Don't Shop 'til You Drop

On November 1, 2013, Virgie Ray was shopping for clothes at the Stage Store, the same retail store where she had shopped regularly for years. Standing next to a rolling clothing rack, Ms. Ray asked an employee for help with finding a blouse. Attempting to follow the employee to another area of the store, Ms. Ray stepped into the clothing rack, and her right foot caught the bottom bar of the rack, causing her to fall. 

Ms. Ray filed a slip-and-fall suit against the Stage Store owners (“Stage”), claiming that she suffered injuries to her knees, face, shoulder, neck and right eye. She claimed that the clothing rack created an unreasonable risk of harm that Stage’s employee had a duty to warn her about. To prove her claim under Louisiana law, Ms. Ray must show that an unreasonably dangerous condition existed in the store when she fell, and that Stage created the condition, knew that the condition existed, or should have known the condition existed.  In addition, Ms. Ray must show that Stage’s employee failed to exercise reasonable care to protect her from the unreasonably dangerous condition.  Stage filed a motion for summary judgment asking the court to dismiss Ms. Ray’s claims on the basis that she had presented no evidence to support the elements of her claim. According to Stage, the clothing rack and its exposed feet were open and obvious and did not create an unreasonable risk of harm, and its employees had no duty to warn Ms. Ray of the rack’s presence or location.

Video evidence of the accident confirmed that the clothing rack was plainly visible to Ms. Ray immediately before she fell, and although Ms. Ray testified at her deposition that she could not see the bottom of the rack, she made a contradictory binding admission in which she denied that she did not see the bottom of the rack before she fell. Based on the available evidence, the court found that Ms. Ray was aware of and saw the clothing rack before she tripped and fell. As a result, the court concluded that the clothing rack did not create an unreasonable risk of harm. Rejecting Ms. Ray’s argument that she never had a chance to look down before she began to follow the employee, the court found that neither the accident video nor Ms. Ray’s own testimony reflected that she did not have a chance to look down, or that something prevented her from looking down, before she started walking. 

The court also rejected Ms. Ray’s argument that the store employee’s actions in placing or using the clothing rack were unreasonable and/or violated the store’s policy to transfer clothes from rolling racks to permanent racks as quickly as possible and then move the rolling racks to the warehouse when finished. Ms. Ray did not present any evidence showing that the employee’s actions violated the store policy or were otherwise unreasonable. Moreover, Ms. Ray failed to cite a single Louisiana case that found an unreasonable risk of harm was created, and the defendant had a duty to warn, when a temporary clothing rack was used for the same purpose, in the same manner, and in accordance with the same or a similar store policy.

Finding Ms. Ray failed to come forward with evidence sufficient to create a genuine dispute for trial on the essential elements of her claim, the court granted Stage’s motion and dismissed Ms. Ray’s claims.

Take-Away: The mere presence of an obstacle in a store, such as a temporary clothing rack, does not create an unreasonable risk of harm when the condition is open and obvious. Additionally, a store employee’s use/maintenance of a temporary rack or display case does not amount to a failure to use reasonable care unless the claimant can show that the employee’s conduct violated a store policy or was otherwise unreasonable. In order to avoid such claims, retail store owners should take steps to implement a feasible store policy on proper use and maintenance of temporary racks and/or display cases and to train employees to ensure routine compliance with that policy.

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

Update: On February 19, 2016, the U.S. Court of Appeals for the Fifth Circuit reversed the judgment of the district court.  In its reasons for judgment, the Court relied on Louisiana jurisprudence holding that an otherwise-visible obstacle that protrudes outward near ground level is not – at least as a matter of law – an "open and obvious" hazard.  Accordingly, the Court found that, although the clothing rack was visible as a whole, a reasonable jury could conclude that the low-lying base, which jutted outward around ankle level, was not an "open and obvious" hazard.  Additionally, the Court found that the normal risk of a protruding obstacle was exacerbated in this case by the narrowness of the pathway between the rack and the register, and that the Store could have easily moved the rack to a different location or cordoned off the area behind the register.  In further support of its conclusion, the Court cited a recent Louisiana Supreme Court opinion reiterating that the relevant inquiry is whether an allegedly "open and obvious" hazard is "open and obvious" to all, not just the plaintiff, and, as such, the Court deemed Ms. Ray's admission to seeing the base of the clothing rack irrelevant.  Broussard v. State ex rel. Office of State Bldgs., 113 So.3d 175, 188 (La.2013). 



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. 

Not So Open and Obvious - The Case of the Laundry Obstacle Course

Billie Warren was a medical assistant of Dr. Robert Kenny. One of the perks of her employment was the rent free use of a residential apartment on the second floor of Dr. Kenny’s office building. Ms. Warren’s apartment did not have a washing machine or dryer, but she was allowed to use a washer and dryer located on the balcony of another apartment in the building. However, the balcony could only be accessed through the other apartment or, alternatively, by climbing an unopened, A-frame (carpenter) ladder with a cable lock attached to the iron work on the exterior wall under the balcony. In using this alternate route, Ms. Warren would have to climb either over or under the balcony railings to get from the top of the ladder onto the balcony and vice versa.   

On the day of the accident, Ms. Warren successfully ascended the ladder, navigated the balcony railings and started her laundry. Allegedly unknown to Ms. Warren, the balcony railings were only secured to the structure with “screen door hooks” to allow for easy removal of the railings when a tenant had to move large pieces of furniture into and out of the apartment. As Ms. Warren began to exit the balcony, she put her feet on the ladder and her hand on the top railing. At that time, the railing came loose and Ms. Warren fell to the ground and broke her femur. She subsequently sued Dr. Kenny and his insurer for her injuries.

After initial discovery, Dr. Kenny sought summary dismissal of the case on the basis that he could not be held responsible for Ms. Warren’s injuries because the ladder rig was an open and obvious danger and he owed no duty to warn Ms. Warren about such a condition. Ms. Warren, in turn, argued that although the ladder set-up was an open and obvious danger, the condition of the balcony railings only being secured with “screen door hooks” was neither open nor obvious. The court ruled in favor of Dr. Kenny, and Ms. Warren then filed an appeal, Warren v. Kenny (pdf).

The appellate court acknowledged the general rule that a landowner owes a duty to a plaintiff to discover any unreasonably dangerous conditions and to either eliminate them or warn of their existence. But, the court also recognized that a property owner generally does not owe a duty to protect against open and obvious hazards. The court agreed with the trial court’s finding that the property owner did not owe a duty to Ms. Warren to warn her about using the ladder to access the balcony to do laundry, because it was an open and obvious danger. However, the court concluded that the determination of whether the condition of the balcony railings being secured by “screen door hooks” was an open and obvious danger was more appropriately decided at trial. The court added that even if the property owner was found to be at fault, a plaintiff typically will be assigned a significant amount of comparative fault in cases where it is debatable whether the condition was open and obvious.  

Take-Away:  In order to have a case dismissed prior to trial, a property owner must establish that all conditions of the property that led to plaintiff’s accident and injuries were open and obvious. Otherwise, the case will proceed to trial, though the comparative fault of the plaintiff will be considered along with any potential fault on the part of the property owner.

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

For All the World to See: Open and Obvious Conditions Preclude Liability

Eighty-two year old Mildred Watts was a regular patron at The Country Place Restaurant in Minden, Louisiana. She often entered the restaurant by walking on two circular stones in a flower bed positioned in between the parking lot and the restaurant entrance. On October 1, 2006, she became the first person to trip on a metal strip bordering the flower bed.  When she fell she sustained serious injuries to her mouth and teeth.

Ms. Watts filed suit against the restaurant and its insurer, Scottsdale Insurance Company, arguing that the metal strip posed an unreasonable risk of harm and that defendants were liable for her injuries. The trial and appellate courts disagreed and found that the condition was not unreasonably dangerous because it was open and obvious. The courts found that the restaurant did not owe a duty to Ms. Watts due to the open and obvious nature of the strip.

Both courts considered that the metal strip was about four inches tall and clearly visible to the naked eye. The restaurant manager testified that no one had tripped over or complained of the metal strip in the nine years that he worked there. The manager further stated that the stones in the flower bed were decorative, not stepping stones, and patrons were not encouraged to use it to enter the restaurant. Ms. Watts even admitted that she saw the strip on her previous visits to the restaurant, but never tripped over it. Importantly, on the day of her accident, nothing obstructed her vision of the strip.

Both courts disagreed with Ms. Watts’ argument that the sole purpose of the metal strip was to trip pedestrians and that it was difficult to see because it was a dark brown/green color among dirt and plants. Rather, the strip clearly bordered the flower bed, and the area was not a designated walkway for patrons.  The courts found that the metal strip was open and obvious and did not present an unreasonable risk of harm. Accordingly, the restaurant owed no legal duty to Ms. Watts and her claims were dismissed.

Nevertheless, Ms. Watts was not completely without a remedy. Ms. Watts recovered $5,000.00 policy limits, plus interest, from Scottsdale Insurance Company under a no-fault medical payments provision of its policy, for her medical expenses incurred as a result of her injuries.

Take-Away: A property owner does not have a duty to warn about or remove conditions that are open and obvious and, thus, do not pose an unreasonable risk of harm.

This article was co-authored by Laura Beth Graham, a 2010 summer associate at Irwin Fritchie Urquhart & Moore LLC.