Louisiana Premises Liability Blog : Louisiana Premises Liability Lawyer & Attorney : Irwin Fritchie Urquhart & Moore Law Firm : LA Slip & Fall, Property Security : New Orleans, Baton Rouge

In Fluence v. Marshall Bros. Lincoln-Mercury Inc., Larry Fluence, a worker who was part of a paving crew that was pouring asphalt pavement at the Marshall Brothers car dealership’s lot, fell into an open manhole and severely injured his back. Mr. Fluence sued the property owner, Marshall Brothers, and the subcontractor that installed the underground drainage system and left the manhole cover off, Labiche Plumbing Inc. (Labiche). 

Both Marshall Brothers and Labiche moved for summary judgment on the grounds that (1) they did not breach a duty to Mr. Fluence and (2) the open manhole did not present an unreasonable risk of harm. It was undisputed that Mr. Fluence was part of a crew that was hired to pave around the new drainage system, including the manhole, and that he had inspected the property on the morning of the accident and was aware of the open manhole. Moreover, the manhole was clearly visible from 20 feet away. Given these facts, Marshall Brothers and Labiche argued that the manhole was open and obvious and did not present an unreasonably dangerous condition to Mr. Fluence. In response, Mr. Fluence contended that he forgot about the hole later in the day when he was walking backwards in the parking lot and “smoothing off” the asphalt. And, although he should bear some fault for his carelessness, fault should also be assigned to Marshall and Labiche. The trial court disagreed and granted summary judgment in favor of Marshal Brothers and Labiche.

On appeal, Mr. Fluence argued that Marshall Brothers breached a duty to protect him or to warn him of a known dangerous condition while he was on the property. He further argued that Labiche had a duty to warn him of the condition, replace the manhole cover, or place a barrier to prevent people from getting near the hole. The appellate court noted that although a landowner owes a duty to people entering its premises to discover unreasonably dangerous conditions and to either repair them or warn of their existence, there is no duty to warn of an open and obvious condition. Quoting Louisiana case law, the court stated that whether a condition is unreasonably dangerous is determined by considering: “(1) the utility of the complained-of condition; (2) the likelihood and magnitude of the harm (which includes the obviousness and apparentness of the harm); and (3) the nature of the plaintiff’s activities in terms of its social utility or whether it is dangerous in nature.” Finding that Mr. Fluence admitted knowing of the open manhole prior to the accident and that his job entailed patching the holes up to and around the open manhole, the court held that Marshall Brothers and Labiche owed no duty to repair the condition or warn Mr. Fluence  about the open and obvious condition. Accordingly, the appellate court affirmed the trial court’s ruling.

Take-Away: Property owners who hire workmen to perform work and repairs on their property may avoid liability for injuries suffered by the workmen if the injury results from an open and obvious condition, especially when the workmen acknowledge that they were aware of the condition before the accident occurred.

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Over two years after Hibernia National Bank opened a branch in New Orleans East in 1996, Esther Lingoni tripped over a landscape sprinkler head located at the intersection of two sidewalks and was injured. Ms. Ligoni sued Hibernia and its insurer, St. Paul Fire and Marine Insurance Company, its architect for the project, Sizeler Architects, Inc. (Sizeler), the project landscape architect, Daly-Sublette Landscape Design & Development, Inc. (Daly-Sublette), the general contractor, Shamrock Construction Co., Inc. (Shamrock), and the landscape contractor, Paradise Gardens Landscaping, Inc. (Paradise). Ms. Ligoni argued that the defendants were liable to her because the sprinkler head was located too close to the sidewalk and posed an unreasonable risk of harm. Ms. Ligoni settled with Hibernia and its insurer. The other defendants moved for summary judgment under Louisiana Code of Civil Procedure article 966 (pdf). 

The design professionals, Sizeler and Daly-Sublette, argued that Ms. Ligoni did not have an expert who would testify regarding the professional standards of architects or landscape architects. Therefore, she did not have any evidence that they breached a duty owed to Ms. Ligoni. Additionally, they argued that her only expert was a safety expert whose only document was that her trip and fall was probably caused by a defective sprinkler “pop-up head” that was in the up position when the accident occurred. 

For their part, the contractors, Shamrock and Paradise, argued they were immune from liability under Louisiana Revised Statute 9§2771 (pdf) because they followed plans and specifications provided to them by a third-party. Under that statute, a contractor cannot be liable for damage or destruction caused by following plans and specifications provided to it by a third-party. A contractor, however, may not be shielded from liability if the plans and specifications are obviously defective and a reasonable contractor would know that following the plans and specifications would result in an unsafe or substandard condition. The trial court granted the motions and dismissed Ms. Ligoni’s claims.

On appeal, Ms. Ligoni argued that the trial court erred in granting summary judgment because a genuine issue of material fact existed regarding whether the plans and specifications were properly prepared and whether the installation of the sprinkler system was in compliance with the plans and specifications. Additionally, Ms. Ligoni argued that expert testimony was not required in a case where common sense would dictate whether the sprinkler head was too close to the sidewalk and presented a tripping hazard. 

In affirming the dismissal, the appellate court noted that both of the contractors presented evidence that neither of them played any part in the preparation of the plans and specifications for the project and that they each had complied with the plans and specifications provided to them.  Moreover, there was no evidence that the plans and specifications were defective or that compliance with them created a dangerous condition. In addition, because the accident occurred two years after installation, after project approval, after the expiration of project warranties, and while another company was maintaining the premises, there was no evidence that the condition that allegedly caused the accident was the same that existed when the project was completed. Therefore, the district court did not err in finding that the contractor defendants met their burden or persuasion and that the plaintiff did not present evidence to rebut the strong showing made by them. 

As to the design professionals, Sizeler and Daley-Sublette, the appellate court also affirmed the summary judgment as to them, because Ms. Ligoni had no evidence that either of them had breached a professional duty or that their services fell below the local standard of care for similar professionals. Critically, the appellate court agreed with the district court that she failed to present credible evidence in support of her case. In fact, her own expert was of the opinion that her accident was, more likely than not, caused by a defective or broken sprinkler head that was in the up position. Her expert, although not a design professional, did not suggest that the location of the sprinkler was improper or that the location was the cause the accident. Accordingly, the appellate court found no error in the district court’s ruling.

Take-Away: Contractors may be shielded from liability for slip and fall claims when they follow plans and specifications provided to them by a third party and the plans and specifications themselves are not obviously defective or a contractor should know that strict adherence would create an unreasonably dangerous condition.

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Constantino Herrera was hired by Norma Montero to cut a tree branch on her property that was tangled in an overhead cable. When Mr. Herrera cut the branch, it fell in an unexpected manner and caused both Mr. Herrera and his ladder to fall to the ground. As a result of the fall, Mr. Herrera sustained injuries and sued Ms. Montero and her homeowner’s insurer the matter Herrera v. United Fire & Casualty Company. 

In his lawsuit, Mr. Herrera alleged that Ms. Montero failed to properly maintain the tree and failed to warn him of the dangerous condition; namely, the entanglement of the tree’s branches with the cable. Ms. Montero’s insurer filed a motion for summary judgment arguing that she could have no liability to Mr. Herrera given the fact that he was hired to rectify the same open and obvious condition (i.e. the tangled branches with the cable) that he alleged constituted the breach of the her duty to him. The trial court granted the motion for summary judgment and the Louisiana Fifth Circuit Court of Appeal affirmed. 

In affirming the grant of summary judgment, the appellate court recognized that Mr. Herrera was hired to remove a branch that was visibly tangled in an overhead cable; he determined the means and methods by which he would undertake the job; and, he used his own equipment and judgment in performing the work. Ms. Montero played no part in controlling or directing his efforts. Therefore, Ms. Montero owed no duty to the tree cutter and his claims arising from the tree trimming accident were properly dismissed.  

Take-Away: A person hired to correct or eliminate an open and obvious condition cannot recover from the property owner when his injury is the result of the same open and obvious condition that he was hired to fix, rather than any act or omission of the property owner.

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The case of Cronin v Department of Public Safety reaffirms that whether a defect on a premises poses unreasonable risk of harm turns on the facts of the case.  Mr. Cronin was severely injured at a building owned by the St. Bernard Port, Harbor, and Terminal District (“Port”). The plaintiff attempted to exit a locked double door when his hand slipped off the metal bar that opened the door and his hand went through the door’s glass panel. The door did not have a sign advising that the door was locked. 

After a bench trial, the plaintiff was found to be 100% liable for his injuries. The trial court relied on testimony indicating that the plaintiff was agitated when he was leaving the building and that he forcefully attempted to push the door open. The plaintiff appealed to the Louisiana Fourth Circuit Court of Appeals. 

On appeal, the appellate court applied Louisiana Revised Statute 9:2800 (pdf) and Louisiana Civil Code Article 2317 (pdf), which limits public entity liability to damages caused by conditions of buildings within the entity’s care and custody. Those conditions have to be known to the entity and not timely corrected. According to the record on appeal, a security guard for the Port testified that he reported the door had a problem of “sticking” and that Port maintenance unsuccessfully attempted to fix the door. The Port locked the door after efforts to get it fixed failed. The Port argued that: locking the door did not create an unreasonably dangerous condition, by itself; a door that contains plate glass is not, in itself, unreasonably dangerous; and, a plate glass is not, in itself, unreasonably dangerous. The appellate court agreed. 

The appellate court, however, noted that the door was in an unquestionably high volume passageway for people entering and leaving the building. Furthermore, it was uncontroverted that the door was defective in that it was difficult to open, because it would stick. The court acknowledged that the plaintiff may have been agitated when he left, but that the plaintiff’s fault did not excuse the duty owed by the Port. The Port had a duty to keep visitors safe from a dangerous condition on the premises by either warning the public that the door was defective or repairing the door. The Court stated that “If the door had been locked, there was no sign to warn a person exiting the building. If the door had been left unlocked…, there is ample evidence that the door was heavy and would stick and not open entirely. Either scenario created an unreasonable risk of harm, especially in light of the fact that the door contained plate glass.”  

The appellate court reversed the trial court’s decision and, rather than remand, adjusted the allocation of fault and found the plaintiff ten percent at fault for his injuries. The plaintiff was awarded $523,951.35 plus judicial demand. 

Take-Away: An owner must warn of an unreasonably dangerous condition. Whether a condition creates an unreasonable risk, however, is not a simple task and includes a weighing of all of the facts.

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

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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.

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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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