Wet Floor Sign Does Not Necessarily Prove Floor is Wet

Ms. Williams was shopping with her daughter at Super 1 Foods grocery store when she noticed a wet floor sign while she was walking in the frozen food section.  After she passed the sign, she slipped and fell on what she described as a “puddle of water” on the floor injuring herself. 

Ms. Williams sued the store, which subsequently was dismissed from the case via summary judgment.  On appeal, the court noted that in order for Ms. Williams to succeed on her claim under Louisiana’s merchant liability statute, La. R.S. 9:2800.6 (pdf), she had to prove 1) that the water on the floor existed and it presented an unreasonable risk of harm; 2) the store owner either created or had actual or constructive notice of the water; and 3) the store owner failed to exercise reasonable care.  Applying these factors to the evidence in the record, the appellate court affirmed the summary dismissal of Ms. William’s claims against the store owner.  In reaching its decision the appellate court considered the deposition testimony by two store employees, who both testified that the wet floor sign was placed in the area of the fall to warn customers of a faulty metal plate covering a floor drain.  Ms. Williams, in turn, pointed to the deposition testimony of two other store employees who stated that they did not recall the faulty metal plate or the wet floor sign.  She argued that the testimony of the store employees was inconsistent and that this inconsistency created a genuine issue of material fact.  The court disagreed and found that Ms. Williams failed to present any evidence that the wet floor sign was placed there because of the water on the ground (as opposed to a faulty metal plate covering a floor drain).  Ms. Williams also failed to otherwise satisfy the temporal element of her claim—that the alleged condition existed for some period of time prior to the fall. 

Take-Away:  The presence of a “wet floor sign” does not necessarily establish that there was water on the floor at the time of a patron’s fall, especially when there is an alternative explanation for the sign’s presence.  Under those circumstances, a patron must show that the allegedly defective condition (in this case water on the floor) existed for some period of time prior to a fall.

 

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.

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.