Mrs. Judith Henry went to New Orleans Hamburger and Seafood Company restaurant (“New Orleans Hamburger”) for lunch with a group of friends. Mrs. Henry was 74 years old and was walking with the assistance of a cane. After entering the restaurant, the group walked to a table, dropped off their belongings, and then went to the counter to place their orders. On her way back to the table, Mrs. Henry took the same route she had taken on the way up to the counter. While returning to the table, Mrs. Henry’s toe apparently became caught in the carpet, causing her to lose her balance and fall. As a result of the fall, Mrs. Henry suffered a broken ankle that required four surgeries to correct and left her in a wheelchair.
Mrs. Henry and her husband filed suit against New Orleans Hamburger and its insurer and alleged that the carpet was uneven because it consisted of small squares, which formed a weave pattern that they claimed was not of uniform height. In response, New Orleans Hamburger filed a motion for summary judgment that was granted by the court, dismissing the lawsuit. The Henrys then filed an appeal, Henry v. NOHSC Houma. On appeal, the Henrys argued that the trial court erred because a genuine issue of material fact existed as to whether the carpet upon which Mrs. Henry fell was uneven, which they contended constituted an unreasonable risk of harm. And, according to the Henrys, New Orleans Hamburger had notice of the condition because it ordered the carpet and had it installed in the restaurant.
In support of its motion for summary judgment, New Orleans Hamburger submitted an affidavit from its managing partner attesting that carpet was installed in the restaurant’s dining area because uncarpeted floors can become dangerously slippery when food and beverages are spilled onto them. Further, the carpet was commercial grade and had not been altered in any way in the month between its installation and the incident involving Mrs. Henry. In addition, no other accidents involving the carpet had taken place since the restaurant opened. New Orleans Hamburger also provided an affidavit from its liability expert who had inspected the restaurant and found that the carpeted area was of a standard commercial grade and was level throughout. He also noted that the carpet’s square pattern simply represented changes in the color of the carpet, not places where the carpet had a different height.
The deposition testimony of Mrs. Henry also supported New Orleans Hamburger’s summary judgment motion. The testimony established that Mrs. Henry had been to the restaurant six times since it opened, and she had never tripped, slipped, or fallen on the carpeted floor; nor had she seen anyone else trip, slip, or fall on the floor. She also stated that she was looking down at the floor at the time of the incident so that she would know where to place her cane and she saw nothing that would present a hazard or danger on the carpet, like food or other foreign objects. Mrs. Henry admitted that the only thing that might have caused her fall was her belief that the carpet was uneven due to the “square pattern.”
The court of appeal affirmed the district court’s granting New Orleans Hamburger’s motion for summary judgment because there was an absence of factual support for the Henrys’ claim that the carpet’s condition created an unreasonable risk of harm. The court explained that the carpet had been professionally installed, was commercial grade, and lacked any worn spots or frayed edges that could constitute a hazardous condition. In addition, the Henrys failed to show that there was a variation in carpet height resulting from the square pattern that created an unreasonable risk of harm.
Take-Away: Not all factual disputes constitute a “genuine issue of material fact” sufficient to defeat summary judgment. And, a plaintiff has the burden of proving that the cause of an accident constitutes an unreasonable risk of harm.
This article was co-authored by Jon Phelps, an associate at Irwin Fritchie Urquhart & Moore LLC.