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.