How to Dump and Get Away With It

Predecessors to Exxon Mobil Corporation (“Exxon”) and 2H Incorporated (“2H”) gained leasing rights to use lands owned by Emile Levet (“Levet”) and Roger and Julie Moore (“the Moores”) for oil and gas exploration and production activities in the 1950s, 1960s, and 1970s. These lands are located in the Bayou Sale Oil & Gas Field in St. Mary Parish, Louisiana. Levet and the Moores filed suit against Exxon and 2H seeking damages for contamination of their land resulting from disposal of hazardous oilfield waste in unlined earthen pits near their property.  

In the lawsuit, Levet and the Moores assert that Exxon and 2H are strictly liable under articles 2317 (pdf) and 2322 (pdf) because they had garde of the facilities and equipment that polluted their property.  To prevail on a custodial liability claim under article 2317, a plaintiff must prove four elements: 1) the thing causing his damage was in the garde of the defendant; (2) the thing had a “defect” or a condition creating an unreasonable risk of harm; (3) the defective condition caused plaintiff’s injuries; and 4) the defendant knew or should have known of the defect that caused the plaintiff’s injuries. To prevail against the owner of a building under article 2322, a plaintiff must prove five elements: (1) ownership of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and (5) causation.

Thus, to state a claim under either article, a plaintiff must allege the existence of a vice or defect. The district court dismissed the premises liability claims because Levet and the Moores failed to allege any facts suggesting that any of Exxon’s or 2H’s facilities and/or equipment contained a vice or defect that created an unreasonable risk of harm to their properties. The failure to allege such facts was fatal to their premises liability claims.

Take-Away:  Simply because a property has been damaged does not necessarily mean someone will be held accountable for the damage.  A plaintiff’s claim for environmental damage will rise or fall on the theory of recovery actually alleged by a plaintiff, even when other non-asserted theories of recovery may be available to the plaintiff.

Contractor Not Responsible for Table Saw Injury

In August 2009, plaintiff Patrick Chaplain, a carpenter, was working at a house being renovated by a contractor. His employment status, i.e., whether he was an employee or sub-contractor, is unclear. Plaintiff was cutting prefinished wood flooring on a table saw owned by the contractor, when his left hand was struck by the table saw blade, amputating several fingers. The safety guard was not on the table saw at the time.

Plaintiff sued the contractor under Louisiana Civil Code Article 2317, which governs liability for things in one’s custody, and Article 2317.1, which governs the liability of the owner or custodian of a thing for damage caused by ruin, vice, or defect in things. The contractor filed a motion for summary judgment which the trial court granted.

On appeal, the Louisiana Fourth Circuit Court of Appeal noted that plaintiff had been a carpenter for 30 years, worked with prefinished wood floorboards before, seen operating manuals for table saws but never read them, and seen warning labels saying that the table saw should only be used with the guard in place. Plaintiff knew the guard was not on the table saw at the time of his accident. In order to use the table saw to perform the cuts he needed to make, the blade guard could not be installed. Plaintiff was aware of other tools he could have used to make the cuts he needed to make. The contractor, after hiring plaintiff, bought a new table saw and gave the box to plaintiff and his son for assembly. A blade guard was included in the box, but the saw was assembled without the guard.

In order to prevail on a claim under Article 2317, a plaintiff must prove that the thing which caused damage was in the defendant’s custody and control (garde), the thing had a vice or defect which created an unreasonable risk of harm, and the injuries were caused by a defect. Article 2317.1 adds the requirement that the injured plaintiff prove that the owner/custodian knew, or in the exercise of reasonable care, should have known of the unreasonable risk of harm, that the damage could have been prevented by the exercise of reasonable care, and that the owner/custodian failed to exercise such reasonable care.

The Fourth Circuit affirmed summary judgment on behalf of the contractor, finding that the table saw was under plaintiff’s control at the time of the accident and that plaintiff did not prove that the table saw had a defect much less that the contractor defendant knew of the defect. The accident took place because the blade guard was not on the table saw, “a fact of which [plaintiff] was well aware.” Plaintiff chose to use the table saw even though other tools were available to perform the cuts.

Take-Away: A contractor who does not have custody or control over a tool and did not have knowledge of an alleged defect in the tool cannot be held responsible for injury caused by its use.

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.

Circle K Wins Battle Over Undisturbed Stream of Water

On a rainy day in August, Vickie Buchanan slipped and fell on water at the Circle K store located on Howard Avenue in New Orleans, Louisiana. The source of water on which she fell was a one inch wide stream flowing from a cooler that stood near the entrance to the store. A warning cone had been placed near the entrance since it had been raining that day.

Because this case involved an alleged defect in the premises that produced a hazardous condition – as opposed to just a spill of liquid – Ms. Buchanan had two theories for recovery against Circle K: negligence and strict liability. While each theory of recovery has its own set of evidentiary requirements, both claims need evidence that a property owner had actual or constructive notice of the alleged water. In other words, Ms. Buchanan was required to present evidence that the Circle K employees actually knew that the water was on the floor or that the water was on the floor for a long enough time such that the Circle K employees should have discovered it in the exercise of reasonable care. A failure to produce evidence of either is fatal to Ms. Buchanan’s claims against Circle K.

According to Circle K, its employees inspected the store equipment on a daily basis, and its employees were trained to watch for hazards within the store. Circle K’s maintenance records indicated that there were no prior problems with the cooler in the days leading up to and on the day of the accident. Furthermore, Ms. Buchanan testified at her deposition that the stream of water appeared “undisturbed” and that she did not know how long it has been on the floor. Following the plaintiff’s deposition, Circle K filed a motion for summary judgment arguing that Ms. Buchanan could not establish liability since she had no evidence that Circle K knew or should have known of the water prior to the subject accident. In opposition, Ms. Buchanan failed to produce specific evidence that could refute or cast doubt on Circle K’s arguments. Accordingly, the court determined that because Ms. Buchanan would not be able to meet her burden of proof at trial, there was no genuine issue for trial and it dismissed her case against Circle K.

Take-Away: Regardless of whether a plaintiff brings a negligence or strict liability claim, there is no liability without evidence of actual or constructive notice of an unreasonably dangerous condition.

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

Skating Circles around Plaintiff's Case

In Taylor v. JeanShineda Taylor and others went to Airline Skate Center in Metairie, Louisiana. At the Skate Center, Ms. Taylor obtained a pair of size 7 skates and wore them for about 30 minutes. During that time, she was walking on the skates in the “kiddie” area and in the carpeted area while holding the hand of her 5-year-old son. After 30 minutes, she took a step and the front wheels of her left skate allegedly locked up, causing her to fall. Paramedics arrived soon afterwards and transported her to the hospital, where it was learned that she had broken her ankle. Approximately two weeks later, she underwent surgery.

Ms. Taylor filed a suit for damages in the 24th Judicial District Court for the Parish of Jefferson against Airline Skate Center, Inc. and Robert Jean. In response, the defendants filed a motion for summary judgment asking that the case be dismissed. They argued that Ms. Taylor couldn’t prove that the skates were defective or that they had notice of the alleged defect. The trial court agreed and granted the motion, dismissing the defendants from the case. Ms. Taylor appealed the dismissal to the Louisiana Fifth Circuit Court of Appeal.

On appeal, a three judge panel of the Fifth Circuit analyzed the motion for summary judgment de novo, meaning that they didn’t defer to the findings of the trial court in any way. The Court then held that Louisiana Revised Statute 9:2800.6 (which applies to claims by slip/trip and fall victims against merchants) and/or Louisiana Civil Code Article 2317.1 (which applies to claims against the owners of injury causing things – in this case roller skates) applied to Ms. Taylor’s claims. And, it held that Ms. Taylor had to prove in her case to prevail and, more immediately, to defeat summary judgment that her skate was defective and that the defendants knew or should have known of the defect.   

Ms. Taylor argued that the trial court erred in granting summary judgment, because it weighed and made credibility determinations concerning the evidence before it, which is not permissible when making summary judgment rulings. The Fifth Circuit disagreed with Ms. Taylor’s arguments.

First, the court held that a defect could not be inferred solely from the fact that the accident occurred. Next, it examined the evidence before it. On the one hand, Ms. Taylor presented her own testimony that the skate at issue looked dirty and worn and that it “locked up,” allegedly indicating that the skate was not properly maintained and was defective. On the other hand, the defendants presented evidence that the skates were examined and maintained on a regular basis, and inspected prior to being given to a renter. It was also pointed out that Ms. Taylor had admitted that she couldn’t actually identify or prove a specific defect with the skate, she did not report any problem with her skates either before or after the accident, and she failed to preserve the skates for evidence. Based on these findings, the appellate court held that Ms. Taylor’s evidence, i.e. her deposition testimony, consisted of nothing more than “conclusory allegations, improbable inferences and unsupported speculation,” which wasn’t enough to carry her burden to prove a defective skate. Accordingly, the Court affirmed the trial court’s dismissal of her case.

Take-Away: Negligence cannot be inferred against a business owner or an owner of an allegedly defective thing simply because an accident happened and somebody got hurt. And if the plaintiff’s “evidence” that she was injured by something “defective” consists of nothing more than conclusory allegations or calls for improbable inferences or speculation about a defect, then the case is subject to being summarily dismissed.

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

Not a Stairway to Heaven: Churchgoer Trips on Church Steps

Carla Boutin brought a negligence action against the Roman Catholic Church of the Diocese of Baton Rouge, St. Joseph Catholic Church, and their insurer, Catholic Mutual Group, for injuries sustained as a result of falling down a set of stairs while exiting a church.   She claimed that the surface near the church stairs was uneven, causing her to trip and fall. The trial court rejected Ms. Boutin’s arguments and granted summary judgment in favor of the defendants. The appellate court affirmed and held that the plaintiff could not establish that a defect existed in the steps that posed an unreasonable risk of harm, nor could she establish that the defendants knew or should have known about the defect prior to the incident.

Under Louisiana law, a person alleging the negligence or strict liability of a building owner must prove: (1) the property presented an unreasonable risk of harm; (2) the building owner knew or should have known of the defect; and (3) the damage could have been prevented by the exercise of reasonable care and the owner failed to exercise such reasonable care. To prove the second element, a person must establish that the building owner either knew of the defect or through the exercise of ordinary care and diligence should have been aware of the defect that gave rise to the injury. In this case, Ms. Boutin failed to prove that the stairs presented an unreasonable risk of harm. The appellate court noted that photographs reflecting the condition of the steps established that they were not broken, missing, slanted, or uneven.   Moreover, affidavits from two church officials responsible for the maintenance and care of the building established that the defendants were not aware of any alleged defect in the steps. Ms. Boutin on the other hand failed to offer any factual evidence in support of her claim. In light of these facts, the court concluded that even if the stairs presented an unreasonable risk of harm, “there is no reason to conclude that such defect, which is not discernable from the photographs, should have been discovered by the defendants by reasonable inspection."

Take-Away: Although building owners are only responsible for a defect in their premises if they knew or should have known of the defect at the time of the accident, in order to minimize personal injury claims arising out of a fall on the premises, owners should carefully monitor the condition of their property and remedy any defects that may manifest themselves.

This article was co-authored by David Moore, Jr., a 2015 summer associate at Irwin Fritchie Urquhart & Moore LLC.

To State The Obvious - Expert Testimony On Issues Of Common Knowledge Will Be Excluded

When a guest of the New Orleans W Hotel was traveling across the hotel’s lobby, she tripped over a low-lying, mirrored coffee table and cut her hand on broken glass. She underwent two surgeries to correct her injuries. 

The guest filed suit in Louisiana state court against Starwood, the owner and operator of the hotel, alleging violations of the Louisiana Merchant Liability Statute, as well as the Civil Code article which holds owners of things liable for damages caused by a ruin, vice or defect in an object. Starwood removed the matter to federal court on the basis of diversity jurisdiction. Both parties retained experts to support their respective positions on the safety of the table’s position in the lobby, and Starwood filed a motion in limine to exclude the guest’s proffered expert witness, Lance S. Roux. 

In his report, Mr. Roux opined that the mirrored coffee table reflected the rug that it sat on, making it difficult to distinguish between the floor and table. Furthermore, “if safety standards, regulations and recommended safety practices for pedestrian walkways had been applied and adhered to,” the injury could have been avoided. To reach this conclusion, he relied on a site inspection, photos and video of the injury, a statement of the guest, and the hotel incident report.

Under the controlling case law, a district court may exclude expert testimony if the subject matter and opinions are matters that a fact-finder can deal with competently based on common sense and knowledge of the world.   Applying this principal to the matter at hand, Judge Barbier held that the incident – tripping over a coffee table – did not present unique issues, and the jury was capable of evaluating the situation based on its common knowledge and experience. He further held that the fact that the table was mirrored did not elevate the situation to “extraordinary.” Since the expert testimony would not assist the fact-finder in understanding the evidence or determining a fact in issue, the Plaintiff’s expert was excluded. 

Take-Away: Before investing in an expert witness, premises owners should take caution to ensure that the contemplated expert opinions involve unique issues that will provide the fact-finder with information he would not otherwise know through his/her own ordinary experience.

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

Just the Facts Ma'am

Plaintiff, a former contract employee at Citgo Petroleum Corporation, claimed that he was injured as a result of his exposure to high levels of toxic materials and irritants during his employment as a sandblaster/painter for approximately twenty years. He filed suit against Citgo alleging that the company failed to warn of dangers associated with his work and failed to provide a safe work environment. In turn, Citgo moved to dismiss Plaintiff’s claims in Roach v. Air Liquide America.

The court, in analyzing Citgo’s motion, noted that the standard under Federal Rule of Civil Procedure 12(b)(6) is that dismissal is warranted when the Complaint “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” In determining whether this standard is met, the Complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” And, under Louisiana Civil Code article 2317.1 (pdf), an owner or custodian of a thing is only liable if the thing was under the defendant’s custody, contained a defect that presented an unreasonable risk of harm, the defect caused the damages, the defendant knew or should have known of the harm, and the damage could have been prevented by the exercise of reasonable care.

In support of its motion, Citgo highlighted that plaintiff simply failed to allege any facts in support of his claims that Citgo failed to provide necessary protection, failed to warn of the risks associated with silica exposure, and failed to provide proper ventilation. Moreover, plaintiff did not provide facts regarding his claimed exposure to hazardous levels of silica, the frequency with which he was exposed, how Citgo knew of the alleged dangers, what Citgo could have done to prevent such alleged dangers, or any other circumstantial details.

The court ultimately agreed that the plaintiff failed to allege sufficient facts to support his claims. However, the court gave the plaintiff 30 days to amend his Complaint to allege sufficient facts, and if he failed to do so, the suit would be dismissed with prejudice.

Take-Away: Although a plaintiff often will be given an opportunity to amend a poorly pled Complaint, a defendant–employer should nonetheless seek dismissal of a plaintiff–employee’s premises liability suit where the Complaint is woefully inadequate. This action will force the plaintiff to either properly plead his case, or if he is unable to do so, abandon the lawsuit.

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

Give Them One and One-Half to Three Inches and They'll Take a Mile

Plaintiff, Paul Broussard (“Broussard”), a UPS delivery driver, sustained a serious back injury while maneuvering a loaded dolly into one of the misaligned elevators in the Wooddale Tower, a twelve-story, State-owned office building located in Baton Rouge. 

Broussard filed suit against the State alleging that the State was negligent in failing to properly maintain and adequately repair a defective thing within its custody and care, thereby creating an unreasonable risk of harm. The jury returned a verdict in favor of Broussard, specifically finding 1) the offset between the elevator and lobby floors created an unreasonable risk of harm, 2) the State had a reasonable opportunity to remedy the defect but failed to do so, and 3) the defect was the proximate cause of Broussard’s injuries. The jury apportioned 38% fault to Broussard and the remaining 62% to the State and awarded Broussard $1,589,890.23 in damages. Once Broussard’s damages were reduced in proportion to his assigned percentage of fault, the trial court rendered a judgment in the amount of $985,732.56.

The State appealed, Broussard v. State ex. rel. Office of State Bldgs. The Court of Appeal reversed, finding that the jury’s determination that the offset created an unreasonable risk of harm was manifestly erroneous. Applying the four-prong, risk-utility balancing test articulated by the Louisiana Supreme Court in Pryor v. Iberia Parish School Board, the Court of Appeal found that the elevator’s social utility outweighed the risk created by its defective, yet readily apparent condition. First, the towers elevators serve an extremely useful, maybe even indispensible, societal function. Second, the defect was open and obvious, thus not presenting a serious risk of harm; further Broussard admitted he was probably aware of the offset when he pulled the dolly into the elevator. Third, Broussard could have avoided injury by either dividing the boxes of paper into multiple, lighter loads or waiting for another elevator. Lastly, there was no record of the elevator’s defective condition causing any injuries in the past. The Court of Appeal found there was no reasonable basis to support the jury’s verdict, concluding the jury was manifestly erroneous in finding an unreasonable risk of harm.

In a per curiam opinion, the Louisiana Supreme Court reversed the Court of Appeal, finding the jury’s unreasonable risk of harm determination not manifestly erroneous, that the record contained a reasonable factual basis to support the jury’s finding that a one and a half to three inch offset between the floor of the elevator and the floor of the Tower’s lobby presented an unreasonable risk of harm. The Supreme Court further found a reasonable factual basis existed to support a finding that the elevator’s defective condition was not an open and obvious hazard, as the defect was not readily apparent to all who encountered it. The Supreme Court held that the State, therefore, breached its duty of care by failing to remedy the defect or warn of its existence until the defect could be remedied. Thus, the judgment of the trial court was reinstated rendered in conformity with the jury’s verdict.

Take-Away: While a defendant only has a duty to protect against unreasonable risks that are not obvious or apparent, the fact finder, employing a risk-utility balancing test, determines which risks are unreasonable and whether those risks pose an open and obvious hazard. Thus, the fact finder determines whether a defendant has breached a duty to keep its property in a reasonably safe condition by failing to discover, prevent or warn of a defect that presents an unreasonable risk of harm.

This article was co-authored by Edie Cagnolatti, counsel with Irwin Fritchie Urquhart & Moore LLC. 

Plaintiff's Claim doesn't Carry Weight?

On November 18, 2009, Larry Modicue went to the office of Rose Kennedy, an insurance agent for State Farm. Modicue, who weighed over four hundred pounds, was led to a private office and offered a chair made of a steel tubular construction that he had used on prior occasions without incident. On that day, however, when he sat down, the chair collapsed, spilling Modicue onto the floor where he sustained an injury to his shoulder. He then filed suit against both Kennedy and State Farm for his injuries. Kennedy and State Farm filed a motion for summary judgment on the grounds that Modicue presented no evidence that the defendants were aware of any defect in the chair, which the trial court granted. Modicue then appealed.

In his appeal, Modicue argued that the trial court made two errors when it granted defendants’ motion for summary judgment. First, he argued that a Louisiana business owner has a duty to provide seating that is adequate for the general population of the United States, under Louisiana Civil Code article 2317.1 (pdf). Second, he argued that the facts of the case permitted the application of res ipsa loquitur, a rule of circumstantial evidence that applies when the facts suggest that the defendant’s negligence is the most plausible explanation for an injury.

The court of appeals first found that the trial court did not err in granting the motion for summary judgment because Modicue did not provide any evidence that the defendants had any knowledge that the chair was defective, which is required of a plaintiff under Article 2317.1. Importantly, the court recognized that Modicue’s previous use of that same chair, combined with the fact that the chair contained no carrying capacity warning, demonstrated that neither State Farm nor Kennedy should have thought the chair was incapable of holding Modicue’s weight. 

Next, the court of appeals determined that the trial court acted properly when it determined that the doctrine of res ipsa loquitur did not apply. Generally, for res ipsa loquitur to apply, the circumstances of an accident must be so unusual that in the absence of other evidence, the only reasonable explanation is that the defendant’s negligence caused the accident. Here, the court found that Modicue’s “prodigious weight” made it unlikely that the only reasonable explanation for the accident was that the chair contained a defect. 

Take-Away: A plaintiff’s previous use of a thing under a defendant’s control, on the defendant’s premises, without incident, can serve as evidence that the defendant had no knowledge of a potential defect in that thing. This evidence can be instrumental in defeating a plaintiff’s claim for premises liability under Louisiana Civil Code article 2317.1.

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

Path to Summary Judgment Remains Clear Despite Slippery Substance on Pathway

While riding his bicycle through a tunnel on the Tammany Trace recreational trail in Mandeville, Louisiana, the plaintiff, John Souza (“Souza”), encountered a slippery substance covering the pathway. When he rode over the substance, his bicycle slid, causing him to fall onto the paved trail. As a result of the fall, Souza allegedly sustained a detached bicep tendon that required surgery.

Souza filed suit against the City of Mandeville (“the City”) alleging that the tunnel constituted an unreasonably dangerous condition about which the City had actual or constructive knowledge. Souza also asserted that the City’s failure to warn the public of the tunnel’s slippery surface was willful and malicious, rendering it liable for his injuries. In response, the City filed a motion for summary judgment on the grounds that it was immune from liability under La. R.S. 9:2795 (pdf), which grants limited immunity from liability to the owner of land that is dedicated for recreational use. The City argued that Souza could not satisfy his burden of proof under this statute because there was no evidence that the City had actual or constructive notice of the alleged unreasonably dangerous condition prior to the accident. The trial court agreed and granted the City’s summary judgment motion on those grounds, following which Souza filed an appeal, Souza v. St. Tammany Parish.

In its de novo review of the record the appellate court found that the accident took place on recreational land controlled by the City and Souza’s claim, therefore, was governed by La. R.S. 9:2795. The court explained that a person making a claim under this statute must establish that:  (1) the City owned or had custody of the tunnel; (2) the tunnel was defective in that it created an unreasonable risk of harm to others; (3) the City had actual or constructive knowledge of the defect or risk of harm and failed to take corrective action within a reasonable time; and (4) the defective condition caused the person’s injuries. 

The City filed a motion for summary judgment on the ground there was no evidence that the City had “actual or constructive knowledge of the defect or risk of harm.” In support of this position, the City relied on the deposition testimony of Souza and the City’s Building and Grounds Superintendent (“City Witness”). In his deposition, Souza admitted that he was an experienced cyclist who had ridden through the tunnel many times prior to the accident without incident, and without ever noticing anything slippery coating the surface. The City Witness testified that Parish employees patrolled the path every day, and work crews checked the tunnel each week for trash and maintenance issues. And, the City had not received a complaint about anything slippery on the tunnel surface immediately prior to the accident. 

After finding that the City established that Souza lacked factual support for an essential element of his claim, the court focused on the issue of whether the City had actual or constructive knowledge of the alleged unreasonably dangerous condition in the tunnel. In support of his claims, Souza produced three work orders issued by the City a month before the accident that addressed water around the tunnel and one work order issued by the City a year before the accident regarding a cyclist’s report that the tunnel was slippery. Souza argued that this evidence showed that the City had at least constructive knowledge of the tunnel’s unreasonably dangerous condition prior to his accident, and that the City willfully and maliciously failed to warn tunnel users of the dangerous condition. The appellate court disagreed and concluded that Souza’s evidence merely demonstrated that in the past the City responded in a timely manner whenever it was alerted to a potentially dangerous condition; the evidence did not demonstrate that the City was willful or malicious in its failure to warn of the tunnel’s dangerous condition. 

Take-Away:  Although a landowner who dedicates his land to the public for a recreational purpose enjoys limited immunity from liability, the immunity is not absolute. It therefore is essential for the landowner to regularly inspect and maintain the land and respond promptly to any complaints or alerts brought to his attention regarding potentially dangerous conditions.

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

One Too Many Mudslides? Daiquiris Patron's Knowledge of Steep Step Leading to Restroom Does Not Necessarily Bar Her Ability to Recover Against Daiquiri Shop

While driving through Metairie one evening, Lenai Boye and her husband stopped at a local Daiquiris & Creams. While Mr. Boye ordered a drink, Ms. Boye went to the ladies’ room. There was a step at the threshold of the restroom, which Ms. Boye successfully navigated when she entered the facility. However, when she exited the restroom, Ms. Boye missed the step and fell, injuring her chin, jaw, and neck, and breaking her wrist.

Ms. Boye filed suit against Daiquiris for damages – Boye v. Daiquiris & Creams No. 3., Inc. In response, Daiquiris sought dismissal of the case via summary judgment, arguing that Ms. Boye could not recover as a matter of law because she had actual knowledge of the alleged dangerous condition – the step leading to the restroom – prior to the incident. This knowledge, according to Daiquiris, precluded Ms. Boye from claiming that the step presented an unreasonable risk of harm.  Daiquiris also asserted that it had taken various safety measures to warn customers of the step, including posting “step up” and “step down” signs, putting lights in the area, and putting reflective tape on the steps. These facts were contested by Ms. Boye who presented contradictory testimony indicating that none of those measures was in effect at the time of her fall. After a hearing on the matter, the trial court granted summary judgment and dismissed Ms. Boye’s lawsuit. Ms. Boye appealed that decision.

On review, the court of appeals considered Ms. Boye’s claims pursuant to Louisiana Civil Code Articles 2317.1 and 2322.  Louisiana Civil Code article 2322 provides that a building owner may be liable for damage caused by a vice or defect in the building only if (1) he knew about the defect, (2) he could have prevented the damage by using reasonable care, and (3) he failed to exercise such care. The appellate court noted that a condition in the building will be considered a defect only if it poses an unreasonable risk of harm. When determining whether a complained of condition presents an unreasonable risk of harm, courts weigh a variety of factors, including: (1) the claims and interests of the parties; (2) the probability that the risk will occur; (3) the severity of the consequences; (4) the burden of adequate precautions; (5) the individual and societal rights and obligations and stake; and (6) the social utility involved.  Applying this analysis, the appellate court noted that the trial court only considered the issue of whether Ms. Boye’s safe entrance into the restroom precludes her claim and failed to consider other material facts relevant to a finding of unreasonable risk of harm. The appellate court then found that all of the facts and circumstances that bear upon liability, including lighting, signage, the utility and condition of the step at the time of the fall, were disputed and needed to be resolved at trial. Accordingly, the appellate court reversed the trial court’s grant of summary judgment and sent the case back to the trial court for further proceedings.

Take-away: The mere fact that a person injured on the premises was aware of an allegedly dangerous condition prior to the incident does not, in and of itself, preclude the person from recovering against the building owner. All of the facts and circumstances surrounding the incident must be considered in determining whether risks are unreasonable.

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

Steppin On A Crack May Break Your Mother's Back But It Will Not Break The Municipality's Bank.

On the morning of June 15, 2005, Ms. Enola Wiltz and her husband brought their son to City Hall in Breaux Bridge, Louisiana to renew the son’s driver’s license. As Mrs. Wiltz was walking to the building, she stumbled, but did not fall, over a beveled crack in the sidewalk. As a result of the stumble, Mrs. Wiltz allegedly sustained leg and back injuries and incurred approximately $100,000 in medical expenses. Mr. and Mrs. Wiltz subsequently filed suit against the City of Breaux Bridge and its insurer. 

Following a bench trial, the judge ruled that the Wiltzes failed to prove their case because they did not submit sufficient evidence that the crack in the sidewalk posed an unreasonable risk of harm. Furthermore, there was no evidence to demonstrate that the City knew or should have known about the crack in the sidewalk prior to the accident. The Wiltzes then appealed the trial court’s judgment, contending that it was clearly wrong in failing to find that “a beveled cracked sidewalk, covered and disguised by grass growth on a major sidewalk leading directly into the main organ of commerce for the City causing plaintiff’s accident and injuries did not create an unreasonable risk of harm.”

Under Louisiana Revised Statutes 9:2800 (pdf), Louisiana’s Public Entity Liability Statute, in order to prevail at trial, the Wiltzes had to prove that (1) the City owned or had custody of the sidewalk; (2) the sidewalk was defective in that it created an unreasonable risk of harm to others; (3) the City had actual or constructive knowledge of the defect and failed to take corrective action within a reasonable time; and (4) Mrs. Wiltz’s injuries were caused by the defect. The only issues before the appellate court were elements 2 and 3, i.e. whether the sidewalk was defective and the knowledge (actual or constructive) of the city about the crack. In a unanimous decision, the Third Circuit, in the case Wiltz v. ABC Ins. Co., affirmed the ruling of the trial court.

As a preliminary matter, the court noted that under LSA-R.S. 9:2800 a municipality is not required to maintain its sidewalks in perfect condition. Rather, plaintiffs had the burden of proving that that the sidewalk at issue was not maintained in a reasonably safe condition for persons exercising ordinary care and prudence. In making this determination, all relevant moral, economic, and social considerations must be weighed. In affirming the trial court’s conclusion that the sidewalk did not pose an unreasonable risk of harm, the appellate court relied on several factors. First, courts in two earlier cases found that larger cracks did not pose unreasonable risks of harm. Second, there was no evidence that anyone had complained about the crack before the accident. To the contrary, two public officials, including the mayor, testified that they had no knowledge of prior complaints about and/or injuries involving the crack. Finally, the vegetation growing out of the crack didn’t obscure the entire crack, but actually indicated in itself the existence of a crack.

Take-Away: Plaintiffs have a heavy burden in cases against governmental entities to prove that cracks in their sidewalks pose an unreasonable risk of harm. The size of the crack, the degree it is obscured from view and the complaint and injury history related to the defect are all part of the analysis

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


Can't Blame It On The Rain

The case Billiot v. Big Wheels Travel Center demonstrates how a plaintiff needs to offer some evidence of a vice or defect in a property in order to survive a motion for summary judgment. Ms. Billiot alleged that she injured her right arm when she slipped and fell on an access ramp while walking into the Big Wheels Travel Center. In response to Ms. Billiot’s claims, Big Wheels filed a motion for summary judgment. In support of the summary judgment motion, Big Wheels submitted photographs depicting the ramp and affidavits of store employees confirming that there was nothing defective about the ramp at the time of the accident. Other than establishing that rain had fallen on the area where she slipped and fell and that the area was wet, Ms. Billiot offered no evidence of any vice or defect in the property. Given this lack of evidence, the trial court granted Big Wheel’s motion for summary judgment and in doing so noted that rain on a walkway in and of itself does not present an unreasonable harm.

Take-Away:  Rain on an access ramp or walkway in and of itself does not constitute a vice or defect. In order to avoid summary dismissal of their case, plaintiffs must come forth with some evidence that there is a problem, vice or defect in the property.