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:
- The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;
- The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence;
- 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.