To Grandmother's House We Go . . . At Your Own Risk.

On April 15, 2012, 37-year-old Angela Lawrence agreed to go over to her grandmother’s house and climb up on the roof to clear off some limbs and debris, as she had done several times before. Because the extension ladder Lawrence normally used had been stolen, her grandmother, Dorothy Dell Sanders, suggested that she use an A-frame ladder stored in Sanders’ shed. Lawrence initially suggested waiting to get an extension ladder, but ultimately used the A-frame ladder to get on the roof of the house without a problem. However, when Lawrence was coming down off of the roof, the ladder shifted and she fell to the ground, resulting injuries to her wrist, neck, and back. Lawrence then filed suit against Sanders and Sanders’ insurer, Allstate Insurance Company, in Louisiana state court, alleging negligence in failing to have safe equipment for her to use, failing to maintain the equipment in a safe condition, and providing faulty and damaged equipment. 

Sanders and Allstate moved for summary judgment, arguing that Lawrence was in the best position to determine if the ladder was unsafe before she used it to climb onto the roof. Lawrence countered by arguing that a genuine issue of material fact existed as to whether it was unsafe to use the ladder, and that the main question was whether Sanders was negligent for failing to have someone hold the ladder for her, or for failing to provide an extension ladder instead.   The trial court held that there was no genuine issue of material fact as to alleged defect in the ladder or Sanders’ alleged negligence, and granted summary judgment in favor of Sanders and Allstate. Lawrence appealed the decision to the Second Circuit Court of Appeals. Lawrence v. Sanders.

The Second Circuit first turned to the issue of Sanders’ alleged negligence under La. Code Civ. art. 2315 (pdf), beginning with an inquiry as to whether Sanders had a duty to hold the ladder for Lawrence, or find someone else to do so. At the outset the Second Circuit cited the Louisiana Supreme Court’s holding in Bufkin v. Felipe’s Louisiana, LLC, which held that “a defendant generally does not have a duty to protect against that which is obvious and apparent.” The Second Circuit also looked to the First Circuit’s decision in Barrow v. Brownell,  In Barrow, the court held that a handyman who fell off of a ladder while taking down Christmas lights was not owed a duty by the homeowner or her insurer, because the handyman alone decided when, where, and how to do his job, and his fall occurred as a result of the manner in which he did the job. Lawrence attempted to distinguish her case from Barrow, saying that Sanders instructed her to use the A-frame even after she expressed concerns about it. The Second Circuit rejected this argument, noting that in her deposition, Lawrence stated she had performed the task of cleaning her grandmother’s roof at least 20-24 times before. Further, Lawrence agreed to use the A-frame ladder, even though she Sanders was not upset with the suggestion to wait for an extension ladder. Finally, Lawrence admitted that she never asked anyone to hold the ladder. Based on these facts, the Second Circuit found that: (1) Lawrence was in a better position than Sanders to determine if the ladder was inadequate for the task; (2) the hazards in the use of the ladder were obvious and apparent to Lawrence; and (3) Lawrence decided when, where, and how to do the job. Therefore, the Second Circuit held that Sanders did not owe a duty to Lawrence and affirmed dismissal of the negligence claims. 

As to Lawrence’s allegation that her injuries were due to a defect in the ladder under La. Civ. Code art. 2317 (pdf), the Second Circuit began its analysis by noting that Lawrence had the burden to prove: (1) the ladder was in Sanders’ custody; (2) that the ladder contained a defect which presented an unreasonable risk of harm to others; and (3) that the defective condition caused the damage and Sanders should knew or should have known of the defect. 

As to the first element, there was no dispute that the ladder was in Sanders’ custody. But as to the second element, the Second Circuit held that Lawrence failed to meet her burden to establish the existence of a defect, an essential element to her claim. The Court held that there was no factual support for the claim that the ladder was defective, citing Lawrence’s deposition testimony that “she did not look at [the ladder]” before climbing on the roof or after her fall, and further stating that Allstate “didn’t say it was damaged or anything,” upon examining the ladder. The Court also rejected Lawrence’s attempt to argue that the ladder was too short for the job, ruling that the height of the ladder could not meet the definition of “an imperfection pos[ing] an unreasonable risk of injury to persons exercising ordinary care and prudence. Finally, as to the last element, the Court pointed to the fact that Lawrence used the ladder to safely get onto the roof, and failed to provide any evidence that the elderly Sanders, who remained in the house while Lawrence used the ladder, should have known of the defect. Therefore, the Second Circuit affirmed the trial court’s summary judgment against Lawrence on the allegations of defect. 

Take-Away: An owner is not automatically liable for injuries sustained by someone performing a task on his property, particularly if the one performing the task: (1) is in the best position to determine the risk of harm and (2) controls when, where, and how to do the task.     

 

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

Ignorance Of Defective Condition Is Not Bliss When Accident Occurs In Construction Zone

During a visit to her father’s house following Hurricane Katrina, Sharon Lewis stepped on a soft spot in the dining room floor and the floor collapsed, causing her foot to go through the floor. Ms. Lewis subsequently filed a lawsuit – Lewis v. Jones, et al., against her father, Clifton Jones, and his homeowner’s insurer, Allstate Insurance Company. 

In her lawsuit, Ms. Lewis alleged that her father had lived in the home for over 50 years and was aware or should have been aware of soft spots in the flooring, yet failed to repair them or warn Ms. Lewis of their existence. Ms. Lewis further alleged that Allstate was liable as the homeowner’s liability insurer of Mr. Jones on the date of the accident. At trial, Ms. Lewis testified that she had not been to her father’s house since 2005 and she was not aware of the condition of the floor when she arrived at the house in 2006. She did admit, however, that she was aware that the house was undergoing repairs at the time of her visit. 

At trial, Allstate sought to admit the audio taped statement of Mr. Jones, taken by an Allstate adjuster weeks after the accident (Mr. Jones had died prior to the trial). In that statement, Mr. Jones said that he did not know that the floor was rotten and he therefore had no reason to warn his daughter of the condition when she visited him in 2006. Over Ms. Lewis’ objections, the trial court allowed the statement to be read to the jury. At the end of the trial, the jury found that both Mr. Jones and Ms. Lewis were negligent and assessed 50% fault to each of them. Ms. Lewis appealed the judgment on the basis that, among other things, the trial court erred in admitting into evidence the audio taped statement of her father and in assigning 50% fault to her. 

As to the admissibility of her father’s statement, Ms. Lewis argued that an earlier statement taken by another investigator was different from the statement admitted into evidence and, therefore, the latter statement was unreliable. The appellate court disagreed and determined that the substance of both statements was similar and there was nothing to indicate that either statement was untrustworthy. And, more importantly, the statements were the only evidence of Mr. Jones’ knowledge of the condition of the floor, and for this additional reason alone they were properly admitted into evidence. 

With respect to the jury’s assignment of comparative fault to Ms. Lewis, the appellate court noted that the fact that Ms. Lewis’ was aware that repairs were being made in the house at the time of her visit, coupled with her awareness that the house had been damaged in Hurricane Katrina, supported the assessment of fault against her. Even though there was no evidence that Ms. Lewis’ father warned her of the condition of the floor, she still had an obligation to proceed with caution in a house that was under repair. Since the assessment of comparative negligence is a factual matter within the sound discretion of the trier-of-fact, the appellate court refused to reverse the finding of the jury.

Take Away: If you visit a property where construction work or repairs are taking place, you have an obligation to proceed with caution even if you have not been warned of a dangerous or defective condition on the premises. Failure to do so, could result in you being found responsible, at least in part, for any injuries you may sustain.

Blue Tarp Blues

Lori Jackson’s roof was damaged in Hurricane Katrina, causing water to leak into her kitchen. Ms. Jackson did not have the roof repaired or inspected by a professional. She also did not request that her insurer send a roofer to secure her roof with a tarp. Approximately a month later, with Hurricane Rita threatening southeast Louisiana, Ms. Jackson asked her boyfriend, Melvin Millien, to place a tarp over the damaged portion of her roof to prevent more water from leaking into her house. Mr. Millien regularly performed his own home maintenance and occasionally helped Ms. Jackson with her home repair, but he was not a professional roofer and had no expertise in the area of roofing. Despite his lack of expertise, Mr. Millien secured the tarp to Ms. Jackson’s roof. As he was attempting to climb down from the roof, he slipped on a loose shingle and fell to the concrete slab below. As a result of the fall, Mr. Millien suffered a fractured leg and a smashed heel, which injuries required surgery and physical therapy to repair. Mr. Millien sued Ms. Jackson and her homeowner’s insurer. 

It was established at trial that Mr. Millien slipped on a loose shingle located near the edge of the roof. Mr. Millien testified that the errant shingle was not located in the area of the roof onto which he had affixed the tarp. He further testified that he did not know the signs of wear and tear on a roof, nor did he know the extent of the damage to Ms. Jackson’s roof, and that he could not tell that the shingle was loose before he slipped. 

The trial court awarded Mr. Millien $62,500.00 plus legal interest, applicable medical expenses, and costs. 25% of fault was apportioned to Mr. Millien, while defendants were found to be 75% at fault. Defendants appealed, arguing that any potential danger on Ms. Jackson’s roof was “obvious, universally known, and easily avoidable” and that the roof did not therefore present an unreasonable risk of harm. The Louisiana Fifth Circuit Court of Appeal affirmed. 

The appellate court noted that a landowner has a duty to discover any unreasonably dangerous conditions, and to either correct the condition or warn of its existence. Generally, a landowner has no duty to protect against an open and obvious danger. If the condition complained of should be obvious to all, the condition is not unreasonably dangerous. There is, however, no fixed rule for determining whether a thing presents an unreasonable risk of harm. Many factors are considered and weighed, including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; (6) the social utility involved; and (7) the degree to which a potential victim can observe the risk.

In Millien v. Jackson, the Fifth Circuit agreed with the trial court that Ms. Jackson’s roof posed an unreasonable risk. By Ms. Jackson’s own admission, the roof was damaged following Hurricane Katrina and she failed to have it repaired. She also failed to inform Mr. Millien that she had not performed routine maintenance on her roof or that the roof had not been inspected by a professional. And Ms. Jackson did not request that her insurer send a professional roofer to place the tarp on her roof. The Court found that the probability of harm occurring in such a case was relatively high because the roof was already damaged when Mr. Millien placed the tarp. The Court also found that the potential gravity of harm was high because of the roof was more than twelve feet off the ground. But most importantly, the Court found that the social utility of Mr. Millien’s actions was high because he agreed to assist Ms. Jackson in preserving her property under difficult conditions, despite the fact that he was under no legal obligation to do so. The significance of Mr. Millien’s conduct was substantial – by affixing the tarp on Ms. Jackson’s hurricane-damaged roof to prevent further damage from a second hurricane, he attempted to protect the property of an individual with no other recourse. 

Take-Away: The social utility of a plaintiff’s actions is an important factor in determining whether he should be granted a right of recorvery for injuries suffered from a defective condition. 

 

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

Slip And Fall Claim Defeated By Lack Of Evidence That Fall Caused Death

In November 1995, Winfret Bell was walking from one room to another in the apartment she rented from the Housing Authority of New Orleans (“HANO”) when her shoe got caught in a broken threshold between the rooms. The threshold was not flush with the floor and Ms. Bell fell forward, sustained severe facial injuries and died on the same day. Ms. Bell was alone at the time of her fall and was not discovered until later that day by her granddaughter. Prior to Ms. Bell’s fall, she and her daughters had filed complaints to HANO about the broken threshold, which apparently were not addressed by the time of Ms. Bell’s fall. 

Ms. Bell’s seven daughters filed a wrongful death and survival action against HANO, claiming negligence and strict liability. Following trial, the trial court found in favor of Ms. Bell’s daughters and awarded the sum of $50,000 to each of Ms. Bell’s daughters.   

HANO appealed the trial court’s decision to the Louisiana Fourth Circuit Court of Appeal, arguing that Ms. Bell’s daughters failed to prove that the defective threshold was the cause of Ms. Bell’s death. In order to prevail in their claims against HANO, Ms. Bell’s daughters had to show that: 1) the threshold was in the care, custody and control of HANO; 2) that the threshold presented an unreasonable risk of harm; 3) that HANO knew or should have known about the broken threshold; and 4) that the threshold was the cause-in-fact of Ms. Bell’s death. 

Reviewing the evidence, the Fourth Circuit agreed that the evidence presented at trial by Ms. Bell’s daughters was sufficient to prove that HANO had the care, custody and control of the threshold, and that the threshold presented an unreasonable risk of harm in that it was not flush with the floor, and that HANO knew or should have known about the threshold through the numerous complaints filed by Ms. Bell and her daughters. 

However, the Fourth Circuit concluded that the trial court erred in finding that the threshold was a cause of Ms. Bell’s death. The only evidence introduced at trial on the issue of causation was Ms. Bell’s death certificate. On the certificate, the coroner’s office listed Ms. Bell’s cause of death as “hypertensive cardiovascular disease” and classified the manner of death as “natural”. The death certificate contained no reference to a fall or any other injuries or complications that caused or contributed to the death. No evidence was introduced at trial that showed or claimed that the fall caused or contributed to Ms. Bell’s death. Because Ms. Bell’s daughters did not offer any evidence to controvert the coroner’s conclusion that Ms. Bell’s death was caused by hypertensive cardiovascular disease, the court reversed the decision of the trial court and found in favor of HANO. 

Take-Away: The plaintiff bears the burden of proof in a premises liability case and, although able to make a prima facie showing to get into court, causation may be defeated by death certificates and medical records establishing another medical cause for injury or death.

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

Homeowner Not Liable For Collapse Of Attic Stairs Caused By Hidden Defect

To what extent can a homeowner be held liable for hidden defects on their property? In McNeil v. Miller, the Louisiana First Circuit Court of Appeal addressed this issue in the context of a case where an HVAC repairman was injured when he attempted to use a set of pull-down stairs to access the attic of the home at issue. As the repairman was making his way up the stairs, they detached from the ceiling causing the repairman to fall. The evidence established that the stairs were only attached to the ceiling with 2 to 4 nails and that the homeowner knew nothing about the defect. The repairman sued the homeowner and his insurer in the 22nd Judicial District Court for the Parish of St. Tammany for damages and injuries sustained due to the defective attic stairs. Thereafter, the defendants moved for summary judgment arguing that the repairman could not carry his burden to prove that the homeowner either knew or, in the exercise of reasonable care, should have known of the alleged defect.(pdf)  Judge William J. Burris granted the motion finding that there was no issue of fact on this question.

The plaintiff appealed the trial court’s judgment, but the First Circuit affirmed. The court found insufficient evidence that the homeowner could have discovered that the attic stairs were only minimally attached to the ceiling and further refused to impute the alleged negligence on the part of the home inspector for failing to discover this defect to the homeowner in the absence of proof of a “special vicarious relationship.

Take-Away: This case demonstrates that even where an accident takes place on the property of a home or building owner, a powerful defense can be mounted when the accident resulted from a hidden defect that could not have been discovered in the normal course of affairs. It further demonstrates that a property owner should not take on an affirmative role in directing an otherwise competent building inspector in performing his duties as this might create a “special relationship” through which the liability of the inspector might be imputed to the property owner.

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