; (2) the likelihood and magnitude of the harm (which includes the obviousness and apparentness of the harm); and (3) the nature of the plaintiff’s activities in terms of its social utility or whether it is dangerous in nature.” Finding that Mr. Fluence admitted knowing of the open manhole prior to the accident and that his job entailed patching the holes up to and around the open manhole, the court held that Marshall Brothers and Labiche owed no duty to repair the condition or warn Mr. Fluence  about the open and obvious condition. Accordingly, the appellate court affirmed the trial court’s ruling.

Take-Away: Property owners who hire workmen to perform work and repairs on their property may avoid liability for injuries suffered by the workmen if the injury results from an open and obvious condition, especially when the workmen acknowledge that they were aware of the condition before the accident occurred.

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The case Falcon v. Louisiana Dept. of Transportation arises out of a motor vehicle accident involving a mother and her three children. On the day of the accident the mother was driving her vehicle with her three minor children as passengers. When she approached a T-shaped intersection, she allegedly ran a stop sign and then after attempting to turn left her vehicle was broadsided by a truck traveling on the intersecting highway. Although her children only sustained minor injuries, she suffered a severe closed head injury, which ultimately required that she be legally interdicted under the curatorship of her father “Plaintiff”. 

Plaintiff filed a personal injury action on behalf of his daughter and her three children alleging that defendants’ placement of a large billboard at an intersection of two roads constituted an unreasonably dangerous condition to motorists. Named as defendants were the State of Louisiana, through the Department of Transportation and Development (“DOTD”), the owner of the land on which sign was erected and its insurer, as well as the owners of the sign and their insurers. The billboard in question measured sixteen (16) feet in width by approximately eight (8) feet in height and was alleged to have extended two feet into the State's right-of-way along La. Hwy. 1 in violation of La. R.S. 48:461.2. This statute provides, in part:

No outdoor advertising shall be erected or maintained within six hundred sixty feet of the nearest edge of the right of way and visible from the main traveled way of the interstate or primary highways in this state....

The defendants filed a motion for summary judgment asserting that the entire lawsuit should be dismissed because the placement of the billboard did not present an unreasonably dangerous condition to motorists and because the mother failed to act as a reasonable motorist. The trial court granted summary judgment as to the landowner, its insurer and the DOTD, but denied the motion as to owners of the sign and their insurers. With respect to those entities, the court found that there existed a genuine issue of material fact as to whether the billboard contributed to the accident. Plaintiff appealed the trial court’s dismissal of the landowner, its insurer and the DOTD on the basis that it was not appropriate to rule as a matter of law that an uncontested sight obstruction did not constitute an unreasonably dangerous condition. The only issues before the appellate court were whether there were genuine issues of material fact (1) as to whether the billboard presented an unreasonably dangerous condition and (2) as to whether the mother failed to act as a reasonably prudent motorist under the circumstances.

The appellate court first considered the issue of whether the billboard presented an unreasonably dangerous condition. The court noted that it was undisputed that at a certain point along the highway, the placement of the billboard obstructed the view of motorists. Thus, the only issue was whether the obstruction was sufficient to constitute an unreasonably dangerous condition. Finding that this inquiry was inherently a factual determination, the appellate court reversed the finding of the trial court and held that there were genuine issues of fact as to whether the billboard obscured the view of the mother thereby creating an unreasonable risk of harm.

The court next addressed the issue of whether the mother failed to act as a reasonably prudent motorist under the circumstances. Defendants argued that to defeat summary judgment Plaintiff had to overcome two separate presumptions: (1) that a left-turning motorist involved in a collision that occurs across the center line is at fault in causing the accident; and (2) that a motorist who runs a stop sign resulting in a collision is similarly at fault in causing the accident. Plaintiffs countered that there were factual disputes with respect to each contention put forth by defendants. First, the other driver in the accident testified that he did not know which direction the mother intended to travel and the investigating officer refused to state that she was definitively attempting to execute a left-hand turn. Second, one of the mother's daughters, who was a passenger in vehicle, testified that just prior to the accident her mother stopped at the stop sign. Lastly, Plaintiffs contended that it was the placement of the billboard that caused the accident – not the mother’s alleged failure to act in a reasonably prudent manner. The appellate court found that these issues of fact were sufficient to defeat defendants’ summary judgment motion and reversed the ruling of the trial court.

Take Away: Courts are reluctant to uphold the dismissal of a case via summary judgment when there are arguable issues of material fact as to the events and circumstances surrounding an accident, especially where a plaintiff has sustained catastrophic injuries.

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

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Take-Away: Under the LPLA, the reasonably anticipated use of a product is analyzed from the manufacturer’s perspective at the time of its manufacture rather than every conceivable foreseeable use of a product in hindsight. 

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Over two years after Hibernia National Bank opened a branch in New Orleans East in 1996, Esther Lingoni tripped over a landscape sprinkler head located at the intersection of two sidewalks and was injured. Ms. Ligoni sued Hibernia and its insurer, St. Paul Fire and Marine Insurance Company, its architect for the project, Sizeler Architects, Inc. (Sizeler), the project landscape architect, Daly-Sublette Landscape Design & Development, Inc. (Daly-Sublette), the general contractor, Shamrock Construction Co., Inc. (Shamrock), and the landscape contractor, Paradise Gardens Landscaping, Inc. (Paradise). Ms. Ligoni argued that the defendants were liable to her because the sprinkler head was located too close to the sidewalk and posed an unreasonable risk of harm. Ms. Ligoni settled with Hibernia and its insurer. The other defendants moved for summary judgment under Louisiana Code of Civil Procedure article 966 (pdf). 

The design professionals, Sizeler and Daly-Sublette, argued that Ms. Ligoni did not have an expert who would testify regarding the professional standards of architects or landscape architects. Therefore, she did not have any evidence that they breached a duty owed to Ms. Ligoni. Additionally, they argued that her only expert was a safety expert whose only document was that her trip and fall was probably caused by a defective sprinkler “pop-up head” that was in the up position when the accident occurred. 

For their part, the contractors, Shamrock and Paradise, argued they were immune from liability under Louisiana Revised Statute 9§2771 (pdf) because they followed plans and specifications provided to them by a third-party. Under that statute, a contractor cannot be liable for damage or destruction caused by following plans and specifications provided to it by a third-party. A contractor, however, may not be shielded from liability if the plans and specifications are obviously defective and a reasonable contractor would know that following the plans and specifications would result in an unsafe or substandard condition. The trial court granted the motions and dismissed Ms. Ligoni’s claims.

On appeal, Ms. Ligoni argued that the trial court erred in granting summary judgment because a genuine issue of material fact existed regarding whether the plans and specifications were properly prepared and whether the installation of the sprinkler system was in compliance with the plans and specifications. Additionally, Ms. Ligoni argued that expert testimony was not required in a case where common sense would dictate whether the sprinkler head was too close to the sidewalk and presented a tripping hazard. 

In affirming the dismissal, the appellate court noted that both of the contractors presented evidence that neither of them played any part in the preparation of the plans and specifications for the project and that they each had complied with the plans and specifications provided to them.  Moreover, there was no evidence that the plans and specifications were defective or that compliance with them created a dangerous condition. In addition, because the accident occurred two years after installation, after project approval, after the expiration of project warranties, and while another company was maintaining the premises, there was no evidence that the condition that allegedly caused the accident was the same that existed when the project was completed. Therefore, the district court did not err in finding that the contractor defendants met their burden or persuasion and that the plaintiff did not present evidence to rebut the strong showing made by them. 

As to the design professionals, Sizeler and Daley-Sublette, the appellate court also affirmed the summary judgment as to them, because Ms. Ligoni had no evidence that either of them had breached a professional duty or that their services fell below the local standard of care for similar professionals. Critically, the appellate court agreed with the district court that she failed to present credible evidence in support of her case. In fact, her own expert was of the opinion that her accident was, more likely than not, caused by a defective or broken sprinkler head that was in the up position. Her expert, although not a design professional, did not suggest that the location of the sprinkler was improper or that the location was the cause the accident. Accordingly, the appellate court found no error in the district court’s ruling.

Take-Away: Contractors may be shielded from liability for slip and fall claims when they follow plans and specifications provided to them by a third party and the plans and specifications themselves are not obviously defective or a contractor should know that strict adherence would create an unreasonably dangerous condition.

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Lena Gregory was shopping at a Brookshire grocery store in Farmerville, Louisiana, when she slipped on a clear substance on the floor. At the time Mrs. Gregory fell, Brookshire employees were working to clean other areas of the store where a child had thrown up minutes before. The child had gotten sick at the front of aisle 13 and in other parts of the store. When employees found out that the child had gotten sick, they began cleaning the dirty areas. One employee stood guard at the front of aisle 13. Mrs. Gregory saw vomit in a few places and was careful to avoid those areas while she shopped. She cautiously walked to the back of aisle 13, where she suddenly slipped and fell on a clear substance spilled on the floor. Nobody knew what the substance was, how it got on the floor, how long it had been there, or whether it was related to the sick child.

Mrs. Gregory sued Brookshire under the Louisiana slip and fall statute (pdf). To succeed with her suit, Gregory v. Brookshire Grocery Company, Mrs. Gregory had to prove that: (1) the clear substance created an unreasonable, foreseeable risk of harm; (2) Brookshire knew or should have known about the clear substance that spilled; and, (3) Brookshire did not demonstrate reasonable care in cleaning up that spill.

Because there was no evidence that Brookshire had actual notice of that particular mess, Mrs. Gregory had to establish that the store had constructive notice of it. To do that, she needed to prove that the clear substance had been there for enough time before she fell that the store should have found the spill if it had exercised reasonable care. The trial court rejected Mrs. Gregory’s claims, holding that she did not prove that the grocery store should have known about the clear substance on which she slipped.

Mrs. Gregory appealed, arguing that Brookshire did not have formal safety procedures in place when she fell. She also argued that the store was not reasonably careful, because it did not have a written or verbal cleanup policy and because store employees may not have checked all the aisles for spills on the day she fell. After reviewing the case, the court of appeal affirmed the trial court’s decision.  

Primarily, she did not prove that the store lacked an effective cleanup plan, especially since the positive evidence established that the employees immediately began cleaning after they heard about the sick child. The appellate court also held that Mrs. Gregory could not prove that the store had notice of the spill or that it acted unreasonably on the day in question. There was no evidence that Brookshire had actual or constructive notice of the clear substance on which she slipped. Although store employees knew about the child getting sick, nothing showed that the clear substance was at all related to that child. Although the store was aware of one hazard on the premises but not about the particular spill on which Mrs. Gregory slipped. More importantly, nobody knew how long the substance had been there, which was crucial for proving constructive notice. 

Take-Away: The best defense to a slip and fall claim is adequate policies to address dangerous conditions as they occur or are discovered. Moreover, knowledge of one dangerous condition will not necessarily put a merchant on notice of all possible hazards on the premises.

This article was co-authored by Ali Spindler, a 2010 summer associate, at Irwin Fritchie Urquhart & Moore LLC. 

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Eighty-two year old Mildred Watts was a regular patron at The Country Place Restaurant in Minden, Louisiana. She often entered the restaurant by walking on two circular stones in a flower bed positioned in between the parking lot and the restaurant entrance. On October 1, 2006, she became the first person to trip on a metal strip bordering the flower bed.  When she fell she sustained serious injuries to her mouth and teeth.

Ms. Watts filed suit against the restaurant and its insurer, Scottsdale Insurance Company, arguing that the metal strip posed an unreasonable risk of harm and that defendants were liable for her injuries. The trial and appellate courts disagreed and found that the condition was not unreasonably dangerous because it was open and obvious. The courts found that the restaurant did not owe a duty to Ms. Watts due to the open and obvious nature of the strip.

Both courts considered that the metal strip was about four inches tall and clearly visible to the naked eye. The restaurant manager testified that no one had tripped over or complained of the metal strip in the nine years that he worked there. The manager further stated that the stones in the flower bed were decorative, not stepping stones, and patrons were not encouraged to use it to enter the restaurant. Ms. Watts even admitted that she saw the strip on her previous visits to the restaurant, but never tripped over it. Importantly, on the day of her accident, nothing obstructed her vision of the strip.

Both courts disagreed with Ms. Watts’ argument that the sole purpose of the metal strip was to trip pedestrians and that it was difficult to see because it was a dark brown/green color among dirt and plants. Rather, the strip clearly bordered the flower bed, and the area was not a designated walkway for patrons.  The courts found that the metal strip was open and obvious and did not present an unreasonable risk of harm. Accordingly, the restaurant owed no legal duty to Ms. Watts and her claims were dismissed.

Nevertheless, Ms. Watts was not completely without a remedy. Ms. Watts recovered $5,000.00 policy limits, plus interest, from Scottsdale Insurance Company under a no-fault medical payments provision of its policy, for her medical expenses incurred as a result of her injuries.

Take-Away: A property owner does not have a duty to warn about or remove conditions that are open and obvious and, thus, do not pose an unreasonable risk of harm.

This article was co-authored by Laura Beth Graham, a 2010 summer associate at Irwin Fritchie Urquhart & Moore LLC.

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Constantino Herrera was hired by Norma Montero to cut a tree branch on her property that was tangled in an overhead cable. When Mr. Herrera cut the branch, it fell in an unexpected manner and caused both Mr. Herrera and his ladder to fall to the ground. As a result of the fall, Mr. Herrera sustained injuries and sued Ms. Montero and her homeowner’s insurer the matter Herrera v. United Fire & Casualty Company. 

In his lawsuit, Mr. Herrera alleged that Ms. Montero failed to properly maintain the tree and failed to warn him of the dangerous condition; namely, the entanglement of the tree’s branches with the cable. Ms. Montero’s insurer filed a motion for summary judgment arguing that she could have no liability to Mr. Herrera given the fact that he was hired to rectify the same open and obvious condition (i.e. the tangled branches with the cable) that he alleged constituted the breach of the her duty to him. The trial court granted the motion for summary judgment and the Louisiana Fifth Circuit Court of Appeal affirmed. 

In affirming the grant of summary judgment, the appellate court recognized that Mr. Herrera was hired to remove a branch that was visibly tangled in an overhead cable; he determined the means and methods by which he would undertake the job; and, he used his own equipment and judgment in performing the work. Ms. Montero played no part in controlling or directing his efforts. Therefore, Ms. Montero owed no duty to the tree cutter and his claims arising from the tree trimming accident were properly dismissed.  

Take-Away: A person hired to correct or eliminate an open and obvious condition cannot recover from the property owner when his injury is the result of the same open and obvious condition that he was hired to fix, rather than any act or omission of the property owner.

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