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.