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.

A Merchant's Duty to Warn . . . of a Zip Tie?

On April 18, 2012, Benjamin Tomaso visited the Home Depot in Slidell, Louisiana.  He parked his car near the main entrance while his fiancé entered the store to return an item.  When he noticed lawn tractors near the entrance, he stepped out of his car and sat on one of the tractors to “check it out.”  A Home Depot employee asked Mr. Tomaso to remove himself from the tractor because there was insufficient room for the employee to push shopping carts between Mr. Tomaso’s parked car and the tractor.  While attempting to step down from the tractor, Mr. Tomaso fell.  At first, he was not sure what caused him to fall, but after he fell, he noticed a small zip tie on the floorplate of the tractor and concluded that it was the only possible cause of his accident.

Mr. Tomaso filed a slip-and-fall suit against Home Depot, U.S.A., Inc. (“Home Depot”), claiming that he suffered extensive injuries as a result of his foot being snagged by a hazard – the zip tie – that had negligently not been removed from the subject tractor.  Home Depot filed a motion for summary judgment, asserting that Mr. Tomaso failed to meet the requisite burden of proof governing negligence claims against merchants pursuant to La. R.S. 9:2800.6 (pdf).  Specifically, Home Depot argued that the zip tie was not a defective condition or otherwise inherently dangerous, and that Mr. Tomaso presented no evidence that any injury caused by a zip tie was foreseeable or that Home Depot should have known an injury could occur.  Additionally, Home Depot urged that Mr. Tomaso could not prove causation because he did not know what caused him to fall initially, and only after he saw the zip tie, Mr. Tomaso considered that to be the sole possible cause. 

In opposition to Home Depot’s motion, Mr. Tomaso introduced excerpts from the deposition of Home Depot’s assistant manager, who testified that the zip tie is placed on the tractor by the manufacturer to secure it during transit, and that the zip tie is usually removed by the customer after purchase.  In support of its motion, Home Depot introduced the affidavits of two Home Depot employees stating that neither employee had ever witnessed or taken an incident report where a customer tripped on a zip tie connected to a lawn tractor on display. 

Following a hearing, the trial court granted Home Depot’s motion and dismissed Mr. Tomaso’s action.  Mr. Tomaso appealed, asserting that the trial court erred in finding: (1) Home Depot was not negligent for failure to remove zip ties from the tractor before allowing Mr. Tomaso to climb on it for inspection; (2) the negligently left zip tie on the tractor was not a hazard; (3) that the negligently left zip tie was not an unreasonable risk of harm; and (4) that Home Depot’s supervisor employee was not negligent in ordering Mr. Tomaso to immediately remove himself from the tractor without warning him of the negligent hazardous zip tie as he was stepping down from the tractor.

Although Mr. Tomaso did not specify which substantive law he believed was applicable to his case, the Court of Appeal discussed two relevant statutes: merchant liability under La. R.S. 9:2800.6 and premises liability arising from ownership or custody under La. Civil Code art. 2317.1 (pdf).  The Court noted that the applicability of the merchant liability statute was questionable given that the accident took place outside the store entrance in the parking lot and did not arise from Home Depot’s failure to specifically keep its aisles, passageways, and floors in a reasonably safe condition.  Nonetheless, the Court found that summary judgment was appropriate under either statute because there was no evidence to suggest that Home Depot had knowledge of a danger or risk of harm created by the zip tie before Mr. Tomaso’s accident, and proof thereof was required under either theory of recovery.  In addition, the Court reasoned that Mr. Tomaso’s post hoc speculation that the zip tie caused his accident was insufficient to provide the factual support necessary to show he would be able to meet his burden of proving causation at trial.

Finding Mr. Tomaso failed to come forward with evidence sufficient to create a genuine dispute for trial on the essential elements of his claim, the Court of Appeal affirmed the trial court’s judgment granting summary judgment in favor of Home Depot and dismissing Mr. Tomaso’s claims.

Take-Away: To recover under either the merchant liability statute (La. R.S. 9:2800.6) or the premises liability statute based on ownership or custody (La. C. C. art. 2317.1), a slip-and-fall plaintiff bears the burden of proving that the defendant had actual or constructive knowledge of a danger or risk of harm before the plaintiff’s accident.  Additionally, post hoc speculation as to what caused an accident is not enough to show that a plaintiff would be able to meet his or her burden of proof at trial.

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

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.

Ignorance Of Defective Condition Is Not Bliss When Accident Occurs In Construction Zone

During a visit to her father’s house following Hurricane Katrina, Sharon Lewis stepped on a soft spot in the dining room floor and the floor collapsed, causing her foot to go through the floor. Ms. Lewis subsequently filed a lawsuit – Lewis v. Jones, et al., against her father, Clifton Jones, and his homeowner’s insurer, Allstate Insurance Company. 

In her lawsuit, Ms. Lewis alleged that her father had lived in the home for over 50 years and was aware or should have been aware of soft spots in the flooring, yet failed to repair them or warn Ms. Lewis of their existence. Ms. Lewis further alleged that Allstate was liable as the homeowner’s liability insurer of Mr. Jones on the date of the accident. At trial, Ms. Lewis testified that she had not been to her father’s house since 2005 and she was not aware of the condition of the floor when she arrived at the house in 2006. She did admit, however, that she was aware that the house was undergoing repairs at the time of her visit. 

At trial, Allstate sought to admit the audio taped statement of Mr. Jones, taken by an Allstate adjuster weeks after the accident (Mr. Jones had died prior to the trial). In that statement, Mr. Jones said that he did not know that the floor was rotten and he therefore had no reason to warn his daughter of the condition when she visited him in 2006. Over Ms. Lewis’ objections, the trial court allowed the statement to be read to the jury. At the end of the trial, the jury found that both Mr. Jones and Ms. Lewis were negligent and assessed 50% fault to each of them. Ms. Lewis appealed the judgment on the basis that, among other things, the trial court erred in admitting into evidence the audio taped statement of her father and in assigning 50% fault to her. 

As to the admissibility of her father’s statement, Ms. Lewis argued that an earlier statement taken by another investigator was different from the statement admitted into evidence and, therefore, the latter statement was unreliable. The appellate court disagreed and determined that the substance of both statements was similar and there was nothing to indicate that either statement was untrustworthy. And, more importantly, the statements were the only evidence of Mr. Jones’ knowledge of the condition of the floor, and for this additional reason alone they were properly admitted into evidence. 

With respect to the jury’s assignment of comparative fault to Ms. Lewis, the appellate court noted that the fact that Ms. Lewis’ was aware that repairs were being made in the house at the time of her visit, coupled with her awareness that the house had been damaged in Hurricane Katrina, supported the assessment of fault against her. Even though there was no evidence that Ms. Lewis’ father warned her of the condition of the floor, she still had an obligation to proceed with caution in a house that was under repair. Since the assessment of comparative negligence is a factual matter within the sound discretion of the trier-of-fact, the appellate court refused to reverse the finding of the jury.

Take Away: If you visit a property where construction work or repairs are taking place, you have an obligation to proceed with caution even if you have not been warned of a dangerous or defective condition on the premises. Failure to do so, could result in you being found responsible, at least in part, for any injuries you may sustain.