A Video is Worth a Thousand Words--Video Footage Defeats Plaintiff's Efforts to Avoid Summary Dismissal of Her Lawsuit against Wal-Mart

Hubert v. Wal-Mart Louisiana, LLC, involved a slip-and-fall at a Wal-Mart store.  Wal-Mart surveillance camera footage captured a male shopper wearing a white baseball cap pushing a grocery cart down the dairy aisle.  It showed the shopper travel away from the camera and move further down the aisle before deciding to turn his cart around and retrace his steps at 7:30:42 p.m.  It then showed him push his cart a short distance and two seconds later stop the cart when he noticed something dripping from his cart onto his leg and the floor.  Next, the shopper immediately pushed his cart out of the aisle and proceeded without his cart to find a Wal-Mart employee (7:30:51-52 p.m.).  Seconds later Jessica Hubert fell in the exact location where the male shopper appeared to have noticed the spilled item—salsa from a broken jar—47 seconds earlier.

Hubert filed suit in Louisiana state court against Wal-Mart seeking damages for injuries she allegedly sustained when she fell. Wal-Mart removed the case to federal court on diversity jurisdiction grounds, following which it filed a motion for summary judgment.  Hubert opposed the motion.

The federal court judge, Judge Shelly Dick of the Middle District of Louisiana, first noted that Hubert’s claims were controlled exclusively by Louisiana’s “Merchant Liability Statute,” La. R.S. 9:2800.6 (pdf).  The issue therefore was whether Hubert had proven that Wal-Mart had constructive notice of the spill as required by La. R.S. 9:2800.6(B)(2) & (C)(1), so as to avoid summary dismissal of her claims.  Constructive notice is defined under the law to include a mandatory temporal element.  To prove constructive notice, Hubert had to establish through positive evidence that the condition existed for some period of time sufficient to place Wal-Mart on notice of its existence.

Hubert made a number of arguments in an effort to prove constructive notice.  She argued that the presence of a Wal-Mart employee in the immediate area of the spill prior to the fall established constructive notice and that a grocery cart’s wheel marks through the spill implicitly established that the salsa had been on the ground a sufficient period before the fall. Hubert also relied on a U.S. Fifth Circuit decision that she claimed supported her position because there the court recognized that the temporal showing in a slip-and-fall case could be based upon a reasonable inference drawn from circumstantial evidence, such as the size and nature of the spill. 

Judge Dick rejected each of Hubert’s arguments and granted Wal-Mart’s summary judgment motion.  In reaching its decision, the Court emphasized that Louisiana’s Merchant Liability Statute expressly provides that the mere presence of a store employee in the vicinity where the condition exists does not, by itself, constitute constructive notice.  And the evidence presented by Hubert did not otherwise support a finding of constructive notice.  Rather, surveillance video showed that the employee was not actually in close proximity to the spill and the spill only existed for around fifty seconds prior to the fall.  Hubert also admitted that the store employee had his back turned to the spill and was preoccupied with performing work tasks shortly before the fall.  Regarding the grocery cart tracks through the salsa, the Court noted that the video of the male shopper showed that he created the spill and then made the marks with his cart, which confirmed that the salsa was only on the ground for less than a minute prior to Hubert’s fall.  This evidence overcame any possible inference that the temporal element of the statute was satisfied.

Take-Away:  Strong video surveillance evidence documenting the exact timing of a spill and a patron’s subsequent slip and fall in the area of the spill can overcome much softer evidence or argument of a plaintiff such as the presence of a store employee in the “immediate vicinity” of the spill or any inferences drawn from the presence of buggy track marks through the spilled area.

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

 

 

A Merchant's Duty to Warn . . . of a Zip Tie?

On April 18, 2012, Benjamin Tomaso visited the Home Depot in Slidell, Louisiana.  He parked his car near the main entrance while his fiancé entered the store to return an item.  When he noticed lawn tractors near the entrance, he stepped out of his car and sat on one of the tractors to “check it out.”  A Home Depot employee asked Mr. Tomaso to remove himself from the tractor because there was insufficient room for the employee to push shopping carts between Mr. Tomaso’s parked car and the tractor.  While attempting to step down from the tractor, Mr. Tomaso fell.  At first, he was not sure what caused him to fall, but after he fell, he noticed a small zip tie on the floorplate of the tractor and concluded that it was the only possible cause of his accident.

Mr. Tomaso filed a slip-and-fall suit against Home Depot, U.S.A., Inc. (“Home Depot”), claiming that he suffered extensive injuries as a result of his foot being snagged by a hazard – the zip tie – that had negligently not been removed from the subject tractor.  Home Depot filed a motion for summary judgment, asserting that Mr. Tomaso failed to meet the requisite burden of proof governing negligence claims against merchants pursuant to La. R.S. 9:2800.6 (pdf).  Specifically, Home Depot argued that the zip tie was not a defective condition or otherwise inherently dangerous, and that Mr. Tomaso presented no evidence that any injury caused by a zip tie was foreseeable or that Home Depot should have known an injury could occur.  Additionally, Home Depot urged that Mr. Tomaso could not prove causation because he did not know what caused him to fall initially, and only after he saw the zip tie, Mr. Tomaso considered that to be the sole possible cause. 

In opposition to Home Depot’s motion, Mr. Tomaso introduced excerpts from the deposition of Home Depot’s assistant manager, who testified that the zip tie is placed on the tractor by the manufacturer to secure it during transit, and that the zip tie is usually removed by the customer after purchase.  In support of its motion, Home Depot introduced the affidavits of two Home Depot employees stating that neither employee had ever witnessed or taken an incident report where a customer tripped on a zip tie connected to a lawn tractor on display. 

Following a hearing, the trial court granted Home Depot’s motion and dismissed Mr. Tomaso’s action.  Mr. Tomaso appealed, asserting that the trial court erred in finding: (1) Home Depot was not negligent for failure to remove zip ties from the tractor before allowing Mr. Tomaso to climb on it for inspection; (2) the negligently left zip tie on the tractor was not a hazard; (3) that the negligently left zip tie was not an unreasonable risk of harm; and (4) that Home Depot’s supervisor employee was not negligent in ordering Mr. Tomaso to immediately remove himself from the tractor without warning him of the negligent hazardous zip tie as he was stepping down from the tractor.

Although Mr. Tomaso did not specify which substantive law he believed was applicable to his case, the Court of Appeal discussed two relevant statutes: merchant liability under La. R.S. 9:2800.6 and premises liability arising from ownership or custody under La. Civil Code art. 2317.1 (pdf).  The Court noted that the applicability of the merchant liability statute was questionable given that the accident took place outside the store entrance in the parking lot and did not arise from Home Depot’s failure to specifically keep its aisles, passageways, and floors in a reasonably safe condition.  Nonetheless, the Court found that summary judgment was appropriate under either statute because there was no evidence to suggest that Home Depot had knowledge of a danger or risk of harm created by the zip tie before Mr. Tomaso’s accident, and proof thereof was required under either theory of recovery.  In addition, the Court reasoned that Mr. Tomaso’s post hoc speculation that the zip tie caused his accident was insufficient to provide the factual support necessary to show he would be able to meet his burden of proving causation at trial.

Finding Mr. Tomaso failed to come forward with evidence sufficient to create a genuine dispute for trial on the essential elements of his claim, the Court of Appeal affirmed the trial court’s judgment granting summary judgment in favor of Home Depot and dismissing Mr. Tomaso’s claims.

Take-Away: To recover under either the merchant liability statute (La. R.S. 9:2800.6) or the premises liability statute based on ownership or custody (La. C. C. art. 2317.1), a slip-and-fall plaintiff bears the burden of proving that the defendant had actual or constructive knowledge of a danger or risk of harm before the plaintiff’s accident.  Additionally, post hoc speculation as to what caused an accident is not enough to show that a plaintiff would be able to meet his or her burden of proof at trial.

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

Don't Shop 'til You Drop

On November 1, 2013, Virgie Ray was shopping for clothes at the Stage Store, the same retail store where she had shopped regularly for years. Standing next to a rolling clothing rack, Ms. Ray asked an employee for help with finding a blouse. Attempting to follow the employee to another area of the store, Ms. Ray stepped into the clothing rack, and her right foot caught the bottom bar of the rack, causing her to fall. 

Ms. Ray filed a slip-and-fall suit against the Stage Store owners (“Stage”), claiming that she suffered injuries to her knees, face, shoulder, neck and right eye. She claimed that the clothing rack created an unreasonable risk of harm that Stage’s employee had a duty to warn her about. To prove her claim under Louisiana law, Ms. Ray must show that an unreasonably dangerous condition existed in the store when she fell, and that Stage created the condition, knew that the condition existed, or should have known the condition existed.  In addition, Ms. Ray must show that Stage’s employee failed to exercise reasonable care to protect her from the unreasonably dangerous condition.  Stage filed a motion for summary judgment asking the court to dismiss Ms. Ray’s claims on the basis that she had presented no evidence to support the elements of her claim. According to Stage, the clothing rack and its exposed feet were open and obvious and did not create an unreasonable risk of harm, and its employees had no duty to warn Ms. Ray of the rack’s presence or location.

Video evidence of the accident confirmed that the clothing rack was plainly visible to Ms. Ray immediately before she fell, and although Ms. Ray testified at her deposition that she could not see the bottom of the rack, she made a contradictory binding admission in which she denied that she did not see the bottom of the rack before she fell. Based on the available evidence, the court found that Ms. Ray was aware of and saw the clothing rack before she tripped and fell. As a result, the court concluded that the clothing rack did not create an unreasonable risk of harm. Rejecting Ms. Ray’s argument that she never had a chance to look down before she began to follow the employee, the court found that neither the accident video nor Ms. Ray’s own testimony reflected that she did not have a chance to look down, or that something prevented her from looking down, before she started walking. 

The court also rejected Ms. Ray’s argument that the store employee’s actions in placing or using the clothing rack were unreasonable and/or violated the store’s policy to transfer clothes from rolling racks to permanent racks as quickly as possible and then move the rolling racks to the warehouse when finished. Ms. Ray did not present any evidence showing that the employee’s actions violated the store policy or were otherwise unreasonable. Moreover, Ms. Ray failed to cite a single Louisiana case that found an unreasonable risk of harm was created, and the defendant had a duty to warn, when a temporary clothing rack was used for the same purpose, in the same manner, and in accordance with the same or a similar store policy.

Finding Ms. Ray failed to come forward with evidence sufficient to create a genuine dispute for trial on the essential elements of her claim, the court granted Stage’s motion and dismissed Ms. Ray’s claims.

Take-Away: The mere presence of an obstacle in a store, such as a temporary clothing rack, does not create an unreasonable risk of harm when the condition is open and obvious. Additionally, a store employee’s use/maintenance of a temporary rack or display case does not amount to a failure to use reasonable care unless the claimant can show that the employee’s conduct violated a store policy or was otherwise unreasonable. In order to avoid such claims, retail store owners should take steps to implement a feasible store policy on proper use and maintenance of temporary racks and/or display cases and to train employees to ensure routine compliance with that policy.

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

Continue Reading...

It's a Matter of Time.....and Signs

On October 3, 2013, plaintiff visited a Wal-Mart store in Houma, Louisiana. As she approached the cash register to check out, plaintiff slipped and fell on the ground, which caused her injuries. Around the time of the accident, plaintiff saw a Wal-Mart employee operating a waxing machine, but she could not recall what caused her to fall. Other witnesses, including the plaintiff’s husband, could not identify anything that would have caused the fall. A Wal-Mart manager recalled passing the location where the accident occurred and concluded that the area was dry, and added that it was company policy to secure an area prior to waxing it.

Defendant, Wal-Mart Louisiana L.L.C., filed a motion for summary judgment arguing the plaintiff had failed to produce evidence to support two elements of her claim. First, Wal-Mart argued that there was insufficient evidence to satisfy the “cause-in-fact” element of the plaintiff’s negligence claim. Second, and in the alternative, Wal-Mart argued that the plaintiff did not provide enough evidence to prove a crucial element of the Louisiana’s merchant premises liability act.

Turning to their first argument, Wal-Mart argued that the plaintiff had failed to positively demonstrate that an unsafe condition in the store caused her injury. Wal-Mart cited to deposition testimony of the plaintiff and her husband, and noted that both did not know what caused her to slip and fall. Plaintiff argued that there were inferences to suggest that the wax on the floor caused the slip and fall.

Regarding Wal-Mart’s second and alternative argument, the company focused on a major element in Louisiana’s merchant premises liability act. Louisiana Revised Statue 9:2800.6 (pdf) governs a negligence action against a merchant for damages resulting from injuries sustained in a slip and fall accident. Under that statute, a merchant owes a duty “to persons who use his premises to exercise reasonable care to keep his … floors in a reasonably safe condition.” The plaintiff’s claim is governed by the merchant statute, which requires that a plaintiff satisfy his burden of proof by establishing:

  1. The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;
  2. The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence;
  3. The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Wal-Mart focused on element (1) of this statute and argued that the plaintiff had failed to demonstrate that there was a condition in the store that presented an unreasonable risk of harm. Most notably, Wal-Mart argued that the plaintiff solely relied on the fact that she fell, and could not demonstrate what condition had created an unreasonable risk of harm that was foreseeable. In opposition, plaintiff argued that there were inferences that suggested that the recent wax coating on the ground was the unsafe condition.

After reviewing the law, facts, and arguments from both parties, the court agreed with the defendant, Wal-Mart. The court concluded that the plaintiff had failed to make a positive showing of an unreasonable condition existing prior to her slip and fall.

Take-Away: The fact that a store employee is maintaining an area within a store does not necessarily mean an unreasonably dangerous condition exists.  The person making the claim against the premises owner must prove that the condition created an unreasonable risk of harm that was foreseeable.  In order to avoid such claims, a premises owner should take steps to securely block-off an area that is being fixed or undergoing maintenance.  Additionally, if the work performed requires a drying period, a premises owner should keep an area greater than that which was worked-on blocked off for an appropriate amount of time to ensure its safety.

 

This article was co-authored by Carlos Benach, a law clerk at Irwin Fritchie Urquhart & Moore LLC.

Actual Proof Required - Plaintiff's Claim that Because She Slipped There Must Have Been a Hazard Dismissed

On a rainy morning, plaintiff arrived at Dillard’s for a make-up appointment just as the store opened. Plaintiff recalled that the store entrance had mats, and assumed that she wiped her feet on them. As she walked toward the escalator, plaintiff slipped and fell. She testified that she felt as if she had stepped on “ice or something.” However, neither she nor the employees who came to her aid could identify any substance on the floor. Plaintiff sued Dillard’s, claiming that the store did not exercise reasonable care to keep its aisles free of hazardous conditions.

The court determined that the Louisiana Merchant Liability Statute, R.S. 9:2800.6, governed the plaintiff’s claim. That law requires a plaintiff who claims to be injured because of a fall on a merchant’s premises to prove, in addition to all other elements of her cause of action, the following:

  1. That the condition presented an unreasonable, foreseeable risk of harm;
  2. That the merchant either created the condition or had actual or constructive notice of the condition prior to the accident; and,
  3. That the merchant failed to exercise reasonable care.

The court found that in order to prove a merchant breached its duty, a plaintiff must make a “positive showing” that the hazardous condition existed for so long before the fall that a reasonable merchant would have discovered it. A plaintiff who merely shows that a hazardous condition existed, without additional evidence as to when it appeared, has failed to carry the burden of proving constructive notice.

Plaintiff argued that there must have been a dangerous condition present because that was the only explanation for her fall. Plaintiff assured the court that she was very familiar with the shoes she was wearing and had not slipped in them before. The court rejected this argument. It reasoned that plaintiff’s theory failed to consider the possibility that, for example, her own conduct caused the fall. The court held that the argument that the unsafe condition was “obvious” because of the fall did not amount to the positive evidence required by law. The court found there was simply no factual or evidentiary support for the plaintiff’s claim.

In order to prove the notice element, plaintiff argued that because the store had just opened, Dillard’s had exclusive control over the area of the slip. Therefore, according to plaintiff, Dillard’s must have either created the condition or allowed it to exist for hours. The court rejected this argument as well. The court reasoned that the mere fact employees were in the store was irrelevant. Further, the court specifically noted that merchants do not have the burden to prove the absence of a spill. Instead, the court found, without any actual evidence of the length of time the alleged hazard existed, plaintiff failed to prove the notice element of her claim. Thus the court here held that after admitting she did not know whether the defendant’s employees created or knew of the alleged hazard, did not know how long the alleged hazard existed before she slipped, and did not even know what the hazard was, the plaintiff failed to meet her burden of proof under R.S. 9:2800.6. Therefore the court granted summary judgment for the defendant, dismissing plaintiff’s claims with prejudice.

Take-Away: Business owners are not insurers for their customers, absolutely liable for any injuries on their premises. Rather, a plaintiff who slips and falls in a business must make a positive showing that a hazard existed and that it was present for an unreasonably long time. The act of falling alone proves neither.

This article was co-authored by Andrew Cox, a summer associate at Irwin Fritchie Urquhart & Moore LLC.

Rain Keeps Coming Down On Me . . . And Getting In My Store

Plaintiff went to the Petco store to drop off her daughter’s dog for a grooming appointment at the store’s grooming salon.  As she was leaving the store, she turned around to go back to the counter and slipped on a wet area on the floor and fell, injuring herself. Her injuries from the fall resulted in a total hip replacement. 

On the morning of the accident it was raining, though once plaintiff was in the salon she did not observe any water on the floor. Further, she did not slip when she walked from the salon door to the grooming counter. Rather, plaintiff fell as she was walking back to the salon door from the counter. Plaintiff contended that she turned, stepped, and her foot slipped out from under her. She also claimed that she turned around in response to a Petco employee calling out to her to retrieve her dog’s leash. After plaintiff fell, the right side of her pants was wet. And, when plaintiff’s husband ran into the store to help her, he felt the floor near where she had fallen, and it was wet. None of the Petco employees recalled seeing any water on the floor where plaintiff fell. 

In opposition to a summary judgment motion filed by Petco, plaintiff argued that the main entrance to the Petco store had an awning to protect customers from the rain, but there was no similar awning over the door of the grooming salon. Also, there was no protective mat or towel on the floor of the grooming salon or any wet floor sign or orange cone. Plaintiff further claimed that Petco’s employees were aware that when people and dogs came into the grooming salon on a rainy day, such as the one in question, they brought in moisture.

The court noted that Louisiana Revised Statue 9:2800.6 (pdf) governs a negligence action against a merchant for damages resulting from injuries sustained in a slip and fall accident. Under that statute, a merchant owes a duty “to persons who use his premises to exercise reasonable care to keep his … floors in a reasonable safe condition.” The plaintiff’s claim is governed by the merchant statute, which requires that a plaintiff satisfy his burden of proof by establishing:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;

(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence;

(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Applying this standard, the court found that summary judgment was not appropriate because there was a genuine dispute of material fact as to whether the condition—water on the floor near the entrance of the grooming salon—presented an unreasonable risk of harm; there was a genuine dispute of material fact as to whether Petco had constructive notice of the condition; (This conclusion was based on the fact that when the plaintiff arrived at Petco it had been raining for approximately two hours and the salon had also been open for two hours. It was estimated that at least twelve other dogs and their owners had walked through the grooming salon entrance and the inside before the plaintiff arrived and Petco was aware that these owners and their dogs brought with them moisture from the rain; and there was a genuine dispute of material fact as to whether Petco failed to use reasonable care. The Court noted that the grooming salon entrance had a very small awning over the door that provided far less protection than the awning over other parts of the store and Petco did not place any protective mats inside the grooming salon in spite of its policy to use as many mats as possible during severe weather. Additionally, there was no sign or mark of any kind to warn customers that the floor may be wet, despite the fact that it was a rainy day and moisture was being tracked into the store. 

Take-Away: A premises owner should anticipate that moisture will be brought into their store on a rainy day and take the appropriate precautions such as placing mats near the entranceway and/or placing wet floor signs in the appropriate areas.

Once a Problem, Always a Problem

Jennifer Louviere was shopping in a Wal-Mart when she slipped and fell in a clear substance that she believed came from water dripping from the ceiling. Ms. Louviere, and her aunt who was with her at the time, were unaware of how long the water had been on the floor, and they did not see any buggy tracks or foot prints in the puddle of water. They also did not know if anyone from Wal-Mart knew the substance was on the floor prior to the fall.

Ms. Louviere sued Wal-Mart and alleged that the company was negligent in (1) failing to properly inspect the area where the accident occurred, (2) failing to properly maintain and inspect and clean the premises, (3) failing to warn of this unreasonably dangerous condition, (4) failing to maintain, inspect and repair the ceiling/roof, and failing to warn Ms. Louviere and other customers of same, and (5) failing to use reasonable and prudent care under the circumstances. Ms. Louviere asserted claims under Louisiana’s merchant liability law, in strict liability, and the doctrine of res ipsa loquitur

Wal-Mart sought summary dismissal of the case on the grounds that Ms. Louviere could not establish (1) the existence of a dangerous condition or (2) that Wal-Mart either created the condition or had actual constructive notice of the condition prior to the accident. Wal-Mart further maintained that Ms. Louviere’s strict liability and res ipsa loquitor claims should be dismissed because Revised Statute 9:2800.6, Louisiana’s Merchant Liability Law, is the sole theory of recovery available to her.

The court agreed that Ms. Louviere could only bring a claim under Louisiana’s Merchant Liability law and dismissed her claims in strict liability and under the doctrine of res ipsa loquitur. As to Ms. Louviere’s surviving claims, the court considered evidence presented by Ms. Louviere that Wal-Mart created the condition that caused the accumulation of water in the area where she fell and Wal-Mart was on notice of the leaks, yet failed to take any preventative measures. Ms. Louviere noted that she saw water dripping from the ceiling at the time of her fall and that Wal-Mart employees testified that the store had a history of ceiling leaks. Ms. Louviere also relied on the testimony of her expert who opined that the leak that caused Ms. Louviere’s accident was from the rack house and/or air conditioning tubes in the ceiling, and that there was a long pattern of leakages related to this part of the building. Based on this evidence, the court found that there were genuine issues of material fact for trial as to whether or not Wal-Mart created the hazardous condition that caused the alleged incident, and/or whether or not Wal-Mart had constructive notice of the hazardous condition that caused Mr. Louviere’s accident. 

Take-Away: In a slip and fall case, although a plaintiff may not be able to establish that a premises owner such as Wal-Mart either created or had notice of the actual dangerous condition that caused the accident, a plaintiff may be able to survive summary judgment dismissal if she can establish a history or long standing pattern of similar dangerous conditions in the area where the slip and fall occurred.

Slip Sliding Away: Customer's Conflicting Testimony and Lack of Evidence Torpedoes Her Slip and Fall Claim

Gail Baudy filed suit to recover damages from a broken right arm and radial neck fracture she sustained when she fell at a Winn-Dixie store as she was stepping off of the sidewalk and curb onto the driveway of the shopping center. Mrs. Baudy alleged that the slope in the driveway caused her ankle to roll as she stepped off of the curb onto the driveway. She further claimed that the sloped driveway created a dangerous condition, for which Winn Dixie was liable due to its failure to prevent the condition from causing injury, and that the store failed to warn of the dangerous condition.  

At trial, Mrs. Baudy testified that she shopped at the involved Winn-Dixie store two to three times a week prior to her fall. On the day of her fall, she was walking towards the store on the sidewalk and noticed a crowd forming around a table of girls selling Girl Scout cookies on the sidewalk near the entrance to the store. In an effort to avoid the crowd, she stepped off of the sidewalk/curb and onto the driveway. Although Mrs. Baudy claimed that the driveway appeared to be level and not sloped, when she stepped onto the driveway the slope of the driveway caused her ankle to roll and she fell to the ground.   This testimony conflicted with her prior deposition testimony wherein she stated that the unevenness of the curb caused her to fall. 

At trial, Winn-Dixie’s expert testified that the maximum allowable height for a curb is seven inches, and that the curb in the area where Mrs. Baudy she fell measured below that limit. He also testified that the sidewalk in the driveway measured within code limits for slope. And, he explained that when he inspected the area he did not find any uneven surfaces in the area of Mrs. Baudy’s fall or any other unreasonable dangerous condition. Based on the evidence presented at trial, the court found that Mrs. Baudy failed to present any evidence of a defect or other unreasonable risk of harm. The court also observed that the slope of the driveway was open and obvious. 

On appeal, the court noted that Mrs. Baudy sought to establish liability on the part of Winn-Dixie based on the existence of an unreasonably dangerous condition or defect on the defendant’s property under Louisiana Civil Code Article 2317.1 (pdf). Under that article, “[t]he owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.” The appellate court first noted that the mere fact that a pedestrian fell does not automatically render the condition of a street unreasonably dangerous, particularly where the complained about condition is open and obvious. After considering all the evidence, the appellate court found that there was no evidence of a danger upon which reasonable people could reach a contrary result and find Winn Dixie liable for Mrs. Baudy’s injuries.

Take-Away:  When a plaintiff’s testimony at trial conflicts with her earlier deposition testimony, serious issues are raised as to the plaintiff’s credibility. And, simply because a store patron falls on the premises, does not necessarily mean that the fall occurred as a result of an unreasonably dangerous condition.

Customer's Claim against Wal-Mart is Two-Thirds Empty

Valerie Flowers slipped and fell in a puddle of water near shelving that held jugs of water while shopping at Wal-Mart. She fell after she had removed a full jug of water from the shelf and as she was turning to place the jug into her grocery cart. As she was falling, Ms. Flowers noticed a dinner plate size puddle of water on the floor. Upon hitting the floor, the jug of water Ms. Flowers was holding burst open, enlarging the original puddle. Ms. Flowers claimed that prior to the fall she had noticed that one of the jugs on the shelf was two-thirds empty.

Ms. Flowers filed suit in Jefferson parish for injuries allegedly sustained in the fall. Wal-Mart sought summary dismissal from the lawsuit on the basis that Ms. Flowers could not prove that Wal-Mart had actual notice of the spill prior to her accident, or alternatively, “constructive notice” of the spill—that is the amount of time the original puddle existed prior to her fall. The trial court granted Wal-Mart’s motion for summary judgment and Ms. Flowers sought appellate relief.

The appellate court first explained that Louisiana’s Merchant Liability statute (pdf), requires that a claimant has the burden of proving, in addition to all other elements of her cause of action, that:

  1. The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
  2. The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
  3. The merchant failed to exercise reasonable care.

With respect to the second element, “constructive notice” means that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. To establish constructive notice there must be positive evidence that the condition existed for a period of time sufficient to place the merchant on notice of its presence. This evidence may be circumstantial or direct. Failure to prove any of the three requirements of La. R.S. 9:2800.6(B) is considered fatal to a claimant’s cause of action.  

The court then considered the following evidence on appeal. The first Wal-Mart associate to arrive on the scene stated that there was a large amount of water on the floor in the area where Ms. Flowers fell. And, the store employee who stacked the water jugs was responsible for checking the area would have seen the spill had it been present for any appreciable amount of time prior to the fall. The store’s assistant manager, who arrived on the scene later, testified that the puddle on the floor was approximately one to two steps away from the shelf. He also photographed the jug on the floor where Ms. Flowers fell, as well as the jug on the shelf that was missing water.

While the court acknowledged that a slow leak of a container could be proof of the requisite temporal element that the condition existed for such a time that it would have led to a discovery of the condition if reasonable care was exercised, in this case the court concluded that the size of the puddle (approximately ten to 12 inches in diameter) was not necessarily large enough to have been noticed by a Wal-Mart employee prior to Ms. Flowers’ fall. Further, Ms. Flowers acknowledged that the partially filled jug still had its cap and was in an upright position, which suggested that the spill may not have originated from that container. Nor was there any evidence as to when the area was last inspected prior to the fall that might have shown that Wal-Mart failed to exercise reasonable care by not discovering the puddle. The court disregarded the self-serving testimony of Ms. Flowers that because she did not see water leaking from the jug on the shelf or water on the shelf where the jug was placed, the jug must have been leaking for a considerable amount of time prior to her fall. In sum, the appellate court agreed that Wal-Mart was entitled to summary judgment because Ms. Flowers failed to offer sufficient evidence in support of her claim that Wal-Mart had “constructive notice” of the spill.

Take-Away: In a slip and fall case, a plaintiff has the burden of proving either actual or constructive notice of the allegedly defective condition. “Constructive notice” means that the condition exited for such a period of time that it would have been discovered if the merchant had exercised reasonable care. Mere allegations, denials, or inferences are insufficient to satisfy a plaintiff’s burden of proof.

This article was co-authored by Darleene Peters, counsel at Irwin Fritchie Urquhart & Moore LLC.

May I Sue the Manager?

This case addresses the potential liability of a store employee for injuries allegedly sustained by a store patron in a slip and fall. At the entrance to a Dollar General store, the child of a store patron, Sheila Longino, slipped and fell in a puddle of water and allegedly sustained serious knee injuries.  Ms. Longino sued Dollar General and its district manager on duty at the time of the accident, claiming that both the store and the manager knew or should have known about the puddle of water. 

Dollar General subsequently removed the case to federal court on the basis that there was complete diversity between the plaintiff and the store and that the manager was added to the lawsuit for the sole purpose of defeating diversity jurisdiction and thus keeping the case in state court. In response, the plaintiff sought to have the case returned to state court, arguing that the district manager was properly in the case.

In determining whether the store employee was properly joined in the lawsuit, the federal court addressed four distinct criteria that must be met under Louisiana law in order to hold a store manager or other employee liable for a customers’ injury on store premises, namely:

  1. The employer must owe a duty of care to the third person, the breach of which has caused the damage for which recovery is sought.
  2. This duty must be delegated by the employer to the particular employee.
  3. The employee must breach this duty through his own personal fault; and
  4. Personal liability cannot be imposed on the employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty to the plaintiff that was not properly delegated to another employee.

After considering these factors, the court found that the plaintiff had no claim against the store manager. Although Dollar General owed its patrons a duty to exercise reasonable care to keep its floors in a reasonably safe condition, there was no evidence that Dollar General delegated that duty to its manager. Rather, the court found, Ms. Longino improperly trying to place liability on the manager “simply because of his administrative responsibility for performance of some function of employment.”  

Take-Away: Although a merchant may owe its patrons a duty to exercise reasonable care to keep its floors in a reasonably safe condition, the merchant’s manager or other employee owes no duty to patrons simply because of his general administrative responsibility for performance of some function of the employment. 

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

"Show Me The Negligence!" General Negligence Law Not Required on Jury Verdict Form in a Premises Liability Case.

Kellianne Kelly-Williams went shopping at an AT & T store along with her two year old son. While Ms. Williams shopped, her son played in various parts of the store, eventually arriving at a part of the store where an inverted “V” plastic floor sign had been placed. In playing around the sign, the child pushed the sign against a window, causing it to fold up. The boy then dropped an object on the floor. As he bent over to pick up the object, the sign fell towards him, striking his head and causing him to fall down. The next day the child began experiencing seizures, which, according to Ms. Williams, continued as of the time of trial. Shortly after the seizures began, Ms. Williams filed suit on behalf of her son seeking damages due to the alleged negligence of AT & T and its employee in placing the sign in an unsecured manner in a high traffic area for customers. After trial, the jury returned a verdict for AT & T and Ms. Williams appealed in Kelly-Williams v. AT & T Mobility, LLC.

On appeal, Ms. Williams contended that the trial judge committed reversible error in failing to include a jury interrogatory regarding general negligence, as opposed to the principles articulated in La.R.S. 9:2800.6, Louisiana’s Merchant Liability Law. Ms. Williams also argued that the trial court erred in not including a jury interrogatory concerning the negligence of AT & T’s manager.

The appellate court found that a general negligence instruction was not necessary because the case was governed by the Louisiana Merchant Liability Act (“LMLA”) (pdf). Under this statute, the relevant inquiries are 1) whether the condition presented an unreasonable risk of harm, and whether the harm was reasonably foreseeable; 2) whether the merchant created or had actual or constructive notice of the condition prior to the occurrence; and 3) whether the merchant failed to exercise reasonable care in remedying the unreasonable risk of harm. The court noted that the jury interrogatories addressed these legal principles and an additional interrogatory on general negligence was not appropriate because there was no evidence of any negligence on the part of AT & T.

The appellate court also concluded the trial court did not err when it failed to include an interrogatory on the jury verdict form regarding the alleged negligence of the AT & T store manager. The court observed that Ms. Williams did not introduce any evidence of negligence on the part of AT & T’s store manager. As a result, there was no basis for instructing the jury on Louisiana general negligence principles.

Finally, with respect to two additional assignments of error—that the verdict form impermissibly allowed for the jury to apply different standards to AT & T and its employee in the apportionment of fault and that the trial court erred by failing to include an instruction on medical causation—the appellate court found that these assignments of error were moot because of the jury’s preliminary finding that the accident was not caused by an unreasonably dangerous condition. 

Take-Away:  In a slip and fall case, a plaintiff has the burden of proving that the condition at issue presented an unreasonable risk of harm that was reasonably foreseeable. A jury verdict form does not have to include an interrogatory on general negligence where the plaintiff has failed to introduce at trial any evidence of negligence on the part of the store owner or its employees.

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

The Mooty Blues: Plaintiff's failure to identify what caused tripping injury leaves premises owner singing!

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.

Wal-Mart Shopper Cannot Escape Her Burden of Proof

Lisa Taylor filed suit against Wal-Mart seeking to recover for injuries she allegedly sustained after she slipped on a wet substance on the floor near the checkout area of the Wal-Mart in New Orleans. Ms. Taylor’s lawsuit is governed by the Louisiana Slip and Fall Statute (pdf). Under this statute, Ms. Taylor is required to prove the following: (1) that a condition presented an unreasonable risk of harm to her and that risk of harm was reasonably foreseeable; (2) that Wal-Mart either created or had actual or constructive notice of the condition that caused the damage, prior to the accident; and (3) that Wal-Mart failed to exercise reasonable care. The Louisiana Slip and Fall Statute clearly imposes the burden of proof on Ms. Taylor. Therefore, she is required to show that either Wal-Mart actually knew of the existence of the liquid on which she allegedly slipped or that the liquid existed for some time period prior to her fall such that had Wal-Mart been exercising reasonable care, it would have discovered the liquid.

Wal-Mart filed a motion for summary judgment relying on the fact that, at her deposition, Ms. Taylor testified that she did not see a clear liquid on the floor and that she did not know how long the substance was on the floor before she slipped on it. Wal-Mart further relied on the fact that Ms. Taylor otherwise had no evidence that a liquid on the floor caused her to slip; nor did she have evidence demonstrating the length of time that the alleged liquid had been on the floor prior to her fall.

Ms. Taylor filed her own motion for summary judgment relying on a video recording of the location in which she fell covering the hour before she allegedly slipped and fell. Ms. Taylor argued that the video conclusively showed that for the hour prior to her fall, Wal-Mart made no effort to clean the liquid substance on which she slipped. She further argued that because the video doesn’t reflect the occurrence of a spill, the spill must have been in place before the commencement of the video recording, which would be over an hour before her fall. By making this argument, Ms. Taylor attempted to shift the burden of proof to Wal-Mart to prove that a liquid was not located on the ground. This burden shifting is a clear contravention of the Louisiana Slip and Fall Statute. 

The court denied Ms. Taylor’s motion for summary judgment and granted Wal-Mart’s motion for summary judgment relying on the following facts: (1) the recording did not show visual evidence of a wet substance on the floor, (2) the recording only showed the passage of time, (3) the recording did not show other people slipping or taking care to avoid a liquid, and (4) the recording did not reflect that any person attempted to clean or secure the area. Accordingly, the court determined that Ms. Taylor’s argument would require the court to draw a conclusion that is not reasonably supported by the evidence, and, therefore, failed to satisfy Ms. Taylor’s burden of proving that the liquid existed. Because Ms. Taylor failed to meet her burden of proof, Wal-Mart was entitled to a judgment as a matter of law.

Take-Away: In a slip and fall action, the plaintiff always bears the burden of proving that an unreasonable risk of harm existed. The plaintiff cannot attempt to shift the burden of proof by forcing the defendant to prove that an unreasonable risk of harm was not present.

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

Plaintiff Lets Case Roll Away

Bertha Gruver went shopping using a motorized cart provided by the Kroger Grocery Store. While shopping, Ms. Gruver partially dismounted from the cart and while one foot was on the cart and the other was on the ground she reached for a can on a shelf. At that time, according to Ms. Gruver, the cart rolled forward and caused her to fall.

Ms. Gruver filed suit against Kroger and John Duke, the store manager on duty at the time of the accident, alleging negligence in supervising and providing instructions for use of the cart. Ms. Gruver also sued the manufacturer of the cart under the Louisiana Product Liability Act (“LPLA”) (pdf) . The defendants filed a motion for summary judgment to dismiss all of Ms. Gruver’s claims, asserting that the accident and injuries were caused by Ms. Gruver’s own actions and that Ms. Gruver could not meet her burden of proof. The trial court granted defendants’ summary judgment motion and Ms. Gruver appealed.

The appellate court affirmed the judgment of the trial court in its entirety. In reaching its decision, the court noted that Kroger’s manager tested the cart’s brakes immediately after the accident and found no problems. The cart was then inspected by the store’s mechanic, who likewise found no problems with the cart. Although Ms. Gruver’s expert engineer theorized that the accident could have been caused by a safety switch on the seat, when he actually inspected and tested the cart the switch was working properly. Furthermore, plaintiff’s engineer testified that the cart was functioning as originally delivered and that the braking system, while an older system, was reliable. The Court found that the evidence presented by Ms. Gruver only suggested a potential for harm, not an actual harm, and therefore did not constitute an unreasonable risk of harm under Louisiana’s Merchant Liability Statute (pdf).

The appellate court also rejected Ms. Gruver’s claim that Kroger failed to provide operating instructions for the cart or train employees to provide such instructions. The appellate court noted that Ms. Gruver’s deposition testimony showed that she did not ask for instructions, read the instructions provided, or ask any Kroger employee for instructions to use the cart. 

The Court then reviewed Ms. Gruver’s product liability claims, which are governed by the Louisiana Product Liability Act (LPLA).  Ms. Gruver asserted two theories of liability under the LPLA; namely, unreasonably dangerous in design and failure to warn. With respect to the defective design claim, in order to satisfy her burden of proof Ms. Gruver would have to establish that there existed an alternative design available at the time of manufacture of the cart that would have prevented her fall and that the gravity of her potential injury outweighs the burden of adopting the alternative design. In support of her design defect claim, Ms. Gruver’s expert engineer opined that a ‘skirt guard’ on the grocery cart would have prevented the cart from rolling over people’s feet and that a dual electric/manual braking system would have stopped the cart immediately when the throttle is released. However, Ms. Gruver failed to present any evidence that the alternative design and braking system were available at the time the grocery cart was built. Nor was there any evidence that the risk of harm outweighed the cost of adopting the alternative design and braking system. As a final matter, the Court observed that Ms. Gruver’s engineer’s acknowledged that the cart’s brakes were “reliable” and that tests with a newer cart model did not show any “noticeable differences” in the resistance to rolling when the throttle is released. 

The Court then turned to Ms. Gruver’s failure to warn claim. As a threshold matter, the Court noted that Ms. Gruver presented no evidence pertaining to the adequacy of the cart’s warning label. Additionally, Ms. Gruver admitted that she did not read the warnings and therefore she simply could not demonstrate that a different warning would have resulted in her decision not to use the cart. Given these facts, the court found that Ms. Gruver failed to satisfy her burden of proof as to her failure to warn claim.

Take-Away: If motorized carts are made available to business customers, appropriate operating instructions should be openly available to the customers. Also, when a customer is injured while using a motorized cart, immediately following the accident the cart should be tested by the manager on duty and then as soon as possible by a qualified mechanic or engineer to document the condition of the cart at the time of the accident. 

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

Three is Better than Two - Store's Placement of Third Mat in High Traffic Area was Reasonable

On a day when a hurricane was passing over the area, Dianne Milton went to the Hurry Back convenience store to purchase some items. The store typically placed a single 4x6 commercial grade rubber-backed mat on each side of the entrance. Because of the weather conditions, an additional mat, 3x10 in size, was placed next to the inside 4x6 mat, roughly perpendicular to the door. 

Ms. Milton entered the store without incident and stood in line for a few moments prior to reaching the cashier. After her purchase, Ms. Milton turned to her right and started to move toward the door when her right foot caught the edge of the 3x10 mat, causing her to fall to the ground. She then quickly got to her feet and left the store. The entire incident was captured on the store’s surveillance cameras. The video showed that there were no bumps or wrinkles in the involved mat. Ms. Milton originally alleged that the mat was buckled where she tripped on it. However, after viewing the video, she revised her claim to allege that her foot slipped under the floor mat. 

After a three day trial, the trial judge granted judgment in favor of the store owner and Ms. Milton appealed the decision. Ms. Milton’s lead witness at trial was Bobby Urban, who was accepted as an expert in the areas of mat construction and the intended use of various types of mats in ordinary circumstances. Mr. Urban testified that placing a mat so close to the checkout counter was hazardous because most people, after making their purchase, pivot and drag their feet toward the door. He added that if a mat was necessary, it should have been placed 3 or 4 feet away from the counter or flush with it. Mr. Urban did, however, agree that during a major rain event, he would place more mats in areas where water was being tracked in.

On appeal, the court in Milton v. E&M Oil Company & State Farm Fire & Casualty Co. considered whether the store owner was liable for Ms. Milton’s injuries under Louisiana’s Merchant Statute (pdf). Specifically, the appellate court addressed the issue of whether the presence of the 3x10 mat presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable. The court affirmed the district court’s finding that the placement of the mat did not constitute an unreasonable risk of harm, noting that there was nothing inherently and unreasonably dangerous about the mat. And, the decision to move the mat on the day of the accident to an area where patrons would walk in with wet feet and dripping clothes was rational, outweighed the risk of taking no action, and was an adequate precaution to protect both the store and its patrons. The court also affirmed the trial court’s finding that the risk was not reasonably foreseeable. In doing so, the court noted that despite the heavy foot traffic, nobody else stumbled or tripped while walking over the mat. Also, the plaintiff’s expert acknowledged that the grade of the 3x10 mat is commonly used in other stores and the surveillance video clearly shows that the 3x10 was free of wrinkles, buckles or bumps, was lying flat on the floor, and was not fraying or unraveling. Based on these facts, the court found that the probability that a patron would trip and fall on the mat was minimal at best.

Take-Away: The mere fact that an accident occurs does not elevate the condition of the premises or thing to an unreasonable vice or defect.           

Plaintiff's Inexcusable Delay In Conducting Discovery Leads To Dismissal

After shopping at Toys “R” Us, Nancy Monson decided to walk from the Toys “R” Us parking lot to a restaurant across the street. Walking to the restaurant, Ms. Monson stepped in a hole in a grassy area between the Toys “R” Us parking lot and the street and injured her leg. Ms. Monson sued Toys “R” Us, its insurer, the property owner, the property manager, and the Parish of Jefferson in the action Monson v. Travelers Prop. & Cas. Insur. Co. alleging that the defendants failed to maintain the property in a safe condition. After Toys “R” Us and the Parish of Jefferson were dismissed on summary judgment and more than a year after she filed her lawsuit, Ms. Monson added Acadian Landscapes of Louisiana, Inc. (“Acadian”), the landscape maintenance company hired by Toys “R” Us to maintain its premises, as a defendant. In response, Acadian filed an exception of prescription (Louisiana’s equivalent of a statute of limitations defense), arguing that Ms. Monson’s claims were filed after the one-year prescriptive period applicable to tort claims had lapsed and that her lawsuit against it was untimely. The trial court granted the exception, and Ms. Monson appealed. 

On appeal, Ms. Monson argued that the original filing of her lawsuit had interrupted the prescriptive period as to Acadian, because it was jointly liable with Toys “R” Us, a timely sued defendant. In addition, she argued that the judicially created concept of contra non valentem agere nulla currit praescriptio (“contra non valentem”), which is Latin for, ‘prescription does not run against one who is unable to act,’ served to excuse her delay in suing Acadian. She argued, in relevant part, that her late addition of Acadian related back to the timely naming of Toys “R” Us and that Toys “R” Us had prevented her from timely learning the identity of the landscape maintenance company. 

The court of appeal affirmed the dismissal, finding that only when a joint torfeasor is timely sued and remains in the case will the facially untimely addition of another joint tortfeasor be considered timely. Because the claims against Toys “R” Us had been dismissed, there was no joint tortfeasor remaining for Ms. Monson to use in applying relation back. Therefore, her claims against Acadian were untimely. The appellate court also rejected her argument that contra non valentem excused her untimely addition of Acadian. The appellate court noted that the record established that Toys “R” Us had not prevented Ms. Monson from timely discovering Acadian’s identity. Instead, she had not even begun her discovery efforts to learn the identity of the landscape maintenance company until after the one-year prescriptive period had already run. Moreover, the court noted that under the “discovery rule,” Ms. Monson was deemed to know everything that she could have learned through reasonable diligence. Finding her failure to learn the identity of Acadian before the prescriptive period had run was inexcusable, the appellate court held that Monson’s claims against Acadian were properly dismissed. 

Take-Away: Defendants need to be vigilant in challenging their late addition to existing lawsuits; and the plaintiff bears the burden of proving that the late addition of a defendant was not due to her neglect.

Buggy Tracks Smear Wal-Mart's Summary Judgment Argument

In  Johnson v. Wal-Mart Louisiana, LLC the plaintiff, Ellen Johnson, was shopping at Wal-Mart and pushing her cart down one of the aisles. As she turned to proceed up another aisle, her cart began to slide and she slipped and fell, injuring her left knee.

Plaintiff filed suit against Wal-Mart and alleged that the sole cause of the accident was Wal-Mart’s failure to keep the floors free from spills. Wal-Mart filed a motion for summary judgment and argued that plaintiff could not carry her burden of proof under Louisiana’s Slip and Fall Statute, as interpreted by the Louisiana Supreme Court in  White v. Wal-Mart Stores, Inc.  In White, the Louisiana Supreme Court specifically addressed the question of constructive notice and held:

Though there is no bright line time period, a claimant must show that ‘the condition existed for such a period of time . .’ Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. This is not an impossible burden. 

In the Johnson case, the Court found that plaintiff had presented sufficient evidence to create a material issue of fact as to whether Wal-Mart had constructive notice of the spill. Specifically, plaintiff submitted evidence that the spill was on the floor for some period of time. The Court based its finding on the fact that both plaintiff and a store employee testified that the spill was spread in a circular puddle over about a three to four foot area and that plaintiff’s buggy left tracks in the puddle after it went through it. Additionally, a Wal-Mart employee was working nearby and was the first on the scene of the accident.

Take-Away:  As long as a plaintiff is able to produce evidence that a spill existed for some period of time, however uncertain the amount of time may be, courts will be reluctant to grant summary judgment in favor of the merchant.

Commonly a "Shield" - Rarely a "Sword": Summary Judgment on Store's Liability Reversed Where Issue of Material Fact Exists

A recent decision from Louisiana’s Third Circuit Court of Appeal indicates that a trial court should not grant summary judgment on the question of liability when there is an issue of comparative fault.   In Benniefiel v. Zurich American Insurance Co., the plaintiff was a customer at Stine Lumbar Company (“Stine”) in Sulphur, Louisiana.  She alleged that “as she was bending over a temporary fence around a Christmas tree exhibit, the landscape timbers gave way and she fell, thereby causing [her] damages and injuries.” The temporary barrier was built with cinder blocks and landscape timbers. The plaintiff used the temporary barrier to support her weight while apparently trying to reach some “paper” on the other side of the barrier and may have bumped it with parts of her body. This lawsuit was filed against Stine and its insurer in the 14th Judicial District Court for the Parish of Calcasieu. The plaintiff alleged that the temporary barrier was unsafe and/or improperly secured and that there was insufficient warning of the danger.      

After the case was tried to a defense verdict, the plaintiff moved for a judgment notwithstanding the verdict (JNOV) and, alternatively, a new trial. The trial court Judge, G. Michael Canaday, denied the JNOV but granted the plaintiff’s motion for new trial. Approximately a year later, the plaintiff moved for partial summary judgment on the issue of liability (pdf) which was then granted by the trial court.  This ruling was based on the court’s finding that the defendants’ expert’s opinions on the adequacy of the temporary barrier’s configuration were unreliable. The Louisiana Third Circuit Court of Appeal reversed, holding that there clearly existed a genuine issue of material fact on the issue of comparative fault which was not appropriately resolved via summary judgment.  For example, the Court of Appeal pointed out at least two means to reach the “paper” that didn’t involve touching the temporary barrier, and it indicated that a fact finder could assess fault to the plaintiff for merely putting her hand on a cinder block portion of the temporary barrier for support during her maneuver.

Take-Away: Summary judgment in favor of a plaintiff on the issue of liability is not appropriate especially where there is any possibility of comparative fault on the part of the plaintiff in bringing about her own injuries. Here, the fact that the customer deliberately came into contact with a temporary barrier that was not meant to be used for support and the fact that there were other means to have avoided the injury meant that the case must go to the jury for a proper assessment of liability.   This case re-affirms that the proper role of summary judgment is as a “shield” when claims lack evidentiary support and that it should rarely be employed as a “sword” to remove liability issues from consideration before trial. 

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

Summary Judgment Granted Where Plaintiff Could Not Establish How Long Oil Had Been on Floor

Establishing how long a dangerous condition has actually been present with any retail establishment continues to be a key element in establishing premises liability. In Abshire v. Hobby Lobby Stores, Inc., the plaintiff alleged that she slipped and fell on an oily substance which later turned out to be potpourri oil. Hobby Lobby moved for summary judgment on the basis that there was no evidence that any of its employees had spilled oil nor was there any evidence of how long the oil had been on the floor. Finding that the spilled oil was a condition of the premises, the court applied the provisions of the Louisiana Slip and Fall Statute (pdf) and held that the plaintiff had to make a positive showing of the existence of the condition prior to the fall. Whether the period of time that the condition existed was sufficiently lengthy to require discovery by a merchant was necessarily a fact question, however, the prerequisite of showing that it at least existed for some period of time prior to the fall was an essential element of the plaintiff’s case. Here, noting that the plaintiff did not know how long the potpourri oil had been on the floor prior to her fall and did not know how the bottle came to be on a different aisle from where it was stored, the Court granted summary judgment in favor of the store owner.

 Take-Away: This case reinforces the requirement that a plaintiff at least produce some evidence as to how long an allegedly dangerous condition existed on the floor of the premises before he/she can state a prima facie case of liability. Here, it was clear that the plaintiff had absolutely no evidence (she did not even file an opposition to the Motion for Summary Judgment) which would demonstrate how long that the substance at issue – potpourri oil – had been on the floor or how it had come to be found in an aisle other than where it was originally located. Based on the lack of sufficient evidence, the Court was correct in granting summary judgment. 

Store Potentially Liable Even Though Pallet was in "Plain View"

The fact that an object is in “plain view” will not automatically insulate a store owner from liability. This was demonstrated in a decision rendered in Butler v. Wal-Mart Stores, Inc. In Butler, the plaintiff tripped and fell over a pallet of merchandise while shopping at Wal-Mart. The pallet was located in the center of the aisle and was stocked approximately waist high with dog food.   As she walked between the pallet and the aisle shelving, she forgot the pallet was behind her and “went back” injuring herself. By all accounts the pallet in question was in plain view.

Ms. Butler filed suit against Wal-Mart in state court under the Louisiana Revised Statute 9:2800.6 (pdf), which sets forth the standards for merchant liability. After the case was removed to the United States District Court for the Eastern District of Louisiana, Wal-Mart moved for summary judgment on the basis that it had no duty to protect Ms. Butler from the pallet’s open and obvious condition. 

In seeking dismissal, Wal-Mart relied upon Taylor v. Wal-Mart Stores, Inc., an earlier federal court decision from the Western District of Louisiana decision which had found that a pallet stocked with merchandise was not an unreasonably dangerous condition. Notwithstanding the Taylor decision, Judge Sarah Vance denied summary judgment finding that there was no absolute rule “that merchants cannot be liable when a customer trips over a pallet in their stores.” Although the Judge acknowledged that merchants generally do not have a duty to protect against open and obvious hazards, she reasoned that a jury must still be given the opportunity to weigh a peril’s obviousness to the likelihood and magnitude of harm of a given risk. She also noted that that there was a question as to whether the pallet might have been placed unreasonably close to the shelf thereby forcing the customer to confront a dangerous condition to get access to merchandise on the shelves.  On this basis, she denied Wal-Mart’s motion for summary judgment.

Take- Away: Butler makes it clear that there is no such thing as a “slam-dunk” when it comes to open and obvious conditions. Although this court did not find that Wal-Mart was liable for its placement of the pallet in the store aisle, it concluded that this was an issue that would need to be decided by the jury. Store owners may want to consider insuring that pallets do not block access to store merchandise and/or waiting until after hours before placing the pallets in the store aisles if feasible.  

No Good Deed Goes Unpunished - The Case Of The Falling "Chicken Helper"

The case Jackson v. Brookshire Grocery Company demonstrates how apparently reasonable warnings by store employees can be used by a customer to prove the existence of an unsafe condition under Louisiana’s “falling merchandise” law. On March 9, 2007, Kenneth Jackson was shopping at Super One Foods in Alexandria Louisiana when several cases of merchandise fell on him. The products in the area where Mr. Jackson was shopping were displayed in cases, which were stacked on top of each other with the front of the cases removed so that their contents could be viewed. At the time of the incident, Mr. Jackson was reaching for a box of “Chicken Helper” from a case that was about six feet from the ground. As he reached for the box, two store employees observed the customer’s actions and shouted for him to “stop” or “look out.” However, before the customer could respond, the cases had already fallen on him, injuring his arm. 

 The Third Circuit affirmed the trial judge’s finding of liability in favor of the customer. In reaching its decision, the Court recognized that to prevail in a “falling merchandise” case, the customer must demonstrate that: (1) he did not cause the merchandise to fall; (2) that another customer in the aisle at that moment did not cause the merchandise to fall; and (3) that the merchant’s negligence was the cause of the accident. The Court agreed with the trial court’s conclusion that the mere fact that a customer reaches for a product resulting in another product falling on him does not necessarily lead to the conclusion that the customer caused the accident. Rather, the ultimate inquiry as to causation remains and the question of whether the customer caused the item to fall and whether the merchant’s negligence caused the accident must be explored further. The court thus affirmed the trial court’s finding that the store owner’s negligence was the cause of the accident given that the customer had no idea that several cases of merchandise would fall on him when he made his selection. Also, the court found that the fact that store employees shouted a warning to the customer as he was removing the product from the case proved that the store was aware that a premise hazard or dangerous condition existed at the time of the incident.

Take-Away:  This case demonstrates the difficult burden facing a merchant in cases involving falling merchandise. Unless strong evidence can be presented to demonstrate that the plaintiff was solely at fault in causing the falling merchandise, liability will likely be imposed on the store owner.

Destruction Of Surveillance Video Exposes Merchant To Liability

In Robertson v. Frank’s Super Value Foods Inc., a defendant store owner selectively edited a video surveillance tape that captured a slip and fall to eliminate pre-accident footage that would have established the defendant’s knowledge of a dangerous condition (pdf). After learning of the destruction of evidence that was potentially favorable to her case, the plaintiff amended her lawsuit to add claims for negligent or intentional destruction of evidence and impairment of civil action. 

The store owner sought summary judgment on plaintiff’s intentional destruction of evidence (pdf) claim, arguing that the plaintiff could not establish that the destruction was intentionally done to impede her case and that she could not establish that the store owner knew that she was going to file suit when it edited the tape. The trial court granted the motion, dismissed the plaintiff’s claims based on the destruction of evidence, and certified the judgment for appeal.

On appeal, the appellate court recognized that the plaintiff’s claims were broader than merely the intentional destruction claim and included impairment of her civil action and that, according to Louisiana tort law (pdf) the store owner may have breached a duty to preserve the evidence. The appellate court, however, noted that Louisiana courts have not clearly enunciated rules for determining under what circumstances a person will be liable for the destruction of evidence and that the Louisiana Supreme Court has not spoken on the issue. Regardless, the court held that determining the retail business owner’s intent or motivation for the selective preservation of surveillance footage was inappropriate for summary judgment procedure. 

In reviewing the facts, however, the court noted that the business owner was a sophisticated defendant with insurance to cover such accidents and access to attorneys, as well as an assumed awareness of the legal elements required to support a slip-and-fall claim and the statute of limitations for bringing such claims. The appellate court also noted that the store owner’s actions and timing in viewing and editing the video tape immediately after the accident were suspicious. Of particular interest: the store owner used a surveillance system that kept video for two weeks and then automatically re-used the tape, unless specifically directed not to do so; the store owner had exclusive custody and control over the video; the store owner directed an employee to review the tape immediately after the accident; and, the employee deleted the footage from before the accident and that would have shown whether the store owner had knowledge or constructive knowledge of the wet floor, while keeping accident and post-accident footage. Thus, the appellate court held that there were genuine issues of material fact that precluded a finding that the store owner’s actions were unintentional or made in good faith. Accordingly, the appellate court reversed and remanded back to the trial court for further proceedings.

Take-Away: This case demonstrates that a retail property owner in Louisiana may have an affirmative duty to preserve evidence related to an accident that may expose the owner to premises liability. This case suggests that liability for interference with a civil action may attach if the owner knew or should have known that a claim for injuries may be made and the property owner fails to preserve all relevant evidence.