On the night of April 5, 2012, Royanne Davis slipped and fell on a kitty-litter-type substance in the parking lot of the Spur and Deli gas station in Belle Chasse, Louisiana. Ms. Davis sued Cheema One, Inc. (“Cheema”), the owner of the gas station, alleging that it failed to properly maintain the premises, failed to discover and correct an unsafe condition on the premises, failed to exercise reasonable care to prevent unsafe conditions on the premises, and failed to warn her of the unsafe conditions. To prove her claim under Louisiana law, Ms. Davis first must show that an unreasonably dangerous condition existed in the Spur and Deli parking lot, and then she must present evidence that Cheema either created that condition, knew that the condition existed (i.e., actual notice), or should have known that the condition existed (i.e., constructive notice).
Following discovery, Cheema filed a motion for summary judgment asking the trial court to dismiss Ms. Davis’s claim. While Cheema admitted that a kitty-litter-type substance was in its parking lot on the night of Ms. Davis’s fall, Cheema nevertheless argued that the plaintiff had no evidence that it put it there or that Cheema had actual or constructive notice of its presence. Ms. Davis opposed the motion on two bases: (1) she argued that Cheema employees had constructive notice of the kitty-litter-type substance, and (2) she argued that the Cheema employees put the kitty-litter-type substance in the parking lot.
The court determined that Ms. Davis failed to prove constructive notice because she had no evidence that the kitty-litter-type substance was on the ground for such a period of time prior to her fall that Cheema employees would have discovered it had they exercised reasonable care. Her reliance on possibilities and speculative inferences about how long the kitty-litter-type substance was in the parking lot was not enough to meet her burden of proof.
Nevertheless, the court held that there was a genuine issue of material fact as to whether Cheema employees put the kitty-litter-type substance in the parking lot. Cheema did not contest Ms. Davis’s argument that kitty litter is generally used by gas stations to soak up fluid spills. Moreover, while Cheema produced a female employee who insisted she was the only employee on duty that night, Ms. Davis testified that she was assisted by a male cashier. Thus, Ms. Davis presented enough evidence to create a genuine issue of material fact as to whether Cheema created the condition. Ms. Davis was permitted to pursue her claim on this basis only.
Take-Away: Speculation is not enough for a constructive notice claim. There must be affirmative proof that an unreasonably dangerous condition existed for a certain period of time prior to the accident.
This article was co-authored by Lizzi Richard Showalter, an associate at Irwin Fritchie Urquhart &Moore LLC.