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

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.

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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.

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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 22^nd 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

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