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.

Slip and Fall Plaintiff's Case Slips On Statutory Burden of Proof

In Hoffman v. Jefferson Parish Hospital Services District No. 2, the plaintiff sued East Jefferson General Hospital (EJGH) for injuries she allegedly sustained during a slip and fall. More specifically, while visiting her twin children at the hospital’s neonatal intensive care unit, Ms. Hoffman entered the hospital’s break room seeking a cup of coffee and slipped on a wet substance on the floor, injuring her left knee.

After trial of the matter, the judge ruled in favor of EJGH dismissing Ms. Hoffman’s claims against the hospital. In its reasons for judgment, the court noted that EJGH had exculpated itself of any presumption of negligence by exercising reasonable care through its formal inspection and cleaning policies and furthermore the evidence submitted by Ms. Hoffman did not support a finding that EJGH had actual or constructive notice of the wet substance on the floor prior to the fall.

On appeal, Ms. Hoffman alleged that the trial court incorrectly found that (1) she was required to prove EJGH had actual or constructive notice of the wet substance because that standard of law does not apply to hospitals and (2) EJGH acted reasonably to discover and correct the dangerous condition. As to the first issue on appeal, Ms. Hoffman contended that Louisiana’s Merchant Statute, La. R. S. 9:2800 (pdf) and following, does not apply to hospitals such as EJGH and thus she did not have to prove actual or constructive notice of the wet substance on the floor. In support of her position, Ms. Hoffman relied on cases involving private facilities where the courts held that Louisiana’s Merchant statute did not apply to hospitals and nursing homes. 

EJGH distinguished these cases on the basis that the language of Louisiana’s Merchant Statute expressly applies to public entities. 

“no person shall have a cause of action . . . against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.”

The appellate court also cited Blount v. East Jefferson General Hospital, a prior slip and fall case against EJGH. In Blount, the court upheld summary judgment against a plaintiff who made a slip and fall claim against EJGH because the plaintiff had failed to demonstrate actual or constructive notice as required by the statute. Applying Louisiana’s Merchant Statute and Blount, the court held that because Ms. Hoffman had failed to demonstrate that EJGH had actual or constructive notice of the spill, she could not recover from the hospital.

The court also rejected Ms. Hoffman’s argument that the trial court erred in finding that EJGH had acted reasonably to discover and correct dangerous conditions in the break room. In doing so, the court noted that EJGH presented evidence that its employees regularly inspected public areas of the hospital and promptly remedied any spills or other dangerous conditions those inspections revealed.

Take-Away:  A person asserting a premises liability claim against a public entity of the State of Louisiana—including a public hospital—must prove under Louisiana’s Merchant Statute and underlying case law that the entity had actual or constructive notice of the dangerous condition that caused her injury.

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

City's Liability for Water Leak Affirmed but Plaintiff Hit With Comparative Fault

The importance of property owners acting promptly to address potentially dangerous conditions is demonstrated in a recent case from Jefferson Parish. In Nunnery v. City of Kenner (pdf), the plaintiff was working as a volunteer assistant volleyball coach at a local gym. Before practice began she noticed water collecting on the ground around the water fountain and brought it to the attention of the Gym Supervisor. Approximately an hour later, while dismantling the volleyball equipment, the plaintiff slipped and fell in the same general area where she had previously reported the standing water. According to the plaintiff, the water had spread from the fountain area from the time she originally reported it. After trial, Judge Donald Rowan found in favor of the plaintiff and awarded her $80,000 in general damages and over $16,000 in special damages. Finding that the standing water created a “dangerous condition” which had been reported to the city’s employee, the Louisiana Fifth Circuit Court of Appeal affirmed the finding of liability on the part of the City. The court, however, also found that the plaintiff “should have taken more care for her safety” given that she was aware of the condition and allocated 20% comparative fault to her.  

Take-Away: Even with the limitation of liability afforded under Louisiana Revised Statute 9:2800 (pdf), a public entity can still be held responsible where it clearly had actual or constructive notice of the condition causing the accident. Here, the fact that the water leak had been reported but not corrected in a timely manner was enough to impose liability although the appellate court was probably also correct in allocating some liability to the plaintiff given that she had been the one to report the condition in the first place.