A Video is Worth a Thousand Words--Video Footage Defeats Plaintiff's Efforts to Avoid Summary Dismissal of Her Lawsuit against Wal-Mart

Hubert v. Wal-Mart Louisiana, LLC, involved a slip-and-fall at a Wal-Mart store.  Wal-Mart surveillance camera footage captured a male shopper wearing a white baseball cap pushing a grocery cart down the dairy aisle.  It showed the shopper travel away from the camera and move further down the aisle before deciding to turn his cart around and retrace his steps at 7:30:42 p.m.  It then showed him push his cart a short distance and two seconds later stop the cart when he noticed something dripping from his cart onto his leg and the floor.  Next, the shopper immediately pushed his cart out of the aisle and proceeded without his cart to find a Wal-Mart employee (7:30:51-52 p.m.).  Seconds later Jessica Hubert fell in the exact location where the male shopper appeared to have noticed the spilled item—salsa from a broken jar—47 seconds earlier.

Hubert filed suit in Louisiana state court against Wal-Mart seeking damages for injuries she allegedly sustained when she fell. Wal-Mart removed the case to federal court on diversity jurisdiction grounds, following which it filed a motion for summary judgment.  Hubert opposed the motion.

The federal court judge, Judge Shelly Dick of the Middle District of Louisiana, first noted that Hubert’s claims were controlled exclusively by Louisiana’s “Merchant Liability Statute,” La. R.S. 9:2800.6 (pdf).  The issue therefore was whether Hubert had proven that Wal-Mart had constructive notice of the spill as required by La. R.S. 9:2800.6(B)(2) & (C)(1), so as to avoid summary dismissal of her claims.  Constructive notice is defined under the law to include a mandatory temporal element.  To prove constructive notice, Hubert had to establish through positive evidence that the condition existed for some period of time sufficient to place Wal-Mart on notice of its existence.

Hubert made a number of arguments in an effort to prove constructive notice.  She argued that the presence of a Wal-Mart employee in the immediate area of the spill prior to the fall established constructive notice and that a grocery cart’s wheel marks through the spill implicitly established that the salsa had been on the ground a sufficient period before the fall. Hubert also relied on a U.S. Fifth Circuit decision that she claimed supported her position because there the court recognized that the temporal showing in a slip-and-fall case could be based upon a reasonable inference drawn from circumstantial evidence, such as the size and nature of the spill. 

Judge Dick rejected each of Hubert’s arguments and granted Wal-Mart’s summary judgment motion.  In reaching its decision, the Court emphasized that Louisiana’s Merchant Liability Statute expressly provides that the mere presence of a store employee in the vicinity where the condition exists does not, by itself, constitute constructive notice.  And the evidence presented by Hubert did not otherwise support a finding of constructive notice.  Rather, surveillance video showed that the employee was not actually in close proximity to the spill and the spill only existed for around fifty seconds prior to the fall.  Hubert also admitted that the store employee had his back turned to the spill and was preoccupied with performing work tasks shortly before the fall.  Regarding the grocery cart tracks through the salsa, the Court noted that the video of the male shopper showed that he created the spill and then made the marks with his cart, which confirmed that the salsa was only on the ground for less than a minute prior to Hubert’s fall.  This evidence overcame any possible inference that the temporal element of the statute was satisfied.

Take-Away:  Strong video surveillance evidence documenting the exact timing of a spill and a patron’s subsequent slip and fall in the area of the spill can overcome much softer evidence or argument of a plaintiff such as the presence of a store employee in the “immediate vicinity” of the spill or any inferences drawn from the presence of buggy track marks through the spilled area.

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

 

 

"Damp Pants" Cannot Defeat Summary Judgment

In March 2013, plaintiff Rebecca Pouncy was shopping at Winn-Dixie and fell “while entering the store on standing water on the floor.” Three days after her fall, she sued Winn-Dixie and its employees under Louisiana’s Merchant Liability Statute, La. R.S. 9:2800.6 (pdf), alleging that they “did not place adequate mats out during a rain storm and did not warn customers or prevent the floor from becoming very slippery.”

In her deposition, Ms. Pouncy testified that she had “no idea” what caused her to fall and that she did not see any substance on the ground when she fell. She also testified that her clothes “felt damp,” but were not actually wet after the fall. Furthermore, her testimony indicated that there was a green wet floor sign “right at the entrance of the door,” and the sign was “always there” in the same spot when she visited the store.

Winn-Dixie filed a motion for summary judgment, arguing that Ms. Pouncy could not satisfy her burden of proof under La. R.S. 9:2800.6. Specifically, Winn-Dixie argued that, based on her deposition testimony, there was no way Ms. Pouncy could prove either the existence of an unreasonably dangerous condition in the store, or that Winn-Dixie had actual or constructive notice of an unreasonably dangerous condition. Ms. Pouncy opposed the motion, arguing that because she was not aware of all of the technical reasons a floor may be dangerously slick, the court should not rely on her deposition testimony. The trial court granted Winn-Dixie’s motion for summary judgment, and Ms. Pouncy appealed, arguing that there were genuine issues of material fact regarding the presence of water on the floor and Winn-Dixie’s constructive notice of the water.

The Fifth Circuit Court of Appeal affirmed and cited Alonzo v. Safari Car Wash, Inc., in support of its holding that Ms. Pouncy’s deposition testimony that her clothes were damp was insufficient to establish that she would be able to prove the existence of a condition that presented an unreasonable risk of harm. The Court also held that Ms. Pouncy’s testimony regarding the green wet floor sign was insufficient to prove that Winn-Dixie had constructive notice of an unreasonable risk of harm.

Take-Away: A plaintiff’s allegation that her clothes felt “damp” after falling on a merchant’s premises is insufficient to satisfy her burden of proving the existence of an unreasonably dangerous condition under Louisiana’s Merchant Liability Statute.

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

 

Taking the Guesswork Out of Proving Constructive Notice

On the night of April 5, 2012, Royanne Davis slipped and fell on a kitty-litter-type substance in the parking lot of the Spur and Deli gas station in Belle Chasse, Louisiana. Ms. Davis sued Cheema One, Inc. (“Cheema”), the owner of the gas station, alleging that it failed to properly maintain the premises, failed to discover and correct an unsafe condition on the premises, failed to exercise reasonable care to prevent unsafe conditions on the premises, and failed to warn her of the unsafe conditions. To prove her claim under Louisiana law, Ms. Davis first must show that an unreasonably dangerous condition existed in the Spur and Deli parking lot, and then she must present evidence that Cheema either created that condition, knew that the condition existed (i.e., actual notice), or should have known that the condition existed (i.e., constructive notice).

Following discovery, Cheema filed a motion for summary judgment asking the trial court to dismiss Ms. Davis’s claim. While Cheema admitted that a kitty-litter-type substance was in its parking lot on the night of Ms. Davis’s fall, Cheema nevertheless argued that the plaintiff had no evidence that it put it there or that Cheema had actual or constructive notice of its presence. Ms. Davis opposed the motion on two bases: (1) she argued that Cheema employees had constructive notice of the kitty-litter-type substance, and (2) she argued that the Cheema employees put the kitty-litter-type substance in the parking lot.

The court determined that Ms. Davis failed to prove constructive notice because she had no evidence that the kitty-litter-type substance was on the ground for such a period of time prior to her fall that Cheema employees would have discovered it had they exercised reasonable care. Her reliance on possibilities and speculative inferences about how long the kitty-litter-type substance was in the parking lot was not enough to meet her burden of proof.

Nevertheless, the court held that there was a genuine issue of material fact as to whether Cheema employees put the kitty-litter-type substance in the parking lot. Cheema did not contest Ms. Davis’s argument that kitty litter is generally used by gas stations to soak up fluid spills. Moreover, while Cheema produced a female employee who insisted she was the only employee on duty that night, Ms. Davis testified that she was assisted by a male cashier. Thus, Ms. Davis presented enough evidence to create a genuine issue of material fact as to whether Cheema created the condition. Ms. Davis was permitted to pursue her claim on this basis only.

Take-Away: Speculation is not enough for a constructive notice claim. There must be affirmative proof that an unreasonably dangerous condition existed for a certain period of time prior to the accident.

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

Close Proximity Does Not Mean Constructive Knowledge

Plaintiff, Elouise Burns, filed a personal injury lawsuit due to a slip and fall at a Winn-Dixie grocery store.  Burns alleged that her fall was due to an accumulation of water or other substance on the floor in the ice cream aisle.  Winn-Dixie filed a summary judgment motion arguing that the plaintiff failed to meet the requisite burden of proof governing negligence claims against merchants, which is set forth in La. R.S. 9:2800.6 (pdf).  In particular, Winn-Dixie argued that plaintiff failed to show that its employees created or had actual or constructive notice of the alleged unreasonably dangerous condition, a necessary element of her claim.  

In support of its motion, Winn-Dixie used the plaintiff’s deposition testimony to demonstrate that she did not see the liquid on the floor prior to her fall and that she had no evidence of how long the liquid had been on the floor.  In opposition, the plaintiff attempted to demonstrate constructive notice of the liquid by noting that the location of her slip and fall was in close proximity to the store’s cash registers and the view from that area was clear and unobstructed.  In support of her constructive notice argument, plaintiff relied upon the affidavit of a law clerk from her attorney’s firm, who visited the store almost two weeks after Winn-Dixie filed the Motion for Summary Judgment. Also, at the hearing on the motion the plaintiff introduced her responses to Winn-Dixie’s written discovery, as well as Winn-Dixie’s responses to her written discovery in an effort to show there were no “wet floor” signs in the area where she fell. After considering this evidence, the trial court granted summary judgment in favor of Winn-Dixie and dismissed the plaintiff’s claims.  The plaintiff then filed a Motion for New Trial arguing the following:  (1) the grant of summary judgment was contrary to the law and evidence; (2) plaintiff had newly discovered evidence to defeat summary judgment; and (3) granting of a new trial was within the trial court’s discretion and in the interest of justice.  The trial court denied the plaintiff’s Motion for New Trial and plaintiff appealed. 

La. R.S. 9:2800.6 governs merchant liability for slip and fall cases and requires that a claimant has the burden of proving, in addition to all other elements of his or her cause of action, the following elements:  1) that the condition presented an unreasonable risk of harm to the claimant and the risk of harm was reasonably foreseeable; 2) that the merchant either created or had actual or constructive notice of the condition causing the damage, prior to the occurrence; and 3) that the merchant failed to exercise reasonable care.  Constructive notice is defined as the condition must have existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.  Although there is no specific time period, “positive evidence” is required to demonstrate constructive notice to meet this burden. 

The appellate court was critical of the evidence plaintiff presented in her opposition to Winn-Dixie’s motion.  First, the court noted that the law clerk’s affidavit offered no proof that the clear liquid on the floor—the alleged cause of the plaintiff’s fall—had been there for a period of time sufficient to create the requisite constructive notice.  Next, plaintiff’s “close proximity” argument was insufficient to show constructive notice as the statute specifically provides that an employee’s presence alone does not suffice as constructive notice. Further, the plaintiff’s “newly discovered evidence” argument was discredited.  This evidence consisted of an undated affidavit of an alleged witness who claimed she saw the plaintiff slip in the aisle, that there were several employees in that vicinity, that one of the employees commented about the lack of signage, and that the freezer had been leaking for quite a while.  The same witness—the plaintiff’s former daughter-in-law—had given a written statement six months after the accident that failed to mention any of these “facts.”  The appellate court concluded that the plaintiff could have obtained the affidavit prior to the summary judgment hearing, and further concluded that the trial court’s refusal to consider these unsworn and unverified written statements, which were not of sufficient evidentiary quality to be considered, was correct. In sum, the plaintiff failed to come forward with sufficient evidence in support of her claim that the store owner had actual or constructive notice of the alleged hazardous condition.   

Take Away:  In slip and fall cases where a claimant is attempting to establish that a store owner had constructive knowledge of a hazardous condition, the claimant must provide positive evidence to show the period of time that that the hazardous condition existed and that this time period was sufficient to place the merchant on notice of the condition.

This article was co-authored by Darleene Peters, Counsel at Irwin Fritchie Urquhart & Moore LLC.

Once a Problem, Always a Problem

Jennifer Louviere was shopping in a Wal-Mart when she slipped and fell in a clear substance that she believed came from water dripping from the ceiling. Ms. Louviere, and her aunt who was with her at the time, were unaware of how long the water had been on the floor, and they did not see any buggy tracks or foot prints in the puddle of water. They also did not know if anyone from Wal-Mart knew the substance was on the floor prior to the fall.

Ms. Louviere sued Wal-Mart and alleged that the company was negligent in (1) failing to properly inspect the area where the accident occurred, (2) failing to properly maintain and inspect and clean the premises, (3) failing to warn of this unreasonably dangerous condition, (4) failing to maintain, inspect and repair the ceiling/roof, and failing to warn Ms. Louviere and other customers of same, and (5) failing to use reasonable and prudent care under the circumstances. Ms. Louviere asserted claims under Louisiana’s merchant liability law, in strict liability, and the doctrine of res ipsa loquitur

Wal-Mart sought summary dismissal of the case on the grounds that Ms. Louviere could not establish (1) the existence of a dangerous condition or (2) that Wal-Mart either created the condition or had actual constructive notice of the condition prior to the accident. Wal-Mart further maintained that Ms. Louviere’s strict liability and res ipsa loquitor claims should be dismissed because Revised Statute 9:2800.6, Louisiana’s Merchant Liability Law, is the sole theory of recovery available to her.

The court agreed that Ms. Louviere could only bring a claim under Louisiana’s Merchant Liability law and dismissed her claims in strict liability and under the doctrine of res ipsa loquitur. As to Ms. Louviere’s surviving claims, the court considered evidence presented by Ms. Louviere that Wal-Mart created the condition that caused the accumulation of water in the area where she fell and Wal-Mart was on notice of the leaks, yet failed to take any preventative measures. Ms. Louviere noted that she saw water dripping from the ceiling at the time of her fall and that Wal-Mart employees testified that the store had a history of ceiling leaks. Ms. Louviere also relied on the testimony of her expert who opined that the leak that caused Ms. Louviere’s accident was from the rack house and/or air conditioning tubes in the ceiling, and that there was a long pattern of leakages related to this part of the building. Based on this evidence, the court found that there were genuine issues of material fact for trial as to whether or not Wal-Mart created the hazardous condition that caused the alleged incident, and/or whether or not Wal-Mart had constructive notice of the hazardous condition that caused Mr. Louviere’s accident. 

Take-Away: In a slip and fall case, although a plaintiff may not be able to establish that a premises owner such as Wal-Mart either created or had notice of the actual dangerous condition that caused the accident, a plaintiff may be able to survive summary judgment dismissal if she can establish a history or long standing pattern of similar dangerous conditions in the area where the slip and fall occurred.

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.

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

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.

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

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.