Existence of Oil Slick Alone Not Enough

On January 3, 2009, Karen Finley slipped and fell on an oil slick in the parking lot of a Racetrac convenience store in Shreveport, Louisiana. Finley sued Racetrac under La.R.S. 9:2800.6 (pdf), which requires plaintiffs to prove several elements in order to succeed on a premises liability claim. To satisfy the statute’s second element, a plaintiff must establish that the defendant created the dangerous condition, knew of it, or had constructive knowledge of it prior to the accident.

A defendant has constructive knowledge of a dangerous condition when the circumstances show that he should have known of the condition. When relying on constructive knowledge, a plaintiff must show that the dangerous condition existed for a period of time sufficient to place the defendant on notice of its existence. A plaintiff is not required to prove with eyewitness testimony that the hazardous condition existed for a certain number of minutes or hours. Instead, the court can infer from the circumstances surrounding the fall that it is more probable than not that the condition existed long enough prior to the fall for the defendant to have discovered and corrected it.

Finley alleged that Racetrac either knew or should have known of the dangerous condition the oil slick created, and she claimed her injuries would not have occurred if Racetrac had taken reasonable steps to clean up the oil. Despite Finley’s accusations, the trial court granted summary judgment in favor of Racetrac. The court found that Finley was unable to show Racetrac knew or should have known of the oil slick prior to her fall. The court also found that Finley was unable to establish the amount of time the hazardous condition had been present; and as a result, the court could not infer that Racetrac had sufficient notice of the hazard. Finley appealed the judgment of the trial court.

On appeal, in an attempt to establish the amount of time the oil slick existed prior to her fall, Finley relied on a cell phone photograph showing that the oil had begun to soak into the concrete at the time she slipped on it. She claimed the photograph showed that the oil was present for a sufficient amount of time to place Racetrac on notice of the dangerous condition. However, the appellate court disagreed with Finley and found that the photograph, which was taken after her fall, proved only that the oil slick existed. Because Finley could not prove Racetrac had constructive notice of the dangerous condition, the appellate court affirmed the trial court’s conclusion that Racetrac was entitled to summary judgment.

Take-Away:  In a slip and fall case, the mere existence of a dangerous condition is insufficient to establish liability against a premise owner where there is no evidence of how long the condition existed prior to the accident or that the premise owner knew of the condition before-hand.

This article was co-authored by Mike Boyd, a summer associate at Irwin Fritchie Urquhart & Moore LLC

Slip And Fall Case Goes Down The Drain When Plaintiff Cannot Show Actual Or Constructive Knowledge Of Wet Floor

On a rainy day, Barbara Price entered the Waterworks office to pay her bill. Upon entering, she slipped on water in the lobby and fell injuring her leg and back. In Price v. Waterworks District #1, et al., Mrs. Price sued the Waterworks and the Parish government for her injuries. The defendants filed a motion for summary judgment (pdf), arguing that there was no genuine issue of material fact that would preclude the granting of judgment in their favor. According to the defendants, both sides agreed that: it was raining when Mrs. Price entered the building; the defendants did not have a written inspection policy regarding inspecting the condition of the floors; there was no “wet floor” warning sign placed inside the building; Mrs. Price slipped on water inside the building; and, no one reported water on the floor prior to her slip and fall.  The defendants also argued that Mrs. Price failed to meet her burden under Louisiana public entity premises liability law of establishing that the wet floor was actually or constructively known to the defendants and that they had failed to timely act to correct the dangerous condition (pdf).

The trial court granted the motion for summary judgment and Mrs. Price appealed, arguing that a genuine issue of material fact existed as to the defendants’ actual or constructive knowledge of the wet floor. Mrs. Price claimed that the fact that it was raining and that the defendants did not have an inspection policy for the floors was sufficient to create an issue for trial and avoid summary judgment. The appellate court disagreed, citing Louisiana Supreme Court precedent that the absence of an inspection plan does not suggest that an employee of a public entity has actual knowledge of a dangerous condition. Accordingly, the trial court was correct in holding that defendants’ lack of an inspection policy for the floors did not prevent the granting of the defendants’ motion for summary judgment. The appellate court further noted that Mrs. Price had not shown that the defendants’ had constructive knowledge of the wet floors by pointing to facts that would support an inference that the defendants had actual knowledge of the wet floor.  Therefore, the summary judgment was affirmed. 

Take-Away:  Simply because a plaintiff slips on a wet floor will not impose strict liability on a public entity. Furthermore, unless the plaintiff can make a prima facie showing of the public entity or property owner’s actual or constructive knowledge of the wet floor, Louisiana courts will not hesitate to grant summary judgment in favor of a public entity. 

French Fry "Rim" Sinks Restaurant's Motion for Summary Judgment

Although the Louisiana Slip and Fall Statute (pdf) provides a narrow avenue of potential liability, the Louisiana First Circuit’s May 8, 2009 decision in Guillory v. Outback Steakhouse of Florida, Inc. (pdf) demonstrates the relatively low evidentiary threshold that is needed to circumvent the defenses supplied under the statute. On January 28, 2006, Geraldine Guillory visited an Outback Steakhouse in East Baton Rouge Parish.  During her visit,  Ms. Guillory excused herself to visit the restroom and upon returning, Guillory allegedly slipped on a french fry and fell to the floor. A waitress who was standing at a nearby table picked up the remains of the potato while another customer helped Ms. Guillory to her feet. Guillory and her husband filed suit against Outback alleging various injuries associated with the fall. 

After the completion of discovery, Outback filed a Motion for Summary Judgment on the basis that the Plaintiffs could not offer sufficient evidence that it had knowledge of the alleged dangerous condition (the french fry) as required under Louisiana Revised Statute 9:2800.6 (pdf). The trial court agreed and granted the Motion for Summary Judgment.  On appeal, however, the First Circuit disagreed and reinstated the case against Outback. After reciting the Louisiana Slip and Fall Statute, the First Circuit recognized that a merchant cannot be liable for injuries associated with a slip-and-fall unless the plaintiff can demonstrate that the slip-and-fall was caused by a “dangerous condition” on the property, that the merchant had actual or “constructive” knowledge of the condition and, despite this knowledge, failed to exercise reasonable care. Because the plaintiffs could produce no evidence as to how the french fry ended up on the floor, the First Circuit correctly reasoned that the case would turn on whether the plaintiffs had provided sufficient evidence to demonstrate “constructive” knowledge.  Citing the Louisiana Supreme Court’s decision in White v. Wal-Mart, the First Circuit reasoned that in order to demonstrate “constructive” knowledge, the plaintiffs need only show that the condition existed for “some period of time.” 

Applying the “some period of time” standard, the First Circuit re-analyzed the testimony of the case and reversed Outback’s dismissal. The First Circuit relied principally upon the testimony of two Outback employees who testified that the french fry was “stuck to the floor” and that a “rim” had remained after it was picked up. This, together with hearsay statements of patrons that they had “seen” a piece of french fry on the floor, was sufficient for the First Circuit to conclude that there existed sufficient evidence to raise a genuine issue of material fact as to whether Outback had “constructive” knowledge of the dangerous condition. 

Take-Away:  This case demonstrates that even the slightest evidence can sometimes defeat a summary judgment motion. Although the plaintiffs could not demonstrate that any Outback employee was responsible for the fry falling to the floor, could not demonstrate that an Outback employee had seen the fry and failed to respond to it, could not demonstrate exactly when the fry fell to the floor, and offered no evidence of how it could have become stuck for a sufficient amount of time to form a “rim,” these deficiencies were not so great as to preclude the case from going to trial.