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.