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

While leaving a co-worker’s funeral with a friend in Moreauville, Louisiana, Arlene Chambers tripped on a section of sidewalk and fell. As a result of the accident, Ms. Chambers suffered a fracture of the radius of her right arm, which required surgery. Although the surgery and subsequent physical therapy were successful, Ms. Chambers later experienced problems with her both her right and left shoulders, which she attributed to the fall due to prolonged immobility of her wrist. Ms. Chambers ultimately filed a lawsuit against the Village of Moreauville —Chambers v. Village of Moreauville.

At the trial court level, the plaintiff called a number of experts to testify, including experts in the fields of civil engineering, economics, and vocational rehabilitation. After the bench trial, the court held that the Village of Moreauville was 100% at fault and awarded damages to Ms. Chambers for past and future pain and suffering, hedonic damages, future wage loss, past medical expenses, future medical expenses, and past wage loss. The Village appealed.

On appeal, the third circuit first addressed the issue of comparative fault. It noted that pedestrians are obligated to observe their path and remain mindful that every sidewalk contains irregularities. Furthermore, it noted that a condition that is “obvious” and “easily avoidable” cannot be considered to present an unreasonable risk of harm, which is a key element in any premises liability case. The court held that although there was a reasonable basis for the trial court’s conclusion that the sidewalk presented an unreasonable risk of harm, the record did not reasonably support a finding that Ms. Chambers was entirely free from fault. In particular, the court noted Ms. Chambers’ testimony that her attention was diverted at the time of the fall due to a conversation with a friend. Thus, the appellate court allocated 10% of the fault to Ms. Chambers and 90% of the fault to the Village.

Next, the court addressed whether the trial court was manifestly erroneous in its award of damages for future wage loss and future medical expenses. With regard to the award of future lost wages, the third circuit held that there was no evidence in the record that Ms. Chambers more probably than not would lose her job due to her injuries. Thus, it held that the award of future lost wages was too speculative and was therefore manifestly erroneous. On the issue of future medical expenses, the court held that, based on the history of Ms. Chambers’ treatment and the costs associated with that treatment, the trial court’s award of $10,000 was reasonable and therefore not manifestly erroneous.

Finally, the appellate court addressed whether the trial court had abused its discretion in awarding Ms. Chambers general and hedonic damages, which consisted of $200,000 for past and future pain and suffering and $25,000 for loss of enjoyment of life. The third circuit analyzed these awards separately. With regard to the award of general damages for past and future pain and suffering, it held that, based on Ms. Chambers’ initial and subsequent injuries resulting from the fall, the award was reasonable. The third circuit also held that Ms. Chambers’ injuries had negatively impacted the activities that she enjoyed outside of her employment and, as such, the trial court did not abuse its discretion in its award of hedonic damages.

Take-Away: Even if a condition presents an unreasonable risk of harm, courts are willing to assess a portion of fault to a plaintiff for not exercising “ordinary care.” So, property owners should always be mindful of the potential defense of comparative fault on the part of a plaintiff.

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

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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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On her way to visit her mother at Baton Rouge General Medical Center, Marion Terrance stopped by the hospital cafeteria at for a cup of ice. Ms. Terrance slipped and allegedly fell, when she stepped off of a mat in front of the ice machine. She told hospital cafeteria employees about her fall and advised that the mat was saturated with water and the ice machine was leaking. After visiting with her mother for ten to twenty minutes, Ms. Terrance returned to the cafeteria to speak with a supervisor about her injury. Eventually, Ms. Terrance filed a lawsuit against the hospital – Terrance v. Baton Rouge Gen. Med. Ctr.

The hospital cafeteria supervisor, Margie Akins, testified that she did not see Ms. Terrance fall. Ms. Akins was informed of the incident by cafeteria employees, who told her that Ms. Terrance slipped but did not fall. In response, Ms. Akins immediately checked the area around the ice machine and under the mat and did not see any liquid or ice. Ms. Akins testified that she routinely performed floor checks in the cafeteria every ten to fifteen minutes. On the day of the incident, she had worked in the cafeteria all day and had done a floor check not long before Ms. Terrance slipped. Ms. Akins and the other cafeteria employees testified that they had never seen the ice machine leak, nor had they seen anyone fall by the ice machine.

After a bench trial, the trial court rendered judgment in favor of Ms. Terrance, finding that an unreasonable condition existed at the area around the ice machine and that this unreasonable condition caused her slip and fall. The hospital appealed to the First Circuit Court of Appeals. On appeal, the hospital argued that there was no evidence that it created or had actual knowledge of the foreign substance on the floor. The hospital also asserted that there was no evidence of the amount of time the unreasonably dangerous condition existed.

The appellate court concluded that La. Rev. Stat. § 9:2800.6 (pdf) did not apply and that the hospital’s duty must be analyzed under a standard negligence theory of liability. Under this standard, Ms. Terrance had to show that she slipped, fell, and was injured because of a foreign substance on the hospital’s premises. The burden then shifted to the hospital to show that it acted reasonably to discover and correct the dangerous condition.

Although the appellate court seemed to disagree with the trial court’s finding that Ms. Terrance slipped and actually fell, it could not reverse the trial court’s determinations of credibility and reasonable inferences of fact. The appellate court, however, found that the trial court erred in failing to consider whether the hospital could exculpate itself from the presumption of negligence by showing that it did not act negligently in causing the slip and fall. Reviewing the record, the appellate court found ample evidence that the hospital acted reasonably prior to the accident and in response to Ms. Terrance’s report of water on the floor. The hospital cafeteria supervisor routinely performed floor checks for spills every ten to fifteen minutes; the hospital cafeteria had a regular schedule for cleaning and mopping cafeteria floors; and, after receiving notification of a spill, it was immediately cleaned up. Therefore, regardless, of whether Mr. Terrance actually fell, the fall was not caused by the hospital’s negligence and the judgment of the trial court was reversed.

Take-Away: Liability for a slip and fall may be avoided by strong policies, including regular monitoring for and immediate response to dangerous conditions.

This article was co-authored by Cami Capodice, and associate at Irwin Fritchie Urquhart & Moore LLC

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Diana Murphy was jaywalking across Decatur Street in New Orleans when she tripped over a mound of pushed up asphalt and fell, injuring her right knee and leg (a tibia plateau fracture), which required two surgeries and physical therapy. Mrs. Murphy and her husband filed suit against the City of New Orleans alleging strict liability and negligence in the matter Murphy v. City of New Orleans. The district court found the City 100% at fault and awarded damages in the amount of $999,173.99 broken down as follows: (1) past medical expenses, $314,302.66; (2) future medical expenses, $15,000.00, (3) past lost wages, $169,871.33, and (4) general damages, $500,000.00. The award would have been higher, but Louisiana law imposes a $500,000.00 statutory cap (pdf)  on general damages against the State and its political subdivisions.

The City appealed, in part, on the ground that plaintiffs failed to carry their burden of proof on each element required to establish negligence and strict liability against a public entity.  The Court of Appeal noted that in order to prevail on a negligence or strict liability claim against a public entity a plaintiff must prove that: (1) the City had custody or ownership of the defective thing; (2) the defect created the unreasonable risk of harm; (3) the City had actual or constructive notice of the defect and failed to take corrective action within a reasonable time; and (4) causation. LSA-R.S. 9:2800. A failure to prove any element will bar recovery. The City argued that the elevated pavement did not pose an unreasonable risk of harm to a pedestrian and the City did not have knowledge of the condition. More specifically, the City argued that the defect in the pavement was obvious and that Mrs. Murphy was not paying attention.

The Appellate Court rejected the City’s arguments that the pushed up asphalt did not create an unreasonable risk of harm because it was obviously visible to a pedestrian exercising reasonable care. It based its decision on the facts that: the asphalt rose several inches at its peak and was located away from the curb in the traveled portion of the street; Decatur is a major street in the French Quarter, which is a main attraction in Orleans Parish for tourists who tend to be pedestrians; and, Mrs. Murphy was a tourist who had no familiarity with the area. The Appellate Court was, apparently, unconcerned with the fact that Ms. Murphy was jaywalking at the time of the accident. 

With respect to the City’s knowledge of the defect, the Appellate Court found that the City failed to follow its own written policy that mandated annual visual inspections of all major streets for the six years prior to the accident. Thus, the Court held that the City had constructive knowledge of the defect.  Consequently, the Court affirmed the trial court’s finding that the defect created an unreasonable risk of harm.

Take-Away: A property owner that fails to follow its own property inspection protocol will be charged with knowledge of a defective condition that should have been discovered during inspection.

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In McManus v. State of Louisiana Dept. of Wildlife and Fisheries, Mrs. McManus, individually and on behalf of her minor children, sued two State of Louisiana agencies for the drowning death of her husband. Mr. McManus drowned when he and a friend were attempting to catch baitfish with cast nets from a boat on a public lake near the base of a damn. The men were wearing life vests for the boat ride to the damn, but removed them after arriving at the damn.   Instead of floating down stream away from the damn, as the men had suspected, the boat was drawn towards the damn and was swamped by water falling over the damn. Mr. McManus drowned; whereas his friend swam to shore. After trial, a jury rendered a verdict in favor of Mrs. McManus and her children, but apportioned 25% of the fault for his drowning to Mr. McManus.

The State appealed on numerous grounds, but the primary arguments were that the state was entitled to “recreational immunity” and that it did not have actual or constructive knowledge of the dangerous condition that required it to correct the condition or warn of the danger. The state relied, in part, on the Louisiana Recreational Use Statutes, La. R.S. § 9:2791 (pdf) and La. R.S. §9:2795 (pdf) and argued that the jury improperly concluded that the State knew about the dangerous condition and failed to timely act to correct the condition or warn of its existence.

La. R.S. § 9:2791 provides, in relevant part, that “An owner . . . owes no duty of care to keep such premises safe for entry or use by others for . . . fishing . . . or boating or to give warning of any hazardous conditions, . . . . whether the hazardous condition . . . is one normally encountered in the true outdoors or one created by the placement of structures or conduct of commercial activities on the premises.” La. R.S. §2791, on the other hand, makes clear that immunity will not apply when a landowner willfully or maliciously fails to warn of a dangerous condition of which it knows and that would not otherwise be open and obvious to the recreational user. The appellate court noted that the Louisiana Recreational Use Statutes do not provide absolute immunity for injuries sustained on recreational lands and facilities. Rather, the immunity is qualified and, whether immunity will attach, is dependent on a case-by-case factual analysis. 

Reviewing the facts in the record, the appellate court determined that the jury did not err in its conclusion that the State knew that there was a probability that a boat coming within a certain distance of the base of a damn could be drawn toward the damn and failed to warn of the danger. The court noted that the State included warnings regarding the dangers presented by damns on one of its websites and directed that, when the danger is known, the State is required to post warning signs or correct the dangerous condition. In addition, an employee of the Department of Wildlife and Fisheries had testified that he had a virtually identical experience at the same damn, but that he was able to don his life jacket to avoid drowning. Moreover, the plaintiffs’ expert provided unrefuted testimony that the danger of being pulled towards a damn was not obvious to the public and would not be obvious from looking at this particular damn. He testified, however, that such knowledge was common within the water resource management community and should have been within the knowledge of the people responsible for maintenance and operation of the damn. Finding actual or constructive knowledge of the danger and adequate time to caution users, the appeals court affirmed the State’s liability.

Take-Away: Whether a dangerous condition on recreational property is open and obvious may not always be clear, but a property owner cannot turn a blind eye to serious incidents on its property and hope to find shelter in the Recreational Immunity Statutes.

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The case of Cronin v Department of Public Safety reaffirms that whether a defect on a premises poses unreasonable risk of harm turns on the facts of the case.  Mr. Cronin was severely injured at a building owned by the St. Bernard Port, Harbor, and Terminal District (“Port”). The plaintiff attempted to exit a locked double door when his hand slipped off the metal bar that opened the door and his hand went through the door’s glass panel. The door did not have a sign advising that the door was locked. 

After a bench trial, the plaintiff was found to be 100% liable for his injuries. The trial court relied on testimony indicating that the plaintiff was agitated when he was leaving the building and that he forcefully attempted to push the door open. The plaintiff appealed to the Louisiana Fourth Circuit Court of Appeals. 

On appeal, the appellate court applied Louisiana Revised Statute 9:2800 (pdf) and Louisiana Civil Code Article 2317 (pdf), which limits public entity liability to damages caused by conditions of buildings within the entity’s care and custody. Those conditions have to be known to the entity and not timely corrected. According to the record on appeal, a security guard for the Port testified that he reported the door had a problem of “sticking” and that Port maintenance unsuccessfully attempted to fix the door. The Port locked the door after efforts to get it fixed failed. The Port argued that: locking the door did not create an unreasonably dangerous condition, by itself; a door that contains plate glass is not, in itself, unreasonably dangerous; and, a plate glass is not, in itself, unreasonably dangerous. The appellate court agreed. 

The appellate court, however, noted that the door was in an unquestionably high volume passageway for people entering and leaving the building. Furthermore, it was uncontroverted that the door was defective in that it was difficult to open, because it would stick. The court acknowledged that the plaintiff may have been agitated when he left, but that the plaintiff’s fault did not excuse the duty owed by the Port. The Port had a duty to keep visitors safe from a dangerous condition on the premises by either warning the public that the door was defective or repairing the door. The Court stated that “If the door had been locked, there was no sign to warn a person exiting the building. If the door had been left unlocked…, there is ample evidence that the door was heavy and would stick and not open entirely. Either scenario created an unreasonable risk of harm, especially in light of the fact that the door contained plate glass.”  

The appellate court reversed the trial court’s decision and, rather than remand, adjusted the allocation of fault and found the plaintiff ten percent at fault for his injuries. The plaintiff was awarded $523,951.35 plus judicial demand. 

Take-Away: An owner must warn of an unreasonably dangerous condition. Whether a condition creates an unreasonable risk, however, is not a simple task and includes a weighing of all of the facts.

This article was co-authored by Orian Williams, an associate at Irwin Fritchie Urquhart & Moore LLC

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Although, it is well known that cigarette smoke can be harmful to a person’s health, cigarette butts can also be dangerous.  The question decided by the Louisiana Second Circuit Court of Appeal in Adams v. Louisiana State University Health Sciences Center Shreveport (“LSUHSC”), was whether, as a matter of law, LSUHSC, a public facility, is exempt from responsibility for the damages Sherry Adams sustained when she fell on a wet cigarette butt located on a handicap entrance ramp to the facility. 

On August 9, 2005, Ms. Adams, an off-duty LSUHC employee, slipped and fell when she was going to visit her uncle who was a patient in the hospital. As a result of the fall, Ms. Adams sustained serious injuries to her right hand, fingers, and right ankle. She sued LSUHSC alleging that, at the time of the incident, the ramp was unreasonably dangerous and defective because of the collection of cigarette butts on the ramp.  She further alleged that LSUHSC knew or should have known of the unreasonably dangerous condition or defect associated with the collection of cigarette butts and that the condition could have been prevented if the hospital had exercised reasonable care.

After sufficient discovery, LSUHSC filed a motion for summary judgment, which was granted. The trial court found that: (1) Ms. Adams claims arose under La. C. C. art. 2317 (pdf), which imparts liability upon owners for damages caused by their defective things, and La. R.S. 9:2800 (pdf), Louisiana’s statute limiting liability for public entities arising from public property; (2) Ms. Adams could not meet her burden of proof against LSUHSC; and, (3) the accumulation of cigarette butts did not constituted a defective condition or an unreasonably dangerous condition as contemplated by law. 

On appeal, the Second Circuit reversed and remanded the case to the trial court, holding that the trial court had incorrectly applied Louisiana law regarding a defective condition in property and that Ms. Adams’ claims against LSUHSC were correctly asserted under La.C.C. art. 2315 (pdf), Louisiana’s general tort law. The Second Circuit relied upon its own prior ruling in Holden v. Louisiana State University Medical Center-Shreveport in which it held that La. C.C. art. 2317  and La.R.S. 9:2800 do not apply when a person slips and falls on a foreign substance located on a premises. The court explained that there is a difference between “a defect in the premises” and “a defect on the premises.” Therefore, the court concluded that “the temporary presence of a foreign substance is not, in and of itself, a defect for purposes of strict liability under La. C.C. 2317” and, by extension, La. R.S. 9:2800. Rather, in such cases, the court held that negligence is measured by La. C.C. art. 2315. 

The court also noted that a hospital owes a duty to its visitors to exercise reasonable care to keep its premises in a safe condition commensurate with the particular substance involved but that the standard of care for a hospital is lower than that for a merchant. The Second Circuit held that, because the trial court applied the incorrect law, the trial court failed to consider the relationship between the risk of someone slipping and falling on cigarette butts located on the handicap ramp and the reasonableness of the measures taken by the hospital to eliminate that risk. 

In addition, after conducting a complete review of the trial court summary judgment record, the Court concluded that Ms. Adams had identified material issues of fact that precluded summary judgment. Among the disputed facts was that: (1) LSUHSC had some knowledge of the cigarette butts at the entrance where Ms. Adams fell; (2) someone was supposed to clean the entranceway where Ms. Adams fell; and, (3) the person who cleaned the entrance may not have done it regularly. Moreover, the Court held that the evidence in the record was enough to provide factual support that LSUHSC had actual or constructive notice of the cigarette butts on the ramp. The Court also held that it was a jury’s function, not the court’s, to decide if LSUHSC’s policy for keeping the entrance ramp clean was reasonable. The Court, ultimately, held that LSUHSC failed to carry its initial burden of proving there was no genuine issue of material fact and that it was entitled to judgment as a matter of law.

Take-Away: The Adams’ case demonstrates that a state run hospital can not rely upon La. R.S. 9:2800 to exempt it from its general duties to keep its premises safe. This case also demonstrates that a hospital cannot prevail on a summary judgment if the plaintiff establishes that the hospital may have had some knowledge of a potentially defective condition or did not have a policy to reasonably rectify a known defective condition.

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On a rainy day, Barbara Price entered the Waterworks office to pay her bill. Upon entering, she slipped on water in the lobby and fell injuring her leg and back. In Price v. Waterworks District #1, et al., Mrs. Price sued the Waterworks and the Parish government for her injuries. The defendants filed a motion for summary judgment (pdf), arguing that there was no genuine issue of material fact that would preclude the granting of judgment in their favor. According to the defendants, both sides agreed that: it was raining when Mrs. Price entered the building; the defendants did not have a written inspection policy regarding inspecting the condition of the floors; there was no “wet floor” warning sign placed inside the building; Mrs. Price slipped on water inside the building; and, no one reported water on the floor prior to her slip and fall.  The defendants also argued that Mrs. Price failed to meet her burden under Louisiana public entity premises liability law of establishing that the wet floor was actually or constructively known to the defendants and that they had failed to timely act to correct the dangerous condition (pdf).

The trial court granted the motion for summary judgment and Mrs. Price appealed, arguing that a genuine issue of material fact existed as to the defendants’ actual or constructive knowledge of the wet floor. Mrs. Price claimed that the fact that it was raining and that the defendants did not have an inspection policy for the floors was sufficient to create an issue for trial and avoid summary judgment. The appellate court disagreed, citing Louisiana Supreme Court precedent that the absence of an inspection plan does not suggest that an employee of a public entity has actual knowledge of a dangerous condition. Accordingly, the trial court was correct in holding that defendants’ lack of an inspection policy for the floors did not prevent the granting of the defendants’ motion for summary judgment. The appellate court further noted that Mrs. Price had not shown that the defendants’ had constructive knowledge of the wet floors by pointing to facts that would support an inference that the defendants had actual knowledge of the wet floor.  Therefore, the summary judgment was affirmed. 

Take-Away:  Simply because a plaintiff slips on a wet floor will not impose strict liability on a public entity. Furthermore, unless the plaintiff can make a prima facie showing of the public entity or property owner’s actual or constructive knowledge of the wet floor, Louisiana courts will not hesitate to grant summary judgment in favor of a public entity. 

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