To Grandmother's House We Go . . . At Your Own Risk.

On April 15, 2012, 37-year-old Angela Lawrence agreed to go over to her grandmother’s house and climb up on the roof to clear off some limbs and debris, as she had done several times before. Because the extension ladder Lawrence normally used had been stolen, her grandmother, Dorothy Dell Sanders, suggested that she use an A-frame ladder stored in Sanders’ shed. Lawrence initially suggested waiting to get an extension ladder, but ultimately used the A-frame ladder to get on the roof of the house without a problem. However, when Lawrence was coming down off of the roof, the ladder shifted and she fell to the ground, resulting injuries to her wrist, neck, and back. Lawrence then filed suit against Sanders and Sanders’ insurer, Allstate Insurance Company, in Louisiana state court, alleging negligence in failing to have safe equipment for her to use, failing to maintain the equipment in a safe condition, and providing faulty and damaged equipment. 

Sanders and Allstate moved for summary judgment, arguing that Lawrence was in the best position to determine if the ladder was unsafe before she used it to climb onto the roof. Lawrence countered by arguing that a genuine issue of material fact existed as to whether it was unsafe to use the ladder, and that the main question was whether Sanders was negligent for failing to have someone hold the ladder for her, or for failing to provide an extension ladder instead.   The trial court held that there was no genuine issue of material fact as to alleged defect in the ladder or Sanders’ alleged negligence, and granted summary judgment in favor of Sanders and Allstate. Lawrence appealed the decision to the Second Circuit Court of Appeals. Lawrence v. Sanders.

The Second Circuit first turned to the issue of Sanders’ alleged negligence under La. Code Civ. art. 2315 (pdf), beginning with an inquiry as to whether Sanders had a duty to hold the ladder for Lawrence, or find someone else to do so. At the outset the Second Circuit cited the Louisiana Supreme Court’s holding in Bufkin v. Felipe’s Louisiana, LLC, which held that “a defendant generally does not have a duty to protect against that which is obvious and apparent.” The Second Circuit also looked to the First Circuit’s decision in Barrow v. Brownell,  In Barrow, the court held that a handyman who fell off of a ladder while taking down Christmas lights was not owed a duty by the homeowner or her insurer, because the handyman alone decided when, where, and how to do his job, and his fall occurred as a result of the manner in which he did the job. Lawrence attempted to distinguish her case from Barrow, saying that Sanders instructed her to use the A-frame even after she expressed concerns about it. The Second Circuit rejected this argument, noting that in her deposition, Lawrence stated she had performed the task of cleaning her grandmother’s roof at least 20-24 times before. Further, Lawrence agreed to use the A-frame ladder, even though she Sanders was not upset with the suggestion to wait for an extension ladder. Finally, Lawrence admitted that she never asked anyone to hold the ladder. Based on these facts, the Second Circuit found that: (1) Lawrence was in a better position than Sanders to determine if the ladder was inadequate for the task; (2) the hazards in the use of the ladder were obvious and apparent to Lawrence; and (3) Lawrence decided when, where, and how to do the job. Therefore, the Second Circuit held that Sanders did not owe a duty to Lawrence and affirmed dismissal of the negligence claims. 

As to Lawrence’s allegation that her injuries were due to a defect in the ladder under La. Civ. Code art. 2317 (pdf), the Second Circuit began its analysis by noting that Lawrence had the burden to prove: (1) the ladder was in Sanders’ custody; (2) that the ladder contained a defect which presented an unreasonable risk of harm to others; and (3) that the defective condition caused the damage and Sanders should knew or should have known of the defect. 

As to the first element, there was no dispute that the ladder was in Sanders’ custody. But as to the second element, the Second Circuit held that Lawrence failed to meet her burden to establish the existence of a defect, an essential element to her claim. The Court held that there was no factual support for the claim that the ladder was defective, citing Lawrence’s deposition testimony that “she did not look at [the ladder]” before climbing on the roof or after her fall, and further stating that Allstate “didn’t say it was damaged or anything,” upon examining the ladder. The Court also rejected Lawrence’s attempt to argue that the ladder was too short for the job, ruling that the height of the ladder could not meet the definition of “an imperfection pos[ing] an unreasonable risk of injury to persons exercising ordinary care and prudence. Finally, as to the last element, the Court pointed to the fact that Lawrence used the ladder to safely get onto the roof, and failed to provide any evidence that the elderly Sanders, who remained in the house while Lawrence used the ladder, should have known of the defect. Therefore, the Second Circuit affirmed the trial court’s summary judgment against Lawrence on the allegations of defect. 

Take-Away: An owner is not automatically liable for injuries sustained by someone performing a task on his property, particularly if the one performing the task: (1) is in the best position to determine the risk of harm and (2) controls when, where, and how to do the task.     

 

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

Wet Paint! City Has a Duty To Adequately Warn Pedestrians Of Dangerous Conditions in Public Walkways

Mary Daigle, an employee of the Caddo Parish District Attorney’s Office, left her office at the Courthouse in downtown Shreveport to meet some friends for lunch. The City of Shreveport had recently painted the curbs lining the street where she exited and the paint was still wet. When Daigle stepped onto the curb, she slipped, fell, and severely aggravated a preexisting injury to her back. According to the City, the wet curbs were marked with cones warning of “Wet Paint.” Daigle maintains that the only cone placed in the vicinity at the time of the incident was located at the end of the block; she did not see it until after she fell.

Daigle filed suit against the City for her injuries related to the slip and fall. A bench trial was held and the court ruled in Ms. Daigle’s favor, awarding her damages for past medical expenses in the amount of $10,815.70, future medical expenses in the amount of $452,686.00, loss of enjoyment of life in the amount of $200,000.00, pain and suffering in the amount of $400,000.00, as well as the costs of court. The City of Shreveport appealed the judgment to the Louisiana Second Circuit Court of Appeal

Proof of liability on the part of a public entity is governed by La. Civil Code art. 2317 (pdf), as modified by La. R.S. 9:2800 (pdf). La. Civil Code art. 2317 provides in pertinent part, “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of things which we have in our custody[.]” Louisiana R.S. 9:2800(B) provides in pertinent part,

... [N]o person shall have a cause of action based solely upon the liability imposed under Civil Code Article 2317 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.

Because the curb was painted by its employees, the City clearly had knowledge of the vice or defect at issue and had reasonable opportunity to remedy the defect; there even existed a specific procedure for the placement of warning cones when painting a curb. The Second Circuit held that the City has a duty to maintain its public walkways in a safe condition for use, and that the City must warn of a dangerous condition. This warning must be sufficient to alert an ordinary pedestrian, considering all circumstances.  The issue before the Second Circuit was whether the City breached its duty by failing to adequately warn pedestrians of the danger it created by the wet paint on the curbs. The trial testimony indicated that cones were not placed near the accident site at the time of Daigle’s fall. The Second Circuit found that the trial court did not err in finding that the City failed to adequately warn of the danger it created by painting the curbs and affirmed the finding of liability.

The Second Circuit affirmed the award of damages, though it noted that the award of general damages for loss of enjoyment of life and pain and suffering was admittedly high.  The matter was remanded to the trial court, however, to comply with certain statutes that bear on the award of damages against the City. Specifically, Louisiana R.S. 13:5106(B)(1) (pdf) places a cap of $500,000.00 on general damages in a personal injury case against the state and its political subdivisions, including a city. Additionally, if future medical expenses are awarded, La. R.S. 13:5106B(3)(a) (pdf) provides that the trial court must establish a reversionary trust for the benefit of the claimant, out of which all future medical expenses are to be paid. The statute also regulates the procedure for such a trust. In addition, La. R.S. 13:5112(A) (pdf) requires the trial court to specify a dollar amount of court costs when awarded against the state or political subdivisions.

Take-Away: A City’s duty to warn pedestrians of a dangerous condition created by maintenance of its sidewalks is not satisfied by simply offering evidence that some type of warning was given; the warning must be sufficient to alert an ordinary pedestrian. 

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