Oh Craps: Casino Patron Who Slipped on Dice Is Out of Luck

Posted on January 19, 2012 by David Melancon

Patricia Richardson was visiting Boomtown Casino when she slipped and fell on a die on the floor. The accident occurred while Richardson was walking by the craps table and talking to her brother. Richardson filed suit against the casino operators, alleging that she sustained injury as the result of the fall – Richardson v. Louisiana-1 Gaming, et al. The defendants moved for summary judgment, asserting that Richardson could not show that they had breached their duty of care. Defendants also argued that they did not have actual or constructive knowledge of the die on the floor before Richardson’s fall. The trial court granted defendants’ motion on the grounds that Richardson assumed the risk. The trial court reasoned that casino patrons have a heightened duty to look for dice on the floor near a dice table.

On appeal, Richardson argued that the assumption of risk doctrine had been abolished in Louisiana. She also asserted that there was an issue of fact as to whether the accident was foreseeable. The appellate court agreed with Richardson that the assumption of risk doctrine had been abolished in Louisiana. But the court upheld the ruling of the trial court on the ground that the damage-causing condition had not existed for a period of time before Richardson fell. In doing so, the appellate court relied on the undisputed testimony of the games supervisor at Boomtown, Jada Muhammad. Muhammad testified that the die was thrown by another player, bounced off the table, and landed on the floor. Richardson stepped on the die immediately after it hit the floor. Because Richardson stepped on the die just after it landed, the court reasoned that the defendants did not have constructive notice of the condition as required under La. Rev. Stat. § 9:2800.6 (pdf). Thus, Richardson could not prevail on her negligence claim.

Take-Away: A premises owner is not liable where the condition that causes the plaintiff’s injury does not exist for some period of time before the occurrence.

This article was co-authored by Camala Capodice, a member of Irwin Fritchie Urquhart & Moore LLC.

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Steppin On A Crack May Break Your Mother's Back But It Will Not Break The Municipality's Bank.

Posted on August 18, 2011 by David Melancon

On the morning of June 15, 2005, Ms. Enola Wiltz and her husband brought their son to City Hall in Breaux Bridge, Louisiana to renew the son’s driver’s license. As Mrs. Wiltz was walking to the building, she stumbled, but did not fall, over a beveled crack in the sidewalk. As a result of the stumble, Mrs. Wiltz allegedly sustained leg and back injuries and incurred approximately $100,000 in medical expenses. Mr. and Mrs. Wiltz subsequently filed suit against the City of Breaux Bridge and its insurer. 

Following a bench trial, the judge ruled that the Wiltzes failed to prove their case because they did not submit sufficient evidence that the crack in the sidewalk posed an unreasonable risk of harm. Furthermore, there was no evidence to demonstrate that the City knew or should have known about the crack in the sidewalk prior to the accident. The Wiltzes then appealed the trial court’s judgment, contending that it was clearly wrong in failing to find that “a beveled cracked sidewalk, covered and disguised by grass growth on a major sidewalk leading directly into the main organ of commerce for the City causing plaintiff’s accident and injuries did not create an unreasonable risk of harm.”

Under Louisiana Revised Statutes 9:2800 (pdf), Louisiana’s Public Entity Liability Statute, in order to prevail at trial, the Wiltzes had to prove that (1) the City owned or had custody of the sidewalk; (2) the sidewalk was defective in that it created an unreasonable risk of harm to others; (3) the City had actual or constructive knowledge of the defect and failed to take corrective action within a reasonable time; and (4) Mrs. Wiltz’s injuries were caused by the defect. The only issues before the appellate court were elements 2 and 3, i.e. whether the sidewalk was defective and the knowledge (actual or constructive) of the city about the crack. In a unanimous decision, the Third Circuit, in the case Wiltz v. ABC Ins. Co., affirmed the ruling of the trial court.

As a preliminary matter, the court noted that under LSA-R.S. 9:2800 a municipality is not required to maintain its sidewalks in perfect condition. Rather, plaintiffs had the burden of proving that that the sidewalk at issue was not maintained in a reasonably safe condition for persons exercising ordinary care and prudence. In making this determination, all relevant moral, economic, and social considerations must be weighed. In affirming the trial court’s conclusion that the sidewalk did not pose an unreasonable risk of harm, the appellate court relied on several factors. First, courts in two earlier cases found that larger cracks did not pose unreasonable risks of harm. Second, there was no evidence that anyone had complained about the crack before the accident. To the contrary, two public officials, including the mayor, testified that they had no knowledge of prior complaints about and/or injuries involving the crack. Finally, the vegetation growing out of the crack didn’t obscure the entire crack, but actually indicated in itself the existence of a crack.

Take-Away: Plaintiffs have a heavy burden in cases against governmental entities to prove that cracks in their sidewalks pose an unreasonable risk of harm. The size of the crack, the degree it is obscured from view and the complaint and injury history related to the defect are all part of the analysis. 

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

 

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Plaintiff's Claims Lost By Hole In Evidence

Posted on December 14, 2010 by Ed Trapolin

While waiting for her child’s school bus to arrive at the intersection of two streets in Farmville, Louisiana, Carol Smithwick stepped off of the sidewalk onto the shoulder of the road. Upon doing so, she stepped in a shallow hole in the ground and injured her ankle. After the accident, Mrs. Smithwick filed a lawsuit against the City of Farmville in Smithwick v. City of Farmville.

Mrs. Smithwick sought to recover damages pursuant to La. R.S. 9:2800 (pdf), which limits the liability of public entities for defective or dangerous premises. In order to prevail, Mrs. Smithwick had to prove the following elements: (1) custody or ownership of the defective thing by the City; (2) that the defect created an unreasonable risk of harm; (3) that the City had knowledge of the defect; (4) that the City failed to take corrective action within a reasonable time; and (5) that the defective thing caused the plaintiff’s injury.

At the trial court level, Mrs. Smithwick was not able to prove one of the essential elements of her claim: that the City had actual or constructive knowledge of the hole that caused her injury. The court dismissed the case, and Mrs. Smithwick appealed.

On appeal, the court addressed the issue of whether the city had either actual or constructive knowledge of the hole. The appellate court defined “actual knowledge” as knowledge of dangerous defects or conditions, and defined “constructive knowledge” as the existence of facts which imply actual knowledge. The court noted that constructive knowledge is ordinarily established when plaintiffs prove that the defect existed over a sufficient length of time that reasonable diligence would have led to its discovery or repair.

Ms. Smithwick first argued that the City had actual knowledge of the hole, as evidenced by the deposition testimony of a city employee who stated that he had observed a hole while trimming the grass in the area. The court pointed out, however, that the employee’s trial testimony clarified that the hole he had noticed was in a different area next to a water line, and thus was not the hole that caused Ms. Smithwick’s injury. Ms. Smithwick also argued that the City had constructive knowledge of the hole. She argued that the city personnel responsible for trimming the grass in that area must have seen the hole prior to the accident. The court reasoned that because no one knew how or when the hole was formed, it was speculative to assume that it even existed when the grass in the area was last trimmed.

After considering all of the facts, the court concluded that there was no evidence that the hole had been noticed or should have been noticed by city employees.   The appellate court ultimately held that the trial court was not clearly wrong in finding that Ms. Smithwick failed to prove that the City of Farmville had actual or constructive knowledge of the hole. Accordingly, Ms. Smithwick could not recover damages from the City of Farmville.

Take-Away:  Although a person may be injured by a defect on public property, that person will not be able to recover if there is no evidence that the public entity had knowledge or constructive knowledge of the harmful defect’s existence.

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

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