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.

 

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). 

 

 

Taking the Guesswork Out of Proving Constructive Notice

On the night of April 5, 2012, Royanne Davis slipped and fell on a kitty-litter-type substance in the parking lot of the Spur and Deli gas station in Belle Chasse, Louisiana. Ms. Davis sued Cheema One, Inc. (“Cheema”), the owner of the gas station, alleging that it failed to properly maintain the premises, failed to discover and correct an unsafe condition on the premises, failed to exercise reasonable care to prevent unsafe conditions on the premises, and failed to warn her of the unsafe conditions. To prove her claim under Louisiana law, Ms. Davis first must show that an unreasonably dangerous condition existed in the Spur and Deli parking lot, and then she must present evidence that Cheema either created that condition, knew that the condition existed (i.e., actual notice), or should have known that the condition existed (i.e., constructive notice).

Following discovery, Cheema filed a motion for summary judgment asking the trial court to dismiss Ms. Davis’s claim. While Cheema admitted that a kitty-litter-type substance was in its parking lot on the night of Ms. Davis’s fall, Cheema nevertheless argued that the plaintiff had no evidence that it put it there or that Cheema had actual or constructive notice of its presence. Ms. Davis opposed the motion on two bases: (1) she argued that Cheema employees had constructive notice of the kitty-litter-type substance, and (2) she argued that the Cheema employees put the kitty-litter-type substance in the parking lot.

The court determined that Ms. Davis failed to prove constructive notice because she had no evidence that the kitty-litter-type substance was on the ground for such a period of time prior to her fall that Cheema employees would have discovered it had they exercised reasonable care. Her reliance on possibilities and speculative inferences about how long the kitty-litter-type substance was in the parking lot was not enough to meet her burden of proof.

Nevertheless, the court held that there was a genuine issue of material fact as to whether Cheema employees put the kitty-litter-type substance in the parking lot. Cheema did not contest Ms. Davis’s argument that kitty litter is generally used by gas stations to soak up fluid spills. Moreover, while Cheema produced a female employee who insisted she was the only employee on duty that night, Ms. Davis testified that she was assisted by a male cashier. Thus, Ms. Davis presented enough evidence to create a genuine issue of material fact as to whether Cheema created the condition. Ms. Davis was permitted to pursue her claim on this basis only.

Take-Away: Speculation is not enough for a constructive notice claim. There must be affirmative proof that an unreasonably dangerous condition existed for a certain period of time prior to the accident.

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

It's a Matter of Time.....and Signs

On October 3, 2013, plaintiff visited a Wal-Mart store in Houma, Louisiana. As she approached the cash register to check out, plaintiff slipped and fell on the ground, which caused her injuries. Around the time of the accident, plaintiff saw a Wal-Mart employee operating a waxing machine, but she could not recall what caused her to fall. Other witnesses, including the plaintiff’s husband, could not identify anything that would have caused the fall. A Wal-Mart manager recalled passing the location where the accident occurred and concluded that the area was dry, and added that it was company policy to secure an area prior to waxing it.

Defendant, Wal-Mart Louisiana L.L.C., filed a motion for summary judgment arguing the plaintiff had failed to produce evidence to support two elements of her claim. First, Wal-Mart argued that there was insufficient evidence to satisfy the “cause-in-fact” element of the plaintiff’s negligence claim. Second, and in the alternative, Wal-Mart argued that the plaintiff did not provide enough evidence to prove a crucial element of the Louisiana’s merchant premises liability act.

Turning to their first argument, Wal-Mart argued that the plaintiff had failed to positively demonstrate that an unsafe condition in the store caused her injury. Wal-Mart cited to deposition testimony of the plaintiff and her husband, and noted that both did not know what caused her to slip and fall. Plaintiff argued that there were inferences to suggest that the wax on the floor caused the slip and fall.

Regarding Wal-Mart’s second and alternative argument, the company focused on a major element in Louisiana’s merchant premises liability act. Louisiana Revised Statue 9:2800.6 (pdf) governs a negligence action against a merchant for damages resulting from injuries sustained in a slip and fall accident. Under that statute, a merchant owes a duty “to persons who use his premises to exercise reasonable care to keep his … floors in a reasonably safe condition.” The plaintiff’s claim is governed by the merchant statute, which requires that a plaintiff satisfy his burden of proof by establishing:

  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. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Wal-Mart focused on element (1) of this statute and argued that the plaintiff had failed to demonstrate that there was a condition in the store that presented an unreasonable risk of harm. Most notably, Wal-Mart argued that the plaintiff solely relied on the fact that she fell, and could not demonstrate what condition had created an unreasonable risk of harm that was foreseeable. In opposition, plaintiff argued that there were inferences that suggested that the recent wax coating on the ground was the unsafe condition.

After reviewing the law, facts, and arguments from both parties, the court agreed with the defendant, Wal-Mart. The court concluded that the plaintiff had failed to make a positive showing of an unreasonable condition existing prior to her slip and fall.

Take-Away: The fact that a store employee is maintaining an area within a store does not necessarily mean an unreasonably dangerous condition exists.  The person making the claim against the premises owner must prove that the condition created an unreasonable risk of harm that was foreseeable.  In order to avoid such claims, a premises owner should take steps to securely block-off an area that is being fixed or undergoing maintenance.  Additionally, if the work performed requires a drying period, a premises owner should keep an area greater than that which was worked-on blocked off for an appropriate amount of time to ensure its safety.

 

This article was co-authored by Carlos Benach, a law clerk at Irwin Fritchie Urquhart & Moore LLC.

Close Proximity Does Not Mean Constructive Knowledge

Plaintiff, Elouise Burns, filed a personal injury lawsuit due to a slip and fall at a Winn-Dixie grocery store.  Burns alleged that her fall was due to an accumulation of water or other substance on the floor in the ice cream aisle.  Winn-Dixie filed a summary judgment motion arguing that the plaintiff failed to meet the requisite burden of proof governing negligence claims against merchants, which is set forth in La. R.S. 9:2800.6 (pdf).  In particular, Winn-Dixie argued that plaintiff failed to show that its employees created or had actual or constructive notice of the alleged unreasonably dangerous condition, a necessary element of her claim.  

In support of its motion, Winn-Dixie used the plaintiff’s deposition testimony to demonstrate that she did not see the liquid on the floor prior to her fall and that she had no evidence of how long the liquid had been on the floor.  In opposition, the plaintiff attempted to demonstrate constructive notice of the liquid by noting that the location of her slip and fall was in close proximity to the store’s cash registers and the view from that area was clear and unobstructed.  In support of her constructive notice argument, plaintiff relied upon the affidavit of a law clerk from her attorney’s firm, who visited the store almost two weeks after Winn-Dixie filed the Motion for Summary Judgment. Also, at the hearing on the motion the plaintiff introduced her responses to Winn-Dixie’s written discovery, as well as Winn-Dixie’s responses to her written discovery in an effort to show there were no “wet floor” signs in the area where she fell. After considering this evidence, the trial court granted summary judgment in favor of Winn-Dixie and dismissed the plaintiff’s claims.  The plaintiff then filed a Motion for New Trial arguing the following:  (1) the grant of summary judgment was contrary to the law and evidence; (2) plaintiff had newly discovered evidence to defeat summary judgment; and (3) granting of a new trial was within the trial court’s discretion and in the interest of justice.  The trial court denied the plaintiff’s Motion for New Trial and plaintiff appealed. 

La. R.S. 9:2800.6 governs merchant liability for slip and fall cases and requires that a claimant has the burden of proving, in addition to all other elements of his or her cause of action, the following elements:  1) that the condition presented an unreasonable risk of harm to the claimant and the risk of harm was reasonably foreseeable; 2) that the merchant either created or had actual or constructive notice of the condition causing the damage, prior to the occurrence; and 3) that the merchant failed to exercise reasonable care.  Constructive notice is defined as the condition must have existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.  Although there is no specific time period, “positive evidence” is required to demonstrate constructive notice to meet this burden. 

The appellate court was critical of the evidence plaintiff presented in her opposition to Winn-Dixie’s motion.  First, the court noted that the law clerk’s affidavit offered no proof that the clear liquid on the floor—the alleged cause of the plaintiff’s fall—had been there for a period of time sufficient to create the requisite constructive notice.  Next, plaintiff’s “close proximity” argument was insufficient to show constructive notice as the statute specifically provides that an employee’s presence alone does not suffice as constructive notice. Further, the plaintiff’s “newly discovered evidence” argument was discredited.  This evidence consisted of an undated affidavit of an alleged witness who claimed she saw the plaintiff slip in the aisle, that there were several employees in that vicinity, that one of the employees commented about the lack of signage, and that the freezer had been leaking for quite a while.  The same witness—the plaintiff’s former daughter-in-law—had given a written statement six months after the accident that failed to mention any of these “facts.”  The appellate court concluded that the plaintiff could have obtained the affidavit prior to the summary judgment hearing, and further concluded that the trial court’s refusal to consider these unsworn and unverified written statements, which were not of sufficient evidentiary quality to be considered, was correct. In sum, the plaintiff failed to come forward with sufficient evidence in support of her claim that the store owner had actual or constructive notice of the alleged hazardous condition.   

Take Away:  In slip and fall cases where a claimant is attempting to establish that a store owner had constructive knowledge of a hazardous condition, the claimant must provide positive evidence to show the period of time that that the hazardous condition existed and that this time period was sufficient to place the merchant on notice of the condition.

This article was co-authored by Darleene Peters, Counsel at Irwin Fritchie Urquhart & Moore LLC.

A Not So Happy Meal - McDonalds Wins Appeal of Spilled Coffee Case

A patron of a McDonald’s drive-thru sued the restaurant to recover for injuries he sustained after three cups of coffee fell out of a cup holder and spilled onto his lap. The patron brought claims against McDonald’s under the Louisiana Products Liability Act (LPLA) and in negligence. The product liability claim was based on plaintiff’s allegations that McDonald’s (1) overheated the coffee to an unsafe temperature in deviation from its internal standards and (2) failed to provide adequate warnings of the coffee’s temperature. The negligence claim was based on the alleged failure of McDonald’s employee to securely place the coffee cups in the cup holder.

The trial court granted McDonald’s motion for summary judgment and dismissed all of the patron’s claims. On appeal, the Louisiana Fifth Circuit noted that under the LPLA product manufactures can be held liable for damages caused by an “unreasonably dangerous” product when the product is being used normally (i.e. used for its intended purpose). Turning to the patron’s claim regarding the unsafe temperature of the coffee, the court found that the evidence failed to show that a genuine issue of material fact existed as to whether the coffee was unreasonably hot. Specifically, the court noted that the patron did not produce evidence of any standards regarding coffee temperature or that McDonald’s had deviated from those standards. Furthermore, the only evidence regarding the temperature of the coffee was a statement from the patron himself and photographs of the burn injury. The court found the photographic evidence inadequate because courts cannot presume the unreasonably dangerous characteristic of a product (the coffee’s temperature) solely on the fact that the product caused an injury.

Regarding the patron’s claim that McDonald’s failed to adequately warn him of the temperature of the coffee, the court recognized that manufactures have a duty to provide adequate warning of dangers inherent in the normal use of a product that are “not within the knowledge of or obvious to an ordinary user.” In this case, however, the court determined that the patron was a “sophisticated user” because he frequently bought coffee from McDonald’s. As a sophisticated user, the patron was presumed to have knowledge of the danger of hot coffee the restaurant did not have a duty to provide an additional warning to him.

With regard to the patron’s general negligence claim, the court established that restaurants do have a duty to use reasonable care to protect their customers. According to the court, McDonald’s had a duty to handle its cup holders and “to go” paper products being served out of the drive-thru window in a way that did not unreasonably endanger patrons.  Nevertheless, the court held that the patron did not provide sufficient evidence to show that there was a genuine issue of material fact as to whether McDonald’s had breached its duty. The court based its determination on the fact that the patron’s only evidence regarding the improper handling of the cup holders was a hearsay statement made by the patron in which he claimed that a McDonald’s employee had told him that she failed to push the cups down into the tray. Furthermore, the patron did not testify that he ever personally saw that the cups were improperly secured in the cup holder, coupled with the fact that the patron had successfully taken the tray from the employee and had placed it on his lap before the cups fell.

Take-Away: The mere fact that a product caused an injury does not mean that it is unreasonably dangerous. Restaurant owners do, however, have a duty to use reasonable care to protect their customers when serving them food or beverages out of a drive-thru window. Such owners would be well served to take reasonable steps to ensure that their employees follow proper procedures related to the handling and serving of such products.

This article was co-authored by Matthew Averill, a 2015 summer 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.

Actual Proof Required - Plaintiff's Claim that Because She Slipped There Must Have Been a Hazard Dismissed

On a rainy morning, plaintiff arrived at Dillard’s for a make-up appointment just as the store opened. Plaintiff recalled that the store entrance had mats, and assumed that she wiped her feet on them. As she walked toward the escalator, plaintiff slipped and fell. She testified that she felt as if she had stepped on “ice or something.” However, neither she nor the employees who came to her aid could identify any substance on the floor. Plaintiff sued Dillard’s, claiming that the store did not exercise reasonable care to keep its aisles free of hazardous conditions.

The court determined that the Louisiana Merchant Liability Statute, R.S. 9:2800.6, governed the plaintiff’s claim. That law requires a plaintiff who claims to be injured because of a fall on a merchant’s premises to prove, in addition to all other elements of her cause of action, the following:

  1. That the condition presented an unreasonable, foreseeable risk of harm;
  2. That the merchant either created the condition or had actual or constructive notice of the condition prior to the accident; and,
  3. That the merchant failed to exercise reasonable care.

The court found that in order to prove a merchant breached its duty, a plaintiff must make a “positive showing” that the hazardous condition existed for so long before the fall that a reasonable merchant would have discovered it. A plaintiff who merely shows that a hazardous condition existed, without additional evidence as to when it appeared, has failed to carry the burden of proving constructive notice.

Plaintiff argued that there must have been a dangerous condition present because that was the only explanation for her fall. Plaintiff assured the court that she was very familiar with the shoes she was wearing and had not slipped in them before. The court rejected this argument. It reasoned that plaintiff’s theory failed to consider the possibility that, for example, her own conduct caused the fall. The court held that the argument that the unsafe condition was “obvious” because of the fall did not amount to the positive evidence required by law. The court found there was simply no factual or evidentiary support for the plaintiff’s claim.

In order to prove the notice element, plaintiff argued that because the store had just opened, Dillard’s had exclusive control over the area of the slip. Therefore, according to plaintiff, Dillard’s must have either created the condition or allowed it to exist for hours. The court rejected this argument as well. The court reasoned that the mere fact employees were in the store was irrelevant. Further, the court specifically noted that merchants do not have the burden to prove the absence of a spill. Instead, the court found, without any actual evidence of the length of time the alleged hazard existed, plaintiff failed to prove the notice element of her claim. Thus the court here held that after admitting she did not know whether the defendant’s employees created or knew of the alleged hazard, did not know how long the alleged hazard existed before she slipped, and did not even know what the hazard was, the plaintiff failed to meet her burden of proof under R.S. 9:2800.6. Therefore the court granted summary judgment for the defendant, dismissing plaintiff’s claims with prejudice.

Take-Away: Business owners are not insurers for their customers, absolutely liable for any injuries on their premises. Rather, a plaintiff who slips and falls in a business must make a positive showing that a hazard existed and that it was present for an unreasonably long time. The act of falling alone proves neither.

This article was co-authored by Andrew Cox, a summer associate at Irwin Fritchie Urquhart & Moore LLC.

Rain Keeps Coming Down On Me . . . And Getting In My Store

Plaintiff went to the Petco store to drop off her daughter’s dog for a grooming appointment at the store’s grooming salon.  As she was leaving the store, she turned around to go back to the counter and slipped on a wet area on the floor and fell, injuring herself. Her injuries from the fall resulted in a total hip replacement. 

On the morning of the accident it was raining, though once plaintiff was in the salon she did not observe any water on the floor. Further, she did not slip when she walked from the salon door to the grooming counter. Rather, plaintiff fell as she was walking back to the salon door from the counter. Plaintiff contended that she turned, stepped, and her foot slipped out from under her. She also claimed that she turned around in response to a Petco employee calling out to her to retrieve her dog’s leash. After plaintiff fell, the right side of her pants was wet. And, when plaintiff’s husband ran into the store to help her, he felt the floor near where she had fallen, and it was wet. None of the Petco employees recalled seeing any water on the floor where plaintiff fell. 

In opposition to a summary judgment motion filed by Petco, plaintiff argued that the main entrance to the Petco store had an awning to protect customers from the rain, but there was no similar awning over the door of the grooming salon. Also, there was no protective mat or towel on the floor of the grooming salon or any wet floor sign or orange cone. Plaintiff further claimed that Petco’s employees were aware that when people and dogs came into the grooming salon on a rainy day, such as the one in question, they brought in moisture.

The court noted that Louisiana Revised Statue 9:2800.6 (pdf) governs a negligence action against a merchant for damages resulting from injuries sustained in a slip and fall accident. Under that statute, a merchant owes a duty “to persons who use his premises to exercise reasonable care to keep his … floors in a reasonable safe condition.” The plaintiff’s claim is governed by the merchant statute, which requires that a plaintiff satisfy his burden of proof by establishing:

(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. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Applying this standard, the court found that summary judgment was not appropriate because there was a genuine dispute of material fact as to whether the condition—water on the floor near the entrance of the grooming salon—presented an unreasonable risk of harm; there was a genuine dispute of material fact as to whether Petco had constructive notice of the condition; (This conclusion was based on the fact that when the plaintiff arrived at Petco it had been raining for approximately two hours and the salon had also been open for two hours. It was estimated that at least twelve other dogs and their owners had walked through the grooming salon entrance and the inside before the plaintiff arrived and Petco was aware that these owners and their dogs brought with them moisture from the rain; and there was a genuine dispute of material fact as to whether Petco failed to use reasonable care. The Court noted that the grooming salon entrance had a very small awning over the door that provided far less protection than the awning over other parts of the store and Petco did not place any protective mats inside the grooming salon in spite of its policy to use as many mats as possible during severe weather. Additionally, there was no sign or mark of any kind to warn customers that the floor may be wet, despite the fact that it was a rainy day and moisture was being tracked into the store. 

Take-Away: A premises owner should anticipate that moisture will be brought into their store on a rainy day and take the appropriate precautions such as placing mats near the entranceway and/or placing wet floor signs in the appropriate areas.

Smile, You're On Candid Camera

While shopping at a Brookshire Brothers' grocery store, Skylur Johnson slipped and fell on a wet substance on the floor in one of the aisles. Ms. Johnson claimed that as a result of the fall she sustained a medial meniscus tear to her right knee and also injured her right shoulder and arm. She later filed a lawsuit against Brookshire Brothers--Johnson v. Brookshire Brothers, Inc., alleging that Brookshire Brothers was liable to her under Louisiana's merchant liability statute, La. R.S. 9:2800.6 (pdf). In response, Brookshire Brothers filed a motion for summary judgment seeking dismissal of Ms. Johnson's claims. The company contended that Ms. Johnson could not demonstrate the necessary elements of her claim under 9:2800.6, which requires the plaintiff to prove: (1) the existence of a condition that presented an unreasonable risk of harm to the claimant; (2) that the merchant either created the condition, or had notice of the condition; and (3) that the merchant failed to exercise reasonable care.

In support of its summary judgment motion, Brookshire Brothers offered as evidence video surveillance footage of the accident that showed another customer dropping a jar in the aisle, disposing of the broken jar, and leaving the spill in the aisle. The footage also established that Ms. Johnson fell in the area where the jar was dropped less than five minutes after the spill occurred. Because the video footage clearly showed that another customer--and not an employee of the store--dropped the jar, the court focused on whether Brookshire Brothers had notice of the spill. The Court pointed out that in order to prove notice on the part of the store Ms. Johnson had to demonstrate that the spill remained on the floor for such a period of time that in the exercise of reasonable care Brookshire Brothers' employees would have discovered the spill.

In addressing this issue, the court considered a 1997 Louisiana court opinion cited by Brookshire Brothers in which the court held that a grocery store did not have notice of a banana peel that was left on the floor of a store aisle for five minutes prior to that plaintiff's fall. In that case, the evidence also showed that store personnel had been in the particular aisle shortly before the creation of the hazardous condition. The court noted that the case at hand was similar to the banana peel case in that the spill occurred within five minutes of the accident and store employees were in the area a short time before the spill occurred. Ultimately, the court granted Brookshire Brothers' motion and dismissed all of plaintiff's claims because the video surveillance supported Brookshire Brothers' assertions, and because Ms. Johnson failed to oppose any of these arguments.

Take-Away: A defendant in a slip-and-fall case can get the case dismissed early if it is able to establish that it did not create the complained of condition and that an insufficient amount of time passed between the time the condition came into existence and the accident.

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

A Video Is Worth a Million Words

On September 7, 2009, a grocery store patron named Kenya Blair visited a Brothers Food Mart to buys chips and soda. Upon entering the store, the patron passed in front of two aisles, and then went down the third aisle to the rear of the store where the drink coolers were located. She then started toward the front, proceeding down the middle aisle where the chips were located. There she slipped and fell on some fluid left on the floor by a mop, allegedly injuring her neck and back. She subsequently filed a lawsuit alleging personal injury claims against the store and its insurer in the Second Parish Court for the Parish of Jefferson. 

At the time the patron entered the store, a day laborer named “Jose” was mopping the floor. He had positioned a “Wet Floor” sign in front of the display racks between the second and third aisles. The patron testified that she entered the store and immediately proceeded to the back, and she did not notice either Jose or the “Wet Floor” sign at the front of the aisles.  She testified that there definitely was no “Wet Floor” sign located at the back of the store or in the middle aisle.  

A manager named Tony Abdel was present at the store at the time of the accident. He testified that he saw the patron fall while behind the counter at the front of the store. He testified that the appropriate procedure for mopping the floor is to put down three “Wet Floor” signs, then sweep the floors, and then mop with a mixture of water and bleach.  Further, he testified that one of the “Wet Floor” signs is supposed to be placed in the front of the store, and the other two signs are supposed to be moved to each section as it is mopped.  And, he testified that all three “Wet Floor” signs were in use and properly placed at the time of the accident, including a sign in the aisle being mopped.  

A cashier named Hannah Vancour was behind the front counter facing the aisles on the date of the accident.  She testified that she saw a “Wet Floor” sign directly in front of her and another in the center aisle where the patron fell. Notably, however, the cashier acknowledged that she was in a personal relationship with the manager.

A videotape of the accident was introduced into evidence at trial.  It showed Jose mopping the floor at the center aisle, and moving the “Wet Floor” sign at the front of the store.  The videotape did not show the back of the store or the bulk of the aisles, and it did not show Jose moving any other “Wet Floor” signs or placing a “Wet Floor” sign in the center aisle. At trial, the manager admitted that there were eight to ten video cameras placed in various areas of the store.  He testified that he saved only the video of the front of the store because it provided the best view of the accident.

Following trial, Judge Roy M. Cascio rendered judgment in favor of the patron plaintiff and awarded damages. The Court found that the hazard on the aisle floor created an unreasonable risk of harm and that the store failed to exercise reasonable care. Concerning the latter holding, the Court found that no “Wet Floor” sign was placed in the aisle or at the back of the store where the patron entered the middle aisle.   

The store appealed to the Louisiana Fifth Circuit Court of Appeals, arguing that the trial court erred in finding the store liable and in failing to assess comparative fault to the patron. The Court of Appeals affirmed the judgment of the Trial Court. The Court reasoned that there was sufficient evidence to support the Trial Court’s holdings, including the patron’s testimony. In addition, the Court was particularly moved by the fact that the manager testified that there were eight to ten surveillance cameras in the store providing eight to ten different views of the store, yet he only retained one of those eight to ten different views. The Court noted that there is a legal presumption that evidence that a litigant fails to produce is detrimental to his case, unless the failure to produce the evidence is adequately explained. And, the Court concluded: “Surely at least one, and perhaps several of those views, would have provided a view of the ‘Wet Floor’ sign, had it been in the wet aisle.  It is a fair conclusion of fact that the missing camera views were not favorable to the party which erased them.”

Take-Away: Save all your video footage from the date of an accident. While only a few minutes of footage from one or two cameras may, at first, appear to capture every relevant detail, you may discover later that other footage from those same or different cameras would have been the difference between winning and losing a case.

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

A Merchant's Duty of Reasonable Care

On July 3, 2006, Charlene Williams patronized Feed Sales & Service, a retail store owned by Howard Sellers in Shreveport, Louisiana. The store had a gravel parking lot and several poured-in-place concrete steps leading to the entrance. The steps had been finished with a steel brush to prevent slickness, and the edge of each step was painted red for visibility. There were also two handrails, one on each side, cemented into the ground. Williams alleged that, as she exited the store down the steps, she tripped and fell, sustaining injuries to her arms and legs. According to Williams, her left foot required surgery as a result of the incident. Williams filed suit against the store, Sellers, and his insurer, State Farm. After a bench trial, the trial court entered judgment in favor of the defendants, noting, “[T]he plaintiff is one of the least credible witnesses that I have ever heard.” Williams appealed the trial court’s judgment.

 In order to prevail on her claim Williams had to prove that the steps did presented an unreasonable and foreseeable risk of harm pursuant to La. R.S. 9:2800.6 (pdf), known as the Claims Against Merchants statute. That statute states, in pertinent part:

 A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.

B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:

(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. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Failure to prove any one of the enumerated requirements is fatal to a plaintiff’s case alleging premises liability against a merchant.

Williams argued that gravel on the steps created an unreasonable risk, similar to wet paint or a hole in the ground, and that was risk was foreseeable. She further argued that Sellers had actual knowledge of the condition of the steps, because he was in charge of keeping gravel off the steps, and he failed to warn his costumers about the hazard. Williams asserted that the trial court erred in finding that she failed to carry her burden of proof under the Claims Against Merchants statute. The Second Circuit Louisiana Court of Appeal disagreed. 

The Second Circuit noted that when the trial court’s findings are based on determinations regarding credibility of witnesses, great deference is demanded. The trial court found that Williams was not a credible witness, and the record noted several inconsistencies in her testimony. There was a question of whether Williams tripped down the steps at all. Moreover, the Second Circuit found that Williams failed to prove that the steps posed an unreasonable risk of harm. Williams testimony was inconsistent on whether she even saw gravel on the steps, and the EMS responder testified that he examined the steps after the accident and did not notice any gravel. Sellers also testified that he routinely went up and down the steps without incident, and never had a single accident on the steps. The Second Circuit held that the trial court did not err in entering judgment for the defendants, given the conflicting testimony in the record.

Take-AwaySelf-serving statements alone are insufficient to establish an unreasonable and foreseeable risk of harm under La. R.S. 9:2800.6.

This article was co-authored by Kelly Juneau, a member of 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.