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

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.

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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.

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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.

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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.           

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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.

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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.

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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 14^th 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.

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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. 

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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.  

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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.

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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.

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