Wet Floor Sign Does Not Necessarily Prove Floor is Wet

Ms. Williams was shopping with her daughter at Super 1 Foods grocery store when she noticed a wet floor sign while she was walking in the frozen food section.  After she passed the sign, she slipped and fell on what she described as a “puddle of water” on the floor injuring herself. 

Ms. Williams sued the store, which subsequently was dismissed from the case via summary judgment.  On appeal, the court noted that in order for Ms. Williams to succeed on her claim under Louisiana’s merchant liability statute, La. R.S. 9:2800.6 (pdf), she had to prove 1) that the water on the floor existed and it presented an unreasonable risk of harm; 2) the store owner either created or had actual or constructive notice of the water; and 3) the store owner failed to exercise reasonable care.  Applying these factors to the evidence in the record, the appellate court affirmed the summary dismissal of Ms. William’s claims against the store owner.  In reaching its decision the appellate court considered the deposition testimony by two store employees, who both testified that the wet floor sign was placed in the area of the fall to warn customers of a faulty metal plate covering a floor drain.  Ms. Williams, in turn, pointed to the deposition testimony of two other store employees who stated that they did not recall the faulty metal plate or the wet floor sign.  She argued that the testimony of the store employees was inconsistent and that this inconsistency created a genuine issue of material fact.  The court disagreed and found that Ms. Williams failed to present any evidence that the wet floor sign was placed there because of the water on the ground (as opposed to a faulty metal plate covering a floor drain).  Ms. Williams also failed to otherwise satisfy the temporal element of her claim—that the alleged condition existed for some period of time prior to the fall. 

Take-Away:  The presence of a “wet floor sign” does not necessarily establish that there was water on the floor at the time of a patron’s fall, especially when there is an alternative explanation for the sign’s presence.  Under those circumstances, a patron must show that the allegedly defective condition (in this case water on the floor) existed for some period of time prior to a fall.

 

Circle K Wins Battle Over Undisturbed Stream of Water

On a rainy day in August, Vickie Buchanan slipped and fell on water at the Circle K store located on Howard Avenue in New Orleans, Louisiana. The source of water on which she fell was a one inch wide stream flowing from a cooler that stood near the entrance to the store. A warning cone had been placed near the entrance since it had been raining that day.

Because this case involved an alleged defect in the premises that produced a hazardous condition – as opposed to just a spill of liquid – Ms. Buchanan had two theories for recovery against Circle K: negligence and strict liability. While each theory of recovery has its own set of evidentiary requirements, both claims need evidence that a property owner had actual or constructive notice of the alleged water. In other words, Ms. Buchanan was required to present evidence that the Circle K employees actually knew that the water was on the floor or that the water was on the floor for a long enough time such that the Circle K employees should have discovered it in the exercise of reasonable care. A failure to produce evidence of either is fatal to Ms. Buchanan’s claims against Circle K.

According to Circle K, its employees inspected the store equipment on a daily basis, and its employees were trained to watch for hazards within the store. Circle K’s maintenance records indicated that there were no prior problems with the cooler in the days leading up to and on the day of the accident. Furthermore, Ms. Buchanan testified at her deposition that the stream of water appeared “undisturbed” and that she did not know how long it has been on the floor. Following the plaintiff’s deposition, Circle K filed a motion for summary judgment arguing that Ms. Buchanan could not establish liability since she had no evidence that Circle K knew or should have known of the water prior to the subject accident. In opposition, Ms. Buchanan failed to produce specific evidence that could refute or cast doubt on Circle K’s arguments. Accordingly, the court determined that because Ms. Buchanan would not be able to meet her burden of proof at trial, there was no genuine issue for trial and it dismissed her case against Circle K.

Take-Away: Regardless of whether a plaintiff brings a negligence or strict liability claim, there is no liability without evidence of actual or constructive notice of an unreasonably dangerous condition.

This article was authored by Lizzi Richard Showalter, an associate at Irwin Fritchie Urquhart & Moore.