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

Posted on July 13, 2012 by David Melancon

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.

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

Posted on July 20, 2009 by Quentin Urquhart

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. 

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