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.

Existence of Oil Slick Alone Not Enough

On January 3, 2009, Karen Finley slipped and fell on an oil slick in the parking lot of a Racetrac convenience store in Shreveport, Louisiana. Finley sued Racetrac under La.R.S. 9:2800.6 (pdf), which requires plaintiffs to prove several elements in order to succeed on a premises liability claim. To satisfy the statute’s second element, a plaintiff must establish that the defendant created the dangerous condition, knew of it, or had constructive knowledge of it prior to the accident.

A defendant has constructive knowledge of a dangerous condition when the circumstances show that he should have known of the condition. When relying on constructive knowledge, a plaintiff must show that the dangerous condition existed for a period of time sufficient to place the defendant on notice of its existence. A plaintiff is not required to prove with eyewitness testimony that the hazardous condition existed for a certain number of minutes or hours. Instead, the court can infer from the circumstances surrounding the fall that it is more probable than not that the condition existed long enough prior to the fall for the defendant to have discovered and corrected it.

Finley alleged that Racetrac either knew or should have known of the dangerous condition the oil slick created, and she claimed her injuries would not have occurred if Racetrac had taken reasonable steps to clean up the oil. Despite Finley’s accusations, the trial court granted summary judgment in favor of Racetrac. The court found that Finley was unable to show Racetrac knew or should have known of the oil slick prior to her fall. The court also found that Finley was unable to establish the amount of time the hazardous condition had been present; and as a result, the court could not infer that Racetrac had sufficient notice of the hazard. Finley appealed the judgment of the trial court.

On appeal, in an attempt to establish the amount of time the oil slick existed prior to her fall, Finley relied on a cell phone photograph showing that the oil had begun to soak into the concrete at the time she slipped on it. She claimed the photograph showed that the oil was present for a sufficient amount of time to place Racetrac on notice of the dangerous condition. However, the appellate court disagreed with Finley and found that the photograph, which was taken after her fall, proved only that the oil slick existed. Because Finley could not prove Racetrac had constructive notice of the dangerous condition, the appellate court affirmed the trial court’s conclusion that Racetrac was entitled to summary judgment.

Take-Away:  In a slip and fall case, the mere existence of a dangerous condition is insufficient to establish liability against a premise owner where there is no evidence of how long the condition existed prior to the accident or that the premise owner knew of the condition before-hand.

This article was co-authored by Mike Boyd, a summer associate at Irwin Fritchie Urquhart & Moore LLC

Operator Error: Understand Your Insurance Coverage

The plaintiff Bernadette Rubin (the “customer”) was allegedly injured in a slip-and-fall accident at a Super 1 Foods grocery store owned by Brookshire Grocery Company. The store was built by Ridgemont, a general contractor, pursuant to a construction contract between Brookshire and Ridgemont. In the lawsuit initiated by the customer against the store owner, the store owner filed a third party complaint against the general contractor and its liability insurer, Amerisure, alleging: (1) the contractor owed the store owner tort contribution because the contractor was at fault; (2) the contractor contractually agreed to indemnify and procure insurance coverage for the store owner; and (3) the store owner was entitled to insurance coverage under the Amerisure policy issued to the contractor. In response, the contractor and its insurer filed a motion for summary judgment seeking dismissal of the claims filed by the store owner on the following grounds: (1) any contractual indemnification obligation owed by the contractor to the store owner was null and void under Louisiana law; and (2) the store owner was not an insured under the insurance policy issued to the contractor.

 In considering the summary judgment arguments, the court first noted that as the store owner did not argue it was a named insured under the policy, the question becomes whether the owner was an additional insured under the policy. On that issue, the store owner argued that under the relevant provision of the policy—the Contractor’s Blanket Additional Insured Endorsement—it was an additional insured under the policy. The court, however, noted that the building contract only required the general contractor to purchase and maintain “completed operations” coverage, noting that the Endorsement makes clear that the policy expressly limits coverage for an additional insured to “liability arising out of . . . your ongoing operations, unless the written contract or written agreement also requires completed operations coverage (or writing to the same effect), in which case the coverage provided shall extend to your completed operations for that additional insured.” The court further noted that pursuant to the contract, the contractor was only required to include the store owner as an additional insured under the Amerisure policy from the “date of commencement until date of final acceptance.” And, the contractor was only required to purchase insurance to protect the contractor from claims for damages because of bodily injury “which may arise out of or result from the contractor’s operations under the contract.” Although the contract did not define “operations,” the Court interpreted the term to mean actual operations, or work of the contractor while the grocery store was being constructed, and found that the contract did not require insurance for damages arising out of the result of completed operations, particularly as the policy defines the term. Accordingly, the court held that the store owner was not an additional insured under the policy after the construction of the store was completed, which was when the customer was allegedly injured in a slip-and–fall accident on the premises, and thus there was no coverage under the contractor’s insurance policy.

Take-Away: It is of the utmost importance that premise owners fully understand the scope and nature of any insurance coverage they may have, or not have, to ensure they are properly protected against any risk or loss.

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

"Clean" Slip Can Defeat Defendant's Motion for Summary Judgment

The plaintiff, Dorcus Williamson, was walking into a stall in the women’s bathroom of a Wal-Mart, when she slipped on a wet substance on the floor and fell. Mrs. Williamson and her husband filed suit against Wal-Mart for her injuries pursuant to La. R.S. 9:2800.6 (pdf). Wal-Mart then filed a motion for summary judgment with the trial court on the grounds that the Williamsons (“the plaintiffs”) were unable to produce any factual evidence to establish that it had either actual or constructive knowledge of the slippery condition, and that they failed to establish the amount of time that the substance had been present on the floor. The trial court granted the motion and the plaintiffs subsequently filed an appeal, Williamson v. Wal-Mart Stores, Inc.

La. R.S. 9:2800.6 governs merchant liability for slip and fall cases and imposes upon a plaintiff the burden of proving three elements in order to prevail: 1) that the condition presented an unreasonable risk of harm to the claimant and that 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 incident; and 3) that the merchant failed to exercise reasonable care.


On appeal, the court determined that the trial court erred in granting Wal-Mart’s motion for summary judgment. Significant to the court was the collective testimony of Mrs. Williamson, Mr. Williamson, and a Wal-Mart employee, who testified that there was a wet condition on the floor and on Mrs. Williamson’s pants after her fall, and that the substance smelled like a pine oil cleaning solution. In addition, although the custodian on duty testified that he does not use pine oil cleaning solution, he stated that earlier that same day he had picked up a bottle of pine oil and placed it onto his cart, that later in the day he noticed that the cart was missing, and that Wal-Mart employees often took things from his cart. The court determined that this testimony supported the inference that a Wal-Mart employee, and not a patron of the store, created the hazard upon which Mrs. Williamson slipped. The court largely based this determination on the evidence that the substance was a cleaning supply and not a beverage or other substance that a patron would likely possess in the store. As a result, the court reversed the trial court’s judgment granting Wal-Mart’s motion for summary judgment and remanded the case to the trial court for further proceedings.


Take-Away: In a slip and fall case, the substance that allegedly caused the accident can play a crucial role in a court’s determination of whether or not the merchant created the hazard. Where it is unlikely that a patron possessed the substance at issue, a court may find that there is an inference that the store created the hazard, which can be enough to defeat a motion for summary judgment.


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

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. 

Without evidence of Wet Floor, Plaintiff's Claims Dry Up

The plaintiff, Kathleen Tilden, was walking into the dining area of Tommy’s, a restaurant in New Orleans, when she slipped and fell. As a result of the fall, Mrs. Tilden allegedly suffered injuries to her neck, shoulder, and back. Mrs. Tilden and her husband filed suit against the restaurant alleging that she fell as a result of a wet surface. At trial, the court first excluded testimony from the plaintiffs’ witnesses who claimed that the restaurant placed rugs onto the floor after the accident, on the grounds that the placement of the rugs constituted a subsequent remedial measure. The plaintiffs attempted to argue that an exception to that general rule should apply, allowing such evidence to be admitted to attack the restaurant owner’s credibility.  The court determined that the owner’s previous testimony did not deny use of the rugs; therefore a credibility attack on those grounds was baseless. 

During the trial, the plaintiffs produced a number of witnesses to Mrs. Tilden’s fall. None of the witnesses, however, could identify any particular defect or condition of the floor that caused her to fall. Although the plaintiffs generally asserted that the floor was slippery, none of the witnesses testified that they had felt any moisture on the floor or had seen any evidence that Mrs. Tilden’s clothes were wet after the fall. The jury concluded that no condition caused Mrs. Tilden’s fall, and therefore assessed no fault to the restaurant. Mrs. Tilden filed an appeal, Tilden v. Blanca.

On appeal, the plaintiffs asserted that the trial court erred in excluding evidence regarding the placement of additional rugs after the accident. The plaintiffs argued that the evidence was admissible to (a) attack the restaurant owner’s credibility, and (b) as an admissible remedial measure. The Louisiana Fourth Circuit Court of Appeal disagreed. Under Louisiana law, a subsequent remedial measure, such as the restaurant’s use of rugs on the floor after an accident, cannot be admitted into evidence to prove negligence or culpable conduct. Instead, it can be used for a number of limited purposes, one of which is to attack a witnesses’ credibility. The Fourth Circuit agreed with the trial court, and found no credibility issue with the owner’s prior testimony. The court next determined that there was no evidence that the restaurant had used the rugs until after the fall, rendering evidence of their use inadmissible as a subsequent remedial measure.

Finally, the court determined that even if the trial court erred in excluding witness testimony on the rugs, the plaintiffs still failed to meet their burden under Louisiana Revised Statute 9:2800.6(B)  (pdf) because none of plaintiffs’ witnesses could identify or produce evidence of the cause of Mrs. Tilden’s fall.

Take-Away: In Louisiana, subsequent remedial measures are inadmissible as evidence on behalf of the plaintiff, save for a few, limited exceptions. In addition, a plaintiff must present some evidence to support a cause of a slip and fall claim brought under Louisiana Revised Statute 9:2800.6(B).

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

The Mop (and Defendant's MSJ) Won't Hold Water

Plaintiff and her son stopped at Wendy’s for breakfast while traveling from Pontchatoula to Metairie for an early morning soccer game.  While in the restaurant, plaintiff slipped and fell in a puddle of water outside of the bathroom door.  Plaintiff sued Wendy’s for her injuries.  Wendy’s filed a Motion for Summary Judgment, arguing that plaintiff was unable to satisfy the second element of theLouisiana Merchant Liability Act (pdf).   In order to win a successful slip and fall claim, plaintiffs have the burden of proving 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 constructive notice of the condition which caused the damage, prior to the occurrence; and, (3) The merchant failed to exercise reasonable care. 

Wendy’s argued that plaintiff was unable to establish that they had either created or had constructive notice of the water before plaintiff fell.  In its opposition to defendant’s motion, plaintiff cited the deposition testimony of Michael Pace, an employee who was working on the morning of the fall.  Mr. Pace testified that he had seen similar puddles of water in the area near where plaintiff fell once or twice per week in the early morning hours.  He attributed the water to the previous night’s mopping and explained that the area where plaintiff fell was a bit uneven with the rest of the floor, causing excess water to pool.  He testified that the water was likely the result of an employee failing to dry mop the floor correctly.  Mr. Pace also testified that the plaintiff and her son were among the first customers that morning, that the store was rarely busy that early in the morning, and that they eventually discontinued breakfast due to lack of business. 

Although Mr. Pace did not see the puddle prior to plaintiff’s fall, the court found that Mr. Pace’s testimony would support a verdict in plaintiff’s favor as to whether the merchant created the condition which caused the damage.  Defendant’s motion for summary judgment was denied as a matter of law.

Take-Away: Employee testimony regarding previous experiences with the same or similar allegedly dangerous condition can defeat defendant’s motion for summary judgment under the Louisiana Merchant Liability Act. 

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

The Not-So-Happy Hour: Slip and Fall at O'Charley's

While dining at an O’Charley’s restaurant in Lake Charles, Louisiana, Carol Henry slipped on a puddle of water and fell. She claimed to have sustained various injuries, including blackout episodes. She filed a lawsuit against the restaurant under the Louisiana premises liability statute.  The statute imposes a duty on retailers and restaurants, such as O'Charley's, to exercise reasonable care to keeps floors in a reasonably safe condition for patrons.

To succeed under the premises liability statute, Ms. Henry was required to prove that the condition of O’Charley’s floor presented an unreasonable risk of foreseeable harm and that O’Charley’s either created the puddle or had knowledge of, or should have had knowledge of, the existence of the puddle and failed to clean it before she fell.

O’Charley’s filed a motion for summary judgment of Ms. Henry’s claim, arguing that there was no evidence that it knew or should have known of the puddle of water prior to her fall. In the event that the court denied its request, O’Charley’s also sought dismissal of her claim for damages relating to her alleged blackout episodes because there was no evidence that they were related to her slip and fall.  Five witnesses testified about the incident: Ms. Henry, her dining companion, and three of O’Charley’s employees. No one could say how long the water had been on the floor prior to Ms. Henry’s fall or that any of the O’Charley’s employees knew that the water was on the floor before she fell.

According to Louisiana law, in the absence of evidence that O’Charley’s knew, or should have known, of the water prior to her fall, Ms. Henry could still defeat O’Charley’s motion if she was able to show that the restaurant actually created the unreasonably dangerous condition. Ms. Henry presented evidence showing that employees often walked through the area where she fell carrying drinks and that the employees occasionally spilled drinks in that area. Moreover, the evidence also showed that restaurant patrons rarely carried drinks through this walkway unless they carried them to the bathroom, which was an anomaly. The court held that her evidence was sufficient to create an issue of fact for trial as to whether O’Charley’s created the hazardous condition, and thus, it denied O’Charley’s request for dismissal of Ms. Henry’s entire case.

The trial court, however, did dismiss Ms. Henry’s claim for damages related to “blackouts.” She had the burden of proving that it is more likely than not that her post-accident blackout episodes were caused by her slip and fall. The court reasoned that this was a medical issue, not within common knowledge. Therefore, Ms. Henry was required to have expert medical testimony that her blackouts were caused by the accident. She had no such expert, and the evidence showed that Ms. Henry actually suffered blackouts before her fall. Consequently, the court determined dismissal of her blackout claim was appropriate.

Take-Away:  In the absence of evidence that a restaurant owner knew or should have known of a dangerous condition, the injured party can only avoid dismissal of her claims if she is able to eliminate all possible causes of the dangerous condition, leaving one with the inescapable conclusion that the condition must have been created by the restaurant owner.

This article was co-authored by Lizzi Richard, 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.

If the Carpet is not slanted, Summary Judgment must be Granted

Mrs. Judith Henry went to New Orleans Hamburger and Seafood Company restaurant (“New Orleans Hamburger”) for lunch with a group of friends. Mrs. Henry was 74 years old and was walking with the assistance of a cane. After entering the restaurant, the group walked to a table, dropped off their belongings, and then went to the counter to place their orders. On her way back to the table, Mrs. Henry took the same route she had taken on the way up to the counter. While returning to the table, Mrs. Henry’s toe apparently became caught in the carpet, causing her to lose her balance and fall. As a result of the fall, Mrs. Henry suffered a broken ankle that required four surgeries to correct and left her in a wheelchair.

Mrs. Henry and her husband filed suit against New Orleans Hamburger and its insurer and alleged that the carpet was uneven because it consisted of small squares, which formed a weave pattern that they claimed was not of uniform height. In response, New Orleans Hamburger filed a motion for summary judgment that was granted by the court, dismissing the lawsuit. The Henrys then filed an appeal, Henry v. NOHSC Houma. On appeal, the Henrys argued that the trial court erred because a genuine issue of material fact existed as to whether the carpet upon which Mrs. Henry fell was uneven, which they contended constituted an unreasonable risk of harm. And, according to the Henrys, New Orleans Hamburger had notice of the condition because it ordered the carpet and had it installed in the restaurant.

In support of its motion for summary judgment, New Orleans Hamburger submitted an affidavit from its managing partner attesting that carpet was installed in the restaurant’s dining area because uncarpeted floors can become dangerously slippery when food and beverages are spilled onto them. Further, the carpet was commercial grade and had not been altered in any way in the month between its installation and the incident involving Mrs. Henry. In addition, no other accidents involving the carpet had taken place since the restaurant opened. New Orleans Hamburger also provided an affidavit from its liability expert who had inspected the restaurant and found that the carpeted area was of a standard commercial grade and was level throughout. He also noted that the carpet’s square pattern simply represented changes in the color of the carpet, not places where the carpet had a different height.

The deposition testimony of Mrs. Henry also supported New Orleans Hamburger’s summary judgment motion. The testimony established that Mrs. Henry had been to the restaurant six times since it opened, and she had never tripped, slipped, or fallen on the carpeted floor; nor had she seen anyone else trip, slip, or fall on the floor. She also stated that she was looking down at the floor at the time of the incident so that she would know where to place her cane and she saw nothing that would present a hazard or danger on the carpet, like food or other foreign objects. Mrs. Henry admitted that the only thing that might have caused her fall was her belief that the carpet was uneven due to the “square pattern.” 

The court of appeal affirmed the district court’s granting New Orleans Hamburger’s motion for summary judgment because there was an absence of factual support for the Henrys’ claim that the carpet’s condition created an unreasonable risk of harm. The court explained that the carpet had been professionally installed, was commercial grade, and lacked any worn spots or frayed edges that could constitute a hazardous condition. In addition, the Henrys failed to show that there was a variation in carpet height resulting from the square pattern that created an unreasonable risk of harm. 

Take-Away: Not all factual disputes constitute a “genuine issue of material fact” sufficient to defeat summary judgment. And, a plaintiff has the burden of proving that the cause of an accident constitutes an unreasonable risk of harm.

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

Summary Judgment Granted Where Plaintiff Could Not Establish How Long Oil Had Been on Floor

Establishing how long a dangerous condition has actually been present with any retail establishment continues to be a key element in establishing premises liability. In Abshire v. Hobby Lobby Stores, Inc., the plaintiff alleged that she slipped and fell on an oily substance which later turned out to be potpourri oil. Hobby Lobby moved for summary judgment on the basis that there was no evidence that any of its employees had spilled oil nor was there any evidence of how long the oil had been on the floor. Finding that the spilled oil was a condition of the premises, the court applied the provisions of the Louisiana Slip and Fall Statute (pdf) and held that the plaintiff had to make a positive showing of the existence of the condition prior to the fall. Whether the period of time that the condition existed was sufficiently lengthy to require discovery by a merchant was necessarily a fact question, however, the prerequisite of showing that it at least existed for some period of time prior to the fall was an essential element of the plaintiff’s case. Here, noting that the plaintiff did not know how long the potpourri oil had been on the floor prior to her fall and did not know how the bottle came to be on a different aisle from where it was stored, the Court granted summary judgment in favor of the store owner.

 Take-Away: This case reinforces the requirement that a plaintiff at least produce some evidence as to how long an allegedly dangerous condition existed on the floor of the premises before he/she can state a prima facie case of liability. Here, it was clear that the plaintiff had absolutely no evidence (she did not even file an opposition to the Motion for Summary Judgment) which would demonstrate how long that the substance at issue – potpourri oil – had been on the floor or how it had come to be found in an aisle other than where it was originally located. Based on the lack of sufficient evidence, the Court was correct in granting summary judgment. 

French Fry "Rim" Sinks Restaurant's Motion for Summary Judgment

Although the Louisiana Slip and Fall Statute (pdf) provides a narrow avenue of potential liability, the Louisiana First Circuit’s May 8, 2009 decision in Guillory v. Outback Steakhouse of Florida, Inc. (pdf) demonstrates the relatively low evidentiary threshold that is needed to circumvent the defenses supplied under the statute. On January 28, 2006, Geraldine Guillory visited an Outback Steakhouse in East Baton Rouge Parish.  During her visit,  Ms. Guillory excused herself to visit the restroom and upon returning, Guillory allegedly slipped on a french fry and fell to the floor. A waitress who was standing at a nearby table picked up the remains of the potato while another customer helped Ms. Guillory to her feet. Guillory and her husband filed suit against Outback alleging various injuries associated with the fall. 

After the completion of discovery, Outback filed a Motion for Summary Judgment on the basis that the Plaintiffs could not offer sufficient evidence that it had knowledge of the alleged dangerous condition (the french fry) as required under Louisiana Revised Statute 9:2800.6 (pdf). The trial court agreed and granted the Motion for Summary Judgment.  On appeal, however, the First Circuit disagreed and reinstated the case against Outback. After reciting the Louisiana Slip and Fall Statute, the First Circuit recognized that a merchant cannot be liable for injuries associated with a slip-and-fall unless the plaintiff can demonstrate that the slip-and-fall was caused by a “dangerous condition” on the property, that the merchant had actual or “constructive” knowledge of the condition and, despite this knowledge, failed to exercise reasonable care. Because the plaintiffs could produce no evidence as to how the french fry ended up on the floor, the First Circuit correctly reasoned that the case would turn on whether the plaintiffs had provided sufficient evidence to demonstrate “constructive” knowledge.  Citing the Louisiana Supreme Court’s decision in White v. Wal-Mart, the First Circuit reasoned that in order to demonstrate “constructive” knowledge, the plaintiffs need only show that the condition existed for “some period of time.” 

Applying the “some period of time” standard, the First Circuit re-analyzed the testimony of the case and reversed Outback’s dismissal. The First Circuit relied principally upon the testimony of two Outback employees who testified that the french fry was “stuck to the floor” and that a “rim” had remained after it was picked up. This, together with hearsay statements of patrons that they had “seen” a piece of french fry on the floor, was sufficient for the First Circuit to conclude that there existed sufficient evidence to raise a genuine issue of material fact as to whether Outback had “constructive” knowledge of the dangerous condition. 

Take-Away:  This case demonstrates that even the slightest evidence can sometimes defeat a summary judgment motion. Although the plaintiffs could not demonstrate that any Outback employee was responsible for the fry falling to the floor, could not demonstrate that an Outback employee had seen the fry and failed to respond to it, could not demonstrate exactly when the fry fell to the floor, and offered no evidence of how it could have become stuck for a sufficient amount of time to form a “rim,” these deficiencies were not so great as to preclude the case from going to trial.

Destruction Of Surveillance Video Exposes Merchant To Liability

In Robertson v. Frank’s Super Value Foods Inc., a defendant store owner selectively edited a video surveillance tape that captured a slip and fall to eliminate pre-accident footage that would have established the defendant’s knowledge of a dangerous condition (pdf). After learning of the destruction of evidence that was potentially favorable to her case, the plaintiff amended her lawsuit to add claims for negligent or intentional destruction of evidence and impairment of civil action. 

The store owner sought summary judgment on plaintiff’s intentional destruction of evidence (pdf) claim, arguing that the plaintiff could not establish that the destruction was intentionally done to impede her case and that she could not establish that the store owner knew that she was going to file suit when it edited the tape. The trial court granted the motion, dismissed the plaintiff’s claims based on the destruction of evidence, and certified the judgment for appeal.

On appeal, the appellate court recognized that the plaintiff’s claims were broader than merely the intentional destruction claim and included impairment of her civil action and that, according to Louisiana tort law (pdf) the store owner may have breached a duty to preserve the evidence. The appellate court, however, noted that Louisiana courts have not clearly enunciated rules for determining under what circumstances a person will be liable for the destruction of evidence and that the Louisiana Supreme Court has not spoken on the issue. Regardless, the court held that determining the retail business owner’s intent or motivation for the selective preservation of surveillance footage was inappropriate for summary judgment procedure. 

In reviewing the facts, however, the court noted that the business owner was a sophisticated defendant with insurance to cover such accidents and access to attorneys, as well as an assumed awareness of the legal elements required to support a slip-and-fall claim and the statute of limitations for bringing such claims. The appellate court also noted that the store owner’s actions and timing in viewing and editing the video tape immediately after the accident were suspicious. Of particular interest: the store owner used a surveillance system that kept video for two weeks and then automatically re-used the tape, unless specifically directed not to do so; the store owner had exclusive custody and control over the video; the store owner directed an employee to review the tape immediately after the accident; and, the employee deleted the footage from before the accident and that would have shown whether the store owner had knowledge or constructive knowledge of the wet floor, while keeping accident and post-accident footage. Thus, the appellate court held that there were genuine issues of material fact that precluded a finding that the store owner’s actions were unintentional or made in good faith. Accordingly, the appellate court reversed and remanded back to the trial court for further proceedings.

Take-Away: This case demonstrates that a retail property owner in Louisiana may have an affirmative duty to preserve evidence related to an accident that may expose the owner to premises liability. This case suggests that liability for interference with a civil action may attach if the owner knew or should have known that a claim for injuries may be made and the property owner fails to preserve all relevant evidence.

City's Liability for Water Leak Affirmed but Plaintiff Hit With Comparative Fault

The importance of property owners acting promptly to address potentially dangerous conditions is demonstrated in a recent case from Jefferson Parish. In Nunnery v. City of Kenner (pdf), the plaintiff was working as a volunteer assistant volleyball coach at a local gym. Before practice began she noticed water collecting on the ground around the water fountain and brought it to the attention of the Gym Supervisor. Approximately an hour later, while dismantling the volleyball equipment, the plaintiff slipped and fell in the same general area where she had previously reported the standing water. According to the plaintiff, the water had spread from the fountain area from the time she originally reported it. After trial, Judge Donald Rowan found in favor of the plaintiff and awarded her $80,000 in general damages and over $16,000 in special damages. Finding that the standing water created a “dangerous condition” which had been reported to the city’s employee, the Louisiana Fifth Circuit Court of Appeal affirmed the finding of liability on the part of the City. The court, however, also found that the plaintiff “should have taken more care for her safety” given that she was aware of the condition and allocated 20% comparative fault to her.  

Take-Away: Even with the limitation of liability afforded under Louisiana Revised Statute 9:2800 (pdf), a public entity can still be held responsible where it clearly had actual or constructive notice of the condition causing the accident. Here, the fact that the water leak had been reported but not corrected in a timely manner was enough to impose liability although the appellate court was probably also correct in allocating some liability to the plaintiff given that she had been the one to report the condition in the first place.