A Merchant's Duty to Warn . . . of a Zip Tie?

On April 18, 2012, Benjamin Tomaso visited the Home Depot in Slidell, Louisiana.  He parked his car near the main entrance while his fiancé entered the store to return an item.  When he noticed lawn tractors near the entrance, he stepped out of his car and sat on one of the tractors to “check it out.”  A Home Depot employee asked Mr. Tomaso to remove himself from the tractor because there was insufficient room for the employee to push shopping carts between Mr. Tomaso’s parked car and the tractor.  While attempting to step down from the tractor, Mr. Tomaso fell.  At first, he was not sure what caused him to fall, but after he fell, he noticed a small zip tie on the floorplate of the tractor and concluded that it was the only possible cause of his accident.

Mr. Tomaso filed a slip-and-fall suit against Home Depot, U.S.A., Inc. (“Home Depot”), claiming that he suffered extensive injuries as a result of his foot being snagged by a hazard – the zip tie – that had negligently not been removed from the subject tractor.  Home Depot filed a motion for summary judgment, asserting that Mr. Tomaso failed to meet the requisite burden of proof governing negligence claims against merchants pursuant to La. R.S. 9:2800.6 (pdf).  Specifically, Home Depot argued that the zip tie was not a defective condition or otherwise inherently dangerous, and that Mr. Tomaso presented no evidence that any injury caused by a zip tie was foreseeable or that Home Depot should have known an injury could occur.  Additionally, Home Depot urged that Mr. Tomaso could not prove causation because he did not know what caused him to fall initially, and only after he saw the zip tie, Mr. Tomaso considered that to be the sole possible cause. 

In opposition to Home Depot’s motion, Mr. Tomaso introduced excerpts from the deposition of Home Depot’s assistant manager, who testified that the zip tie is placed on the tractor by the manufacturer to secure it during transit, and that the zip tie is usually removed by the customer after purchase.  In support of its motion, Home Depot introduced the affidavits of two Home Depot employees stating that neither employee had ever witnessed or taken an incident report where a customer tripped on a zip tie connected to a lawn tractor on display. 

Following a hearing, the trial court granted Home Depot’s motion and dismissed Mr. Tomaso’s action.  Mr. Tomaso appealed, asserting that the trial court erred in finding: (1) Home Depot was not negligent for failure to remove zip ties from the tractor before allowing Mr. Tomaso to climb on it for inspection; (2) the negligently left zip tie on the tractor was not a hazard; (3) that the negligently left zip tie was not an unreasonable risk of harm; and (4) that Home Depot’s supervisor employee was not negligent in ordering Mr. Tomaso to immediately remove himself from the tractor without warning him of the negligent hazardous zip tie as he was stepping down from the tractor.

Although Mr. Tomaso did not specify which substantive law he believed was applicable to his case, the Court of Appeal discussed two relevant statutes: merchant liability under La. R.S. 9:2800.6 and premises liability arising from ownership or custody under La. Civil Code art. 2317.1 (pdf).  The Court noted that the applicability of the merchant liability statute was questionable given that the accident took place outside the store entrance in the parking lot and did not arise from Home Depot’s failure to specifically keep its aisles, passageways, and floors in a reasonably safe condition.  Nonetheless, the Court found that summary judgment was appropriate under either statute because there was no evidence to suggest that Home Depot had knowledge of a danger or risk of harm created by the zip tie before Mr. Tomaso’s accident, and proof thereof was required under either theory of recovery.  In addition, the Court reasoned that Mr. Tomaso’s post hoc speculation that the zip tie caused his accident was insufficient to provide the factual support necessary to show he would be able to meet his burden of proving causation at trial.

Finding Mr. Tomaso failed to come forward with evidence sufficient to create a genuine dispute for trial on the essential elements of his claim, the Court of Appeal affirmed the trial court’s judgment granting summary judgment in favor of Home Depot and dismissing Mr. Tomaso’s claims.

Take-Away: To recover under either the merchant liability statute (La. R.S. 9:2800.6) or the premises liability statute based on ownership or custody (La. C. C. art. 2317.1), a slip-and-fall plaintiff bears the burden of proving that the defendant had actual or constructive knowledge of a danger or risk of harm before the plaintiff’s accident.  Additionally, post hoc speculation as to what caused an accident is not enough to show that a plaintiff would be able to meet his or her burden of proof at trial.

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

Without Causation, Plaintiff's Claims are Cut Loose (on the Dance Floor)

On May 20, 2011, Lisa Carney and her friend Daven Hill decided to hit the dance floor at the Celebrity Lounge in the Eldorado Casino Resort in Shreveport. While dancing at the Lounge, Carney and Hill observed some pieces of glass on the left side of the dance floor and told a bartender about it. Carney and Hill then returned to another area of the dance floor and had only been dancing a short while, when suddenly the top of Carney’s right foot was severely cut. Neither Hill nor Carney observed how Carney’s foot was cut, and Hill said she had not seen any glass in the area where they were dancing at that time. 

An Eldorado employee placed Carney in a wheelchair and she was taken out of the Lounge. At the employee’s request, Carney wrote a statement about the incident, writing that she was “dancing on stage and glass hit my foot.” An Eldorado Security Manager also filled out an incident report and noted Carney stated that “she was dancing and an unknown guest dropped a drink glass on the dance floor causing a piece of glass to hit the top of her right foot.”

The day after the incident, Carney made a visit to the emergency room, where the physician told her she had sustained a laceration to the top of her right foot with “impaired tendons.” Carney then filed a petition for damages against Eldorado Resort Casino in the First Judicial District Court for the Parish of Caddo. The trial court issued judgment in favor of Eldorado, dismissing Carney’s claims, finding that the Merchant Liability Statute (pdf), was inapplicable because Carney’s injuries were not caused by a “fall.” The trial court further found that Carney failed to produce evidence sufficient to meet the burden of proving that her injury was caused by broken glass on the floor, rather than by another patron dropping a glass near her or stepping on her foot. 

Carney appealed the judgment to the Louisiana Second Circuit Court of Appeals, Carney v. Eldorado Resort Casino Shreveport, arguing that the trial court should have applied the Merchant Liability Statute to the lawsuit because it involved the safety of a merchant’s premises. On appeal, the Second Circuit agreed with Carney in part. The appellate court found that the Merchant Liability Statute was applicable because the lawsuit alleged liability against a merchant for a patron’s injuries resulting from an accident on the merchant’s premises. However, the appellate court also held that the trial court properly found Subsection (B) of the statute inapplicable, because it addressed damages “sustained because of a fall,” and Carney’s alleged injury did not involve a fall. Applying Subsection (A) of the statute instead, the appellate court noted that although the merchant is required to keep the premises safe from unreasonable risks, “[a] merchant is not liable every time an incident happens.” Therefore, the appellate court agreed with the trial court’s ruling that Carney had the burden of proving that: (1) Eldorado owed her a duty; (2) Eldorado breached that duty; and (3) the breach was a cause of her injury. 

The appellate court then applied La. Rev. Stat. Ann. § 9:2800.6(A) to conduct a duty-risk analysis of Carney’s claim, which first required Carney to prove that Eldorado’s conduct was a “cause-in-fact” of the cut on her foot. This placed the burden on Carney to show that she would not have cut her foot but for Eldorado’s conduct. First, the appellate court looked to Carney’s own testimony that she did not know how her foot was injured, as well as her admissions that the cut might have resulted from another dancer dropping a drink on the floor, and that she “just assumed” the cut was from the glass which she and Hill had seen on the floor earlier. The appellate court then noted Hill’s testimony that the glass she and Carney had seen on the floor earlier was in a different area than where they were dancing when Carney’s foot was cut. This testimony of Carney and Hill, combined with the Eldorado Manager’s incident report, suggested to the appellate court that “[Carney]’s injury was caused by another patron who was not in [Eldorado]’s control and [Eldorado] could not have prevented the injury in the exercise of reasonable care.” Accordingly, the appellate court found no manifest error in the trial court’s decision that Carney failed to prove causation, and affirmed judgment in favor of Eldorado. 

Take-Away: A merchant is not per se liable every time a patron is injured on its premises; the plaintiff still has the burden of proving that the merchant’s conduct somehow caused the injury. And when the injury is caused by the conduct of another patron who is not in the merchant’s control, the merchant cannot be held liable.   

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

Inspector Has Fallen, and He Can't Recover (from Building Owner and Contractor)

John Sasser, a building inspector, fell while ascending temporary stairs that had detached from a building he was inspecting. The stairs were constructed by a subcontractor for use while the building was under construction. Sasser and his wife sued the owner of the building, the general contractor, the subcontractor, and the insurers for the contractors.

The building owner had hired the general contractor to manage the construction, and the general contractor had hired the subcontractor who constructed the temporary stairs. Pursuant to the construction contract, the building owner agreed to personally perform some of the construction work, but none of his tasks included erecting temporary stairs.

The court dismissed the plaintiff’s claims against both the building owner and the subcontractor because they could not meet their burden of proof against them under Louisiana law. Specifically, the plaintiffs could not show (1) that the owner exercised operational control over the subcontractor’s construction of the stairs, and (2) that the general contractor controlled or supervised the subcontractor’s construction of the stairs.

In Louisiana, a building owner is only held liable for injuries sustained because of ruin, vice or defect of the building if the plaintiff can show that the owner knew or, in the exercise of reasonable care, should have known of the vice or defect that caused the plaintiff’s injury, that the damage could have been prevented by the exercise of reasonable care, and that the owner failed to exercise reasonable care. If, however, that building is under construction, a different set of rules applies. In that instance, the owner will only be held liable if it is shown that he exercises operational control over the methods of operation or if he gives express or implied authorization for unsafe practices.

In this case, the plaintiffs failed to meet their burden of proving that the owner exercised operational control over the subcontractor’s construction of faulty stairs. The owner did not hire the subcontractor, did not supply the subcontractor with tools, and did not instruct or otherwise supervise the subcontractor in his construction of the temporary stairs. Consequently, he did not exercise operational control over the construction of the stairs, and thus, could not be held liable for plaintiff’s injuries.

Concerning plaintiffs’ claim against the contractor, Louisiana law affords only two circumstances in which a general contractor can be held liable for the offenses of a subcontractor in the performance of his contractual duties. They are: (1) if the subcontractor is performing ultra-hazardous work, or (2) if the contractor reserves the right to supervise or control the subcontractor’s work or otherwise gives express or implied authorization for unsafe practices. Here, the erection of temporary stairs is not ultra-hazardous work. Moreover, the subcontractor and his employees were not supervised by the contractor, and the contractor did not provide them supplies. Additionally, the subcontractor maintained his own liability insurance to cover his employees’ work. Thus, the plaintiffs failed to meet their burden of proving that the contractor supervised or controlled the workmanship of the subcontractor.

Take-Away: Be mindful that claims against a building owner for alleged injuries occurring while a building is under construction will be governed by different legal standards than the more common claims for injuries allegedly sustained because of the ruin, vice, or defect of an existing building.

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

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.

Objection to Form: Compound Jury Interrogatory Voids Jury Verdicts and Results in Case Being Decided by Appellate Court

In Bourque v. Essex Insurance Company, Patricia Bourque brought a negligence suit against a contractor who remodeled her home, alleging that she was injured by a light fixture that fell from the ceiling onto her head, neck, low back, and shoulder. The contractor, Donald Lack, had installed the fixture approximately four months prior to the accident. Ms. Bourque claimed that Mr. Lack installed the fixture incorrectly and that this incorrect installation caused her accident and resulting injuries. There were two jury trials, and both juries only answered the following interrogatory:

“Do you find, by a preponderance of the evidence, that an accident occurred on or about August 19, 2002, injuring the plaintiff, Patricia Bourque?” 

Both juries selected the answer “no.” 

On appeal, the Louisiana Third Circuit found that this interrogatory asked the jurors two questions at once: whether an accident occurred at all, and if so, whether Ms. Bourque was injured in that accident. The court found that the answer “no” could have indicated the jury’s finding that an accident occurred but did not injure Ms. Bourque, or that no accident occurred at all. This made it impossible for the court to determine whether nine jurors concurred on any finding of fact, and thus whether either jury actually reached a verdict. The court found that this jury instruction was “plain and fundamental error,” and it decided to conduct a de novo review and render judgment on the record instead of remanding the case for a third jury trial.

The court made two preliminary findings of fact: First, that Ms. Bourque had carried her burden to prove that an accident occurred; and second, a finding regarding the way in which Mr. Lack installed the light fixture. Regarding the first finding, the court reasoned that the record showed that Bourque’s testimony was credible and that her witnesses were not interested parties to the litigation. With respect to the second finding of fact, Mr. Lack offered uncorroborated testimony that the spring-loaded toggle bolts he used to install the fixture snapped into place properly upon installation. Despite this testimony, the court reasoned that both the plaintiff’s pictures, and the expert testimony about the type of holes the falling fixture left behind, proved otherwise. For that reason, the court found that the toggle bolts did not snap into place properly when Mr. Lack installed the fixture.

To determine whether to impose liability against Mr. Lack, the Third Circuit analyzed four elements as part of a duty-risk analysis: (1) Whether Mr. Lack’s conduct was a cause-in-fact (a substantial factor) in bringing about the harm to Ms. Bourque; (2) Whether Mr. Lack owed a duty to Ms. Bourque; (3) Whether Mr. Lack breached that duty; and (4) Whether the risk and the harm caused were within the scope of the protection afforded by the duty breached.

With respect to the first element, it was undisputed that the toggle bolts not snapping into place was a cause-in-fact of the fixture falling and of Ms. Bourque’s injuries, if any injuries occurred. Regarding the second element, the court reasoned that pursuant to Article 2769 (pdf) of the Louisiana Civil Code, Mr. Lack, as a contractor, had a duty to Ms. Bourque to properly install the fixture. With respect to the third element, the court found, based on all expert and lay testimony, that Mr. Lack had employed an improper installation method for the toggle bolts and that this constituted a breach of his duty to Ms. Bourque. Regarding the fourth element, the court noted that according to the record, the purpose of toggle bolts is to keep a fixture affixed to the ceiling. Therefore, the court found that Ms. Bourque’s injuries from a falling fixture were within the scope of Mr. Lack’s duty to properly install the fixture.

The court then sought to determine what injuries Ms. Bourque proved were caused by the falling fixture. Based on the evidence in the record, the court found that Ms. Bourque had established that the accident caused severe and constant headaches, neck pain and one associated surgery, low back pain and two associated surgeries, and shoulder pain and one associated surgery. The court also found that Ms. Bourque was entitled to recover for the cost of her medical bills, her inability to work, her past and future wages and benefits, future medical costs, pain and suffering, and loss of enjoyment of life. While Ms. Bourque suffered from preexisting degenerative disc disease, the court found that she was asymptomatic prior to the accident, and so she could recover for any aggravation of her preexisting condition that the accident caused. The total of these damage awards amounted to $1,202,689.78.

Two dissenting judges found that the court should not have conducted a de novo review because the jury interrogatory was not so confusing as to constitute “plain and fundamental error” that prevented the court from understanding the juries’ intentions. Additionally, the dissenting judges expressed concern that the plaintiff never objected to the interrogatory in either trial and did not include the interrogatory in her assignments of error in her appellant’s brief. In fact, it appeared that the plaintiff may have submitted the interrogatory herself.

Take-Away: Attorneys should ensure that jury interrogatories are clear and unambiguous so that they don’t form the basis of a reversal on appeal and potentially result in an appellate court, not a jury, deciding the case.

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

Wal-Mart Shopper Cannot Escape Her Burden of Proof

Lisa Taylor filed suit against Wal-Mart seeking to recover for injuries she allegedly sustained after she slipped on a wet substance on the floor near the checkout area of the Wal-Mart in New Orleans. Ms. Taylor’s lawsuit is governed by the Louisiana Slip and Fall Statute (pdf). Under this statute, Ms. Taylor is required to prove the following: (1) that a condition presented an unreasonable risk of harm to her and that risk of harm was reasonably foreseeable; (2) that Wal-Mart either created or had actual or constructive notice of the condition that caused the damage, prior to the accident; and (3) that Wal-Mart failed to exercise reasonable care. The Louisiana Slip and Fall Statute clearly imposes the burden of proof on Ms. Taylor. Therefore, she is required to show that either Wal-Mart actually knew of the existence of the liquid on which she allegedly slipped or that the liquid existed for some time period prior to her fall such that had Wal-Mart been exercising reasonable care, it would have discovered the liquid.

Wal-Mart filed a motion for summary judgment relying on the fact that, at her deposition, Ms. Taylor testified that she did not see a clear liquid on the floor and that she did not know how long the substance was on the floor before she slipped on it. Wal-Mart further relied on the fact that Ms. Taylor otherwise had no evidence that a liquid on the floor caused her to slip; nor did she have evidence demonstrating the length of time that the alleged liquid had been on the floor prior to her fall.

Ms. Taylor filed her own motion for summary judgment relying on a video recording of the location in which she fell covering the hour before she allegedly slipped and fell. Ms. Taylor argued that the video conclusively showed that for the hour prior to her fall, Wal-Mart made no effort to clean the liquid substance on which she slipped. She further argued that because the video doesn’t reflect the occurrence of a spill, the spill must have been in place before the commencement of the video recording, which would be over an hour before her fall. By making this argument, Ms. Taylor attempted to shift the burden of proof to Wal-Mart to prove that a liquid was not located on the ground. This burden shifting is a clear contravention of the Louisiana Slip and Fall Statute. 

The court denied Ms. Taylor’s motion for summary judgment and granted Wal-Mart’s motion for summary judgment relying on the following facts: (1) the recording did not show visual evidence of a wet substance on the floor, (2) the recording only showed the passage of time, (3) the recording did not show other people slipping or taking care to avoid a liquid, and (4) the recording did not reflect that any person attempted to clean or secure the area. Accordingly, the court determined that Ms. Taylor’s argument would require the court to draw a conclusion that is not reasonably supported by the evidence, and, therefore, failed to satisfy Ms. Taylor’s burden of proving that the liquid existed. Because Ms. Taylor failed to meet her burden of proof, Wal-Mart was entitled to a judgment as a matter of law.

Take-Away: In a slip and fall action, the plaintiff always bears the burden of proving that an unreasonable risk of harm existed. The plaintiff cannot attempt to shift the burden of proof by forcing the defendant to prove that an unreasonable risk of harm was not present.

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