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. 

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.

Just the Facts Ma'am

Plaintiff, a former contract employee at Citgo Petroleum Corporation, claimed that he was injured as a result of his exposure to high levels of toxic materials and irritants during his employment as a sandblaster/painter for approximately twenty years. He filed suit against Citgo alleging that the company failed to warn of dangers associated with his work and failed to provide a safe work environment. In turn, Citgo moved to dismiss Plaintiff’s claims in Roach v. Air Liquide America.

The court, in analyzing Citgo’s motion, noted that the standard under Federal Rule of Civil Procedure 12(b)(6) is that dismissal is warranted when the Complaint “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” In determining whether this standard is met, the Complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” And, under Louisiana Civil Code article 2317.1 (pdf), an owner or custodian of a thing is only liable if the thing was under the defendant’s custody, contained a defect that presented an unreasonable risk of harm, the defect caused the damages, the defendant knew or should have known of the harm, and the damage could have been prevented by the exercise of reasonable care.

In support of its motion, Citgo highlighted that plaintiff simply failed to allege any facts in support of his claims that Citgo failed to provide necessary protection, failed to warn of the risks associated with silica exposure, and failed to provide proper ventilation. Moreover, plaintiff did not provide facts regarding his claimed exposure to hazardous levels of silica, the frequency with which he was exposed, how Citgo knew of the alleged dangers, what Citgo could have done to prevent such alleged dangers, or any other circumstantial details.

The court ultimately agreed that the plaintiff failed to allege sufficient facts to support his claims. However, the court gave the plaintiff 30 days to amend his Complaint to allege sufficient facts, and if he failed to do so, the suit would be dismissed with prejudice.

Take-Away: Although a plaintiff often will be given an opportunity to amend a poorly pled Complaint, a defendant–employer should nonetheless seek dismissal of a plaintiff–employee’s premises liability suit where the Complaint is woefully inadequate. This action will force the plaintiff to either properly plead his case, or if he is unable to do so, abandon the lawsuit.

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

Give Them One and One-Half to Three Inches and They'll Take a Mile

Plaintiff, Paul Broussard (“Broussard”), a UPS delivery driver, sustained a serious back injury while maneuvering a loaded dolly into one of the misaligned elevators in the Wooddale Tower, a twelve-story, State-owned office building located in Baton Rouge. 

Broussard filed suit against the State alleging that the State was negligent in failing to properly maintain and adequately repair a defective thing within its custody and care, thereby creating an unreasonable risk of harm. The jury returned a verdict in favor of Broussard, specifically finding 1) the offset between the elevator and lobby floors created an unreasonable risk of harm, 2) the State had a reasonable opportunity to remedy the defect but failed to do so, and 3) the defect was the proximate cause of Broussard’s injuries. The jury apportioned 38% fault to Broussard and the remaining 62% to the State and awarded Broussard $1,589,890.23 in damages. Once Broussard’s damages were reduced in proportion to his assigned percentage of fault, the trial court rendered a judgment in the amount of $985,732.56.

The State appealed, Broussard v. State ex. rel. Office of State Bldgs. The Court of Appeal reversed, finding that the jury’s determination that the offset created an unreasonable risk of harm was manifestly erroneous. Applying the four-prong, risk-utility balancing test articulated by the Louisiana Supreme Court in Pryor v. Iberia Parish School Board, the Court of Appeal found that the elevator’s social utility outweighed the risk created by its defective, yet readily apparent condition. First, the towers elevators serve an extremely useful, maybe even indispensible, societal function. Second, the defect was open and obvious, thus not presenting a serious risk of harm; further Broussard admitted he was probably aware of the offset when he pulled the dolly into the elevator. Third, Broussard could have avoided injury by either dividing the boxes of paper into multiple, lighter loads or waiting for another elevator. Lastly, there was no record of the elevator’s defective condition causing any injuries in the past. The Court of Appeal found there was no reasonable basis to support the jury’s verdict, concluding the jury was manifestly erroneous in finding an unreasonable risk of harm.

In a per curiam opinion, the Louisiana Supreme Court reversed the Court of Appeal, finding the jury’s unreasonable risk of harm determination not manifestly erroneous, that the record contained a reasonable factual basis to support the jury’s finding that a one and a half to three inch offset between the floor of the elevator and the floor of the Tower’s lobby presented an unreasonable risk of harm. The Supreme Court further found a reasonable factual basis existed to support a finding that the elevator’s defective condition was not an open and obvious hazard, as the defect was not readily apparent to all who encountered it. The Supreme Court held that the State, therefore, breached its duty of care by failing to remedy the defect or warn of its existence until the defect could be remedied. Thus, the judgment of the trial court was reinstated rendered in conformity with the jury’s verdict.

Take-Away: While a defendant only has a duty to protect against unreasonable risks that are not obvious or apparent, the fact finder, employing a risk-utility balancing test, determines which risks are unreasonable and whether those risks pose an open and obvious hazard. Thus, the fact finder determines whether a defendant has breached a duty to keep its property in a reasonably safe condition by failing to discover, prevent or warn of a defect that presents an unreasonable risk of harm.

This article was co-authored by Edie Cagnolatti, counsel with 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.

Swiveled Out Of Court--Just Because Chair Has Some Swivel to It, Doesn't Mean it's Defective

Barry Smith (“Smith”), a patron of Harrah’s casino in New Orleans, attempted to sit in a chair when it swiveled, which caused him to fall and injury his leg. Smith sued the casino on the grounds that it was grossly negligent in failing to warn patrons of the potential dangers presented by the swiveling chair. He further claimed that the casino was negligent for its failure to remove the chair prior to his accident.

After discovery was conducted, the casino moved for summary judgment on the ground that the swivel chair was not unreasonably dangerous. In support of its motion, the casino highlighted Smith’s admission that he was caught off guard when the chair swiveled and at the time he was operating under the assumption that all chairs in the casino’s slot machine area were in a fixed position. Under Louisiana law, a plaintiff, like Smith, has the burden of establishing that the chair presented an unreasonable risk of harm and that the risk of harm is reasonably foreseeable. See La.R.S. 9:2800.6(B)(1)(pdf). Because Smith failed to meet this burden, the trial court dismissed all of his claims. Smith subsequently appealed in Smith v. Casino New Orleans Casino .

On appeal, Smith asserted that the trial court made improper factual determinations that the chair was neither dangerous nor defective. He contended that the chair swiveled faster and further than other casino chairs he had sat on that night, which he claimed created a dangerous condition. He also argued that because the chair did not behave exactly like all of the other chairs in the casino, it was defective. The court dismissed these arguments as being conclusory, speculative, and insufficient to meet Smith’s burden of proof. And, the court found that Smith failed to offer any evidence that the swivel chair was defective or dangerous. Having failed to do so, Smith could not prove an essential element of his claim and on that basis the appellate court affirmed the trial court’s dismissal of Smith’s claims.

Take-Away: Mere conclusory or speculative allegations, without evidentiary support, are insufficient to meet a plaintiff’s burden of establishing that a condition at a property presents an unreasonable risk of harm.

Plaintiff's Claims Against DOTD Wash Right-A-Way

On July 28, 1986, Mr. Jerry Ramos and a friend went on a recreational excursion to an area known as Second Bridge that is located in the Big Creek area of Pollock, Louisiana. Second Bridge is a “swimming hole” in Big Creek that is situated near a right-of-way owned by the Louisiana Department of Transportation and Development (DOTD). After entering the creek, they quickly realized that the creek consisted of shallow, ankle-deep water along its edges and deeper, chest-deep water near its center. Subsequently, they discovered a rope swing hanging from a nearby tree and decided to use the rope to launch themselves into the water.

They swung from the rope several times and landed safely in the deeper water. However, on Mr. Ramos’s last jump, he was unable to maintain a firm grip on the rope and ultimately landed head first in the shallow water near the edge of the creek. As a result, Mr. Ramos suffered a spinal cord injury and was rendered a quadriplegic. Mr. Ramos filed suit against the DOTD alleging claims of negligence and strict liability due to the existence of the rope swing on the DOTD right-of-way. In response, the DOTD filed a Motion for Summary Judgment in which it admitted that it had both control of Second Bridge and constructive knowledge of the rope swing. Nevertheless, the DOTD argued that it owed no duty of care to protect Mr. Ramos from consequences resulting from his own failure to maintain a sufficient grasp on the rope, an argument with which the trial court agreed in dismissing the suit.

Mr. Ramos appealed and argued that Second Bridge presented an unreasonable risk of harm and that the DOTD owed him a duty to remedy, warn against, or block the rope swing from use. To address the unreasonable risk of harm issue, the appellate court employed a well-accepted risk-utility balancing test with factors including: (1) the utility of the thing; (2) the likelihood and magnitude of the harm, which includes the obviousness or apparentness of the condition; (3) the cost of preventing the harm; and, (4) the nature of the plaintiff’s activity, or whether the activity was inherently dangerous.

After considering these factors, the court determined that there was no unreasonable risk of harm at Second Bridge based on a totality of the circumstances. Importantly, the court explained that the “utility of Second Bridge and Big Creek as a whole” was the appropriate consideration as opposed to the utility of the rope swing specifically. As such, the court recognized, generally, that outdoor areas that are open to the public serve important social functions because recreational activities are vital to many communities. The court explained that public swimming areas are especially appreciated in Louisiana’s climate, with the public deriving a great benefit from public lakes, creeks, and rivers. As a result, the court concluded that the social utility of Second Bridge, as a whole, was considerable.

In considering the likelihood of harm, the court refused to consider evidence of an accident that occurred years before at Second Bridge that did not involve a rope swing and was not analogous to Mr. Ramos’s situation. Rather, based on Mr. Ramos’s testimony, the court concluded that the rope swing presented an open and obvious danger and that Mr. Ramos merely exercised poor judgment because he clearly knew the depth of the water and the dangers associated with swinging off of a rope above shallow water. Therefore, the likelihood of harm was low. The court also recognized that Mr. Ramos’s activity was “inherently dangerous” and, unfortunately, that the accident resulted because he was simply unable to maintain his grasp on the rope. Although the DOTD knew about the rope swing and could have removed it, the court held that the DOTD is not responsible for ensuring against every possible risk at its rights-of-way. As a result, the court determined that Second Bridge did not present an unreasonable risk of harm.

In fact, although the court recognized that the DOTD owes a “duty to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence,” it also recognized that the absence of an unreasonably dangerous condition implies the absence of a duty on the part of the DOTD. Therefore, the court ruled in favor of the DOTD by affirming the trial court judgment and dismissing Mr. Ramos’s suit.

Take-Away: Outdoor recreational areas are vital aspects of life in Louisiana and serve considerable social functions. Therefore, open and obvious dangers of outdoor recreational spaces will not automatically impute liability on the premises owner.

This article was co-authored by Christopher Ulfers, a summer associate 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.

Building Code Violations not enough to Sink City in Premises Liability Suit

George Handy, a then out-of-work diesel mechanic, visited the Second Harvest Food Bank in Jefferson Parish on February 14, 2005 to get some provisions. While attempting to leave the building housing the food bank, he struck his head on the bottom portion of a stairwell, allegedly sustaining injuries to his head and neck. The clearance beneath the stairwell was only 6 feet, which was in violation of the applicable building codes. Mr. Handy sued the City of Kenner, the alleged owner of the building, and others for his personal injuries and claimed liability based on negligence and/or strict liability. Following a judge trial in the 24th Judicial District Court for the Parish of Jefferson, Judge Cornelius E. Regan rendered a judgment in favor of the City and found that the stairwell was an open and obvious condition that did not present an unreasonable risk of harm. Mr. Handy appealed, arguing that the trial court erred in failing to find that the stairwell posed an unreasonable risk of harm.

The Louisiana Fifth Circuit Court of Appeal affirmed the trial court’s decision in Handy v. City of Kenner.  In reaching its decision, the court focused on whether the trial court erred in finding that the stairwell was not defective or an unreasonable risk of harm. It explained that resolution of the issue required a court to conduct a risk-utility balancing test and consider the following factors: (1) the utility of the thing; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs’ activities in terms of its social utility, or whether it is dangerous by nature. In addition, the Court recognized that there can be no liability where the injury results from a condition that should have been observed by an individual in the exercise of reasonable care, or that was as obvious to a visitor as it was to the landowner. 

The evidence supporting the plaintiff’s claims included a stipulation that the clearance of the stairwell was insufficient and in violation of the building codes in existence when the structure was built, and the plaintiff’s testimony that the stairwell “looked like an illusion” and that he thought he’d be able to pass underneath it without a problem. Conversely, several pieces of evidence supported the City’s position. First, a friend of the plaintiff testified that she had passed underneath the stairwell several times without problems and that nothing about the stairwell was hidden. The City’s assistant director of the public works department testified that he inspected the stairwell area following the accident and that there was nothing about it that was difficult to see. The supervisor for the food bank testified that the stairwell was not hidden or difficult to see, and she testified that she had not recorded any previous complaints about the stairwell. The record also contained several photographs of the exit area taken after the accident.     

Based on the evidence, the Court of Appeals found that the trial court was not clearly wrong in finding that the stairwell was open and obvious and did not present an unreasonable risk of harm. The Court was particularly swayed by the photographs of the stairwell and the testimony of the people who were familiar with the accident scene.

Take-Away: Violation of building codes does not, in and of itself, create liability on the part of a property owner. Rather, where the allegedly defective condition is open and obvious and does not create an unreasonable risk of harm, a property owner may be entitled to judgment in his favor even where the condition was in violation of the applicable building code.

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

Watch Your Step - Holding the Owner of a Sidewalk Liable for Damages from a Fall is No Easy Task

In September 2009, Delores Casborn was on her way to visit a patient at West Jefferson Medical Center when she caught her foot on an uneven section of the walkway next to the hospital’s parking garage and fell to the ground. As a result of the fall, Ms. Casborn claimed to have suffered injuries to her foot, neck, and shoulder. She subsequently sued West Jefferson Medical Center and the Road District for damages.

After conducting discovery, the Road District filed a motion for summary judgment on the grounds that the disparity in the height of the sidewalk stones did not create an unreasonable risk of harm, and even assuming the sidewalk was unreasonably dangerous there was no evidence of actual or constructive notice of the defect. In support of its motion, the Road District provided evidence that during the two months prior to the accident there were six requisitions for sidewalk repair in Jefferson Parish, but none referred to the particular area where Ms. Casborn fell. Further, records for the period of January 2009 and September 2009 showed that the Public Works Office had received no reports of defective conditions or resulting accidents in the particular area of sidewalk. Although some records indicated that Jefferson Parish had recently performed patching of holes near the hospital, these repairs were not in the area where Ms. Casborn fell. In opposition, Ms. Casborn provided photos showing a disparity in the height of the sidewalk stones of approximately two inches in the area where she fell. She further asserted that after her fall “some type of cement substance” had been placed there to eliminate the hazard.  Lastly, Ms. Casborn provided an affidavit of a hospital employee stating that she knew of the defect in the sidewalk. After considering the evidence offered by both parties, the trial court granted summary judgment and dismissed all of Ms. Casborn’s claims against the Road District. Ms. Casborn appealed the ruling to the Louisiana Fifth Circuit Court of Appeal.

The appellate court first noted that in order to hold a public entity liable for an alleged defect in the premises, a plaintiff must establish that: (1) the thing which caused the damage was in the defendant’s custody, (2) the thing had a condition which created an unreasonable risk of harm, (3) the defendant had actual or constructive knowledge of the defect, and (4) the defect was a cause in fact of the plaintiff’s injuries. The only two issues before the court were whether the sidewalk created an unreasonable risk of harm and whether the Road District had actual or constructive knowledge of the defect.

To determine whether a defect is unreasonably dangerous, courts weigh the gravity and risk of harm against the utility of the thing and cost and feasibility of repair. The vice or defect must create a dangerous condition that would reasonably be expected to cause injury to a prudent person exercising ordinary care under the circumstances. While there is no fixed rule, courts routinely have held that a minor deviation in sidewalk elevations do not present an unreasonable risk of harm. Applying the risk / utility analysis, the court of appeal found that the deviation in the sidewalk did not create an unreasonably dangerous condition.

The court next considered whether the Road District had actual or constructive knowledge of the defect under La. R.S. 9:2800 (pdf). Under this statute, the plaintiff has the burden of proving that the “public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.” The court of appeal concluded that the plaintiff failed to provide sufficient factual support to satisfy her burden of proof at trial on the essential element of notice and affirmed the trial court’s grant of summary judgment. 

Take-Away: Simply because a person is injured on an uneven sidewalk does not necessarily equal liability on the part of the owner of the premises. Courts generally do not consider minor deviations in sidewalk elevations as unreasonably dangerous. And, even assuming a defect is found to exist, the plaintiff still has the burden of proving that the public entity had actual or constructive notice of its existence.

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

One Too Many Mudslides? Daiquiris Patron's Knowledge of Steep Step Leading to Restroom Does Not Necessarily Bar Her Ability to Recover Against Daiquiri Shop

While driving through Metairie one evening, Lenai Boye and her husband stopped at a local Daiquiris & Creams. While Mr. Boye ordered a drink, Ms. Boye went to the ladies’ room. There was a step at the threshold of the restroom, which Ms. Boye successfully navigated when she entered the facility. However, when she exited the restroom, Ms. Boye missed the step and fell, injuring her chin, jaw, and neck, and breaking her wrist.

Ms. Boye filed suit against Daiquiris for damages – Boye v. Daiquiris & Creams No. 3., Inc. In response, Daiquiris sought dismissal of the case via summary judgment, arguing that Ms. Boye could not recover as a matter of law because she had actual knowledge of the alleged dangerous condition – the step leading to the restroom – prior to the incident. This knowledge, according to Daiquiris, precluded Ms. Boye from claiming that the step presented an unreasonable risk of harm.  Daiquiris also asserted that it had taken various safety measures to warn customers of the step, including posting “step up” and “step down” signs, putting lights in the area, and putting reflective tape on the steps. These facts were contested by Ms. Boye who presented contradictory testimony indicating that none of those measures was in effect at the time of her fall. After a hearing on the matter, the trial court granted summary judgment and dismissed Ms. Boye’s lawsuit. Ms. Boye appealed that decision.

On review, the court of appeals considered Ms. Boye’s claims pursuant to Louisiana Civil Code Articles 2317.1 and 2322.  Louisiana Civil Code article 2322 provides that a building owner may be liable for damage caused by a vice or defect in the building only if (1) he knew about the defect, (2) he could have prevented the damage by using reasonable care, and (3) he failed to exercise such care. The appellate court noted that a condition in the building will be considered a defect only if it poses an unreasonable risk of harm. When determining whether a complained of condition presents an unreasonable risk of harm, courts weigh a variety of factors, including: (1) the claims and interests of the parties; (2) the probability that the risk will occur; (3) the severity of the consequences; (4) the burden of adequate precautions; (5) the individual and societal rights and obligations and stake; and (6) the social utility involved.  Applying this analysis, the appellate court noted that the trial court only considered the issue of whether Ms. Boye’s safe entrance into the restroom precludes her claim and failed to consider other material facts relevant to a finding of unreasonable risk of harm. The appellate court then found that all of the facts and circumstances that bear upon liability, including lighting, signage, the utility and condition of the step at the time of the fall, were disputed and needed to be resolved at trial. Accordingly, the appellate court reversed the trial court’s grant of summary judgment and sent the case back to the trial court for further proceedings.

Take-away: The mere fact that a person injured on the premises was aware of an allegedly dangerous condition prior to the incident does not, in and of itself, preclude the person from recovering against the building owner. All of the facts and circumstances surrounding the incident must be considered in determining whether risks are unreasonable.

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

Watch Your Step! Uneven Pavement in Shopping Center

On her way into a grocery store to purchase pet food with her grandson, the plaintiff, Regina Llorence, allegedly tripped in a pothole in the store parking lot, causing her to fall and break her knee. As a result of the accident, Ms. Llorence filed a lawsuit - Llorence v. Broadmoor Shopping Center, Inc., against the shopping center and its insurer.

The shopping center and its insurer filed a motion for summary judgment asserting that Ms. Llorence could not meet her burden of proof at trial because she could not prove: (1) that the parking lot was in a dangerously defective condition or (2) that her fall was a result of that condition. The trial court granted summary judgment in favor of the defendants and dismissed Ms. Llorence’s claims. Ms. Llorence appealed, arguing that there was an issue of fact as to the shopping center’s negligence.

To succeed on her negligence claim against the shopping center, Ms. Llorence would have to prove that: (1) the shopping center either owned or had care, custody, or control of the parking lot; (2) the pothole was the cause-in-fact of the her injuries; and (3) the pothole presented an unreasonable risk of harm. The “defect” complained of by Ms. Llorence was the alleged pothole that existed in the parking lot. In determining whether a defect presents an unreasonable risk of harm, the gravity and risk of harm must be weighed against, among other things, the cost and feasibility of repair.

The appellate court first addressed the issue of whether the “pothole” presented an unreasonable risk of harm. The court noted that photographs from the area where Ms. Llorence fell did not reveal a pothole; rather, as the trial court described in its reasons for judgment, the area was “at best, slightly uneven.” The court referred to prior Louisiana Supreme Court jurisprudence, in particular, Reed v. Wal-Mart Stores, Inc., that indicated that a party does not have a duty to eliminate all variations in elevations along streets, sidewalks and parking lots.   Thus, the mere presence of an uneven parking lot surface is not, in and of itself, a defect. In addition, the shopping center had introduced evidence that the area in question was traversed daily by dozens of patrons and there had never been a claim, complaint or lawsuit related to any condition in the area. On the other hand, the only evidence Ms. Llorence offered in support of her position that the condition of the parking lot presented an unreasonable risk of harm was some photographs that showed an arguably uneven elevation in the parking lot. Based on the evidence presented, the court affirmed that the defect, if any, did not present an unreasonable risk of harm.

The appellate court next considered whether, even assuming that the alleged defect in the parking lot created an unreasonable risk of harm, could Ms. Llorence be able to establish at trial that the condition was the cause-in-fact of her injuries. In her deposition, Ms. Llorence repeatedly testified that she did not know why she fell. Her grandson also could not identify what in particular caused her to fall; he was only able to state that his grandmother was “walking and started to stumble.” In light of this evidence, the court held that Ms. Llorence would not be able to prove at trial that the uneven condition of the parking lot was the cause-in-fact of her injuries. For these reasons, the court affirmed the trial court’s grant of summary judgment.

Take-Away: An entity having custody over a street, sidewalk or parking lot does not have a duty to eliminate all variations in elevations existing along the countless cracks, seams, joints, and curbs. Rather, a party may only be held liable for those defects that present an unreasonable risk of harm and are the cause of a patron’s injuries. 

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

Three is Better than Two - Store's Placement of Third Mat in High Traffic Area was Reasonable

On a day when a hurricane was passing over the area, Dianne Milton went to the Hurry Back convenience store to purchase some items. The store typically placed a single 4x6 commercial grade rubber-backed mat on each side of the entrance. Because of the weather conditions, an additional mat, 3x10 in size, was placed next to the inside 4x6 mat, roughly perpendicular to the door. 

Ms. Milton entered the store without incident and stood in line for a few moments prior to reaching the cashier. After her purchase, Ms. Milton turned to her right and started to move toward the door when her right foot caught the edge of the 3x10 mat, causing her to fall to the ground. She then quickly got to her feet and left the store. The entire incident was captured on the store’s surveillance cameras. The video showed that there were no bumps or wrinkles in the involved mat. Ms. Milton originally alleged that the mat was buckled where she tripped on it. However, after viewing the video, she revised her claim to allege that her foot slipped under the floor mat. 

After a three day trial, the trial judge granted judgment in favor of the store owner and Ms. Milton appealed the decision. Ms. Milton’s lead witness at trial was Bobby Urban, who was accepted as an expert in the areas of mat construction and the intended use of various types of mats in ordinary circumstances. Mr. Urban testified that placing a mat so close to the checkout counter was hazardous because most people, after making their purchase, pivot and drag their feet toward the door. He added that if a mat was necessary, it should have been placed 3 or 4 feet away from the counter or flush with it. Mr. Urban did, however, agree that during a major rain event, he would place more mats in areas where water was being tracked in.

On appeal, the court in Milton v. E&M Oil Company & State Farm Fire & Casualty Co. considered whether the store owner was liable for Ms. Milton’s injuries under Louisiana’s Merchant Statute (pdf). Specifically, the appellate court addressed the issue of whether the presence of the 3x10 mat presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable. The court affirmed the district court’s finding that the placement of the mat did not constitute an unreasonable risk of harm, noting that there was nothing inherently and unreasonably dangerous about the mat. And, the decision to move the mat on the day of the accident to an area where patrons would walk in with wet feet and dripping clothes was rational, outweighed the risk of taking no action, and was an adequate precaution to protect both the store and its patrons. The court also affirmed the trial court’s finding that the risk was not reasonably foreseeable. In doing so, the court noted that despite the heavy foot traffic, nobody else stumbled or tripped while walking over the mat. Also, the plaintiff’s expert acknowledged that the grade of the 3x10 mat is commonly used in other stores and the surveillance video clearly shows that the 3x10 was free of wrinkles, buckles or bumps, was lying flat on the floor, and was not fraying or unraveling. Based on these facts, the court found that the probability that a patron would trip and fall on the mat was minimal at best.

Take-Away: The mere fact that an accident occurs does not elevate the condition of the premises or thing to an unreasonable vice or defect.           

For All the World to See: Open and Obvious Conditions Preclude Liability

Eighty-two year old Mildred Watts was a regular patron at The Country Place Restaurant in Minden, Louisiana. She often entered the restaurant by walking on two circular stones in a flower bed positioned in between the parking lot and the restaurant entrance. On October 1, 2006, she became the first person to trip on a metal strip bordering the flower bed.  When she fell she sustained serious injuries to her mouth and teeth.

Ms. Watts filed suit against the restaurant and its insurer, Scottsdale Insurance Company, arguing that the metal strip posed an unreasonable risk of harm and that defendants were liable for her injuries. The trial and appellate courts disagreed and found that the condition was not unreasonably dangerous because it was open and obvious. The courts found that the restaurant did not owe a duty to Ms. Watts due to the open and obvious nature of the strip.

Both courts considered that the metal strip was about four inches tall and clearly visible to the naked eye. The restaurant manager testified that no one had tripped over or complained of the metal strip in the nine years that he worked there. The manager further stated that the stones in the flower bed were decorative, not stepping stones, and patrons were not encouraged to use it to enter the restaurant. Ms. Watts even admitted that she saw the strip on her previous visits to the restaurant, but never tripped over it. Importantly, on the day of her accident, nothing obstructed her vision of the strip.

Both courts disagreed with Ms. Watts’ argument that the sole purpose of the metal strip was to trip pedestrians and that it was difficult to see because it was a dark brown/green color among dirt and plants. Rather, the strip clearly bordered the flower bed, and the area was not a designated walkway for patrons.  The courts found that the metal strip was open and obvious and did not present an unreasonable risk of harm. Accordingly, the restaurant owed no legal duty to Ms. Watts and her claims were dismissed.

Nevertheless, Ms. Watts was not completely without a remedy. Ms. Watts recovered $5,000.00 policy limits, plus interest, from Scottsdale Insurance Company under a no-fault medical payments provision of its policy, for her medical expenses incurred as a result of her injuries.

Take-Away: A property owner does not have a duty to warn about or remove conditions that are open and obvious and, thus, do not pose an unreasonable risk of harm.

This article was co-authored by Laura Beth Graham, a 2010 summer associate at Irwin Fritchie Urquhart & Moore LLC.

Slip And Fall Claim Defeated By Lack Of Evidence That Fall Caused Death

In November 1995, Winfret Bell was walking from one room to another in the apartment she rented from the Housing Authority of New Orleans (“HANO”) when her shoe got caught in a broken threshold between the rooms. The threshold was not flush with the floor and Ms. Bell fell forward, sustained severe facial injuries and died on the same day. Ms. Bell was alone at the time of her fall and was not discovered until later that day by her granddaughter. Prior to Ms. Bell’s fall, she and her daughters had filed complaints to HANO about the broken threshold, which apparently were not addressed by the time of Ms. Bell’s fall. 

Ms. Bell’s seven daughters filed a wrongful death and survival action against HANO, claiming negligence and strict liability. Following trial, the trial court found in favor of Ms. Bell’s daughters and awarded the sum of $50,000 to each of Ms. Bell’s daughters.   

HANO appealed the trial court’s decision to the Louisiana Fourth Circuit Court of Appeal, arguing that Ms. Bell’s daughters failed to prove that the defective threshold was the cause of Ms. Bell’s death. In order to prevail in their claims against HANO, Ms. Bell’s daughters had to show that: 1) the threshold was in the care, custody and control of HANO; 2) that the threshold presented an unreasonable risk of harm; 3) that HANO knew or should have known about the broken threshold; and 4) that the threshold was the cause-in-fact of Ms. Bell’s death. 

Reviewing the evidence, the Fourth Circuit agreed that the evidence presented at trial by Ms. Bell’s daughters was sufficient to prove that HANO had the care, custody and control of the threshold, and that the threshold presented an unreasonable risk of harm in that it was not flush with the floor, and that HANO knew or should have known about the threshold through the numerous complaints filed by Ms. Bell and her daughters. 

However, the Fourth Circuit concluded that the trial court erred in finding that the threshold was a cause of Ms. Bell’s death. The only evidence introduced at trial on the issue of causation was Ms. Bell’s death certificate. On the certificate, the coroner’s office listed Ms. Bell’s cause of death as “hypertensive cardiovascular disease” and classified the manner of death as “natural”. The death certificate contained no reference to a fall or any other injuries or complications that caused or contributed to the death. No evidence was introduced at trial that showed or claimed that the fall caused or contributed to Ms. Bell’s death. Because Ms. Bell’s daughters did not offer any evidence to controvert the coroner’s conclusion that Ms. Bell’s death was caused by hypertensive cardiovascular disease, the court reversed the decision of the trial court and found in favor of HANO. 

Take-Away: The plaintiff bears the burden of proof in a premises liability case and, although able to make a prima facie showing to get into court, causation may be defeated by death certificates and medical records establishing another medical cause for injury or death.

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

Jaywalking Can be Very Expensive - for the City of New Orleans

Diana Murphy was jaywalking across Decatur Street in New Orleans when she tripped over a mound of pushed up asphalt and fell, injuring her right knee and leg (a tibia plateau fracture), which required two surgeries and physical therapy. Mrs. Murphy and her husband filed suit against the City of New Orleans alleging strict liability and negligence in the matter Murphy v. City of New Orleans. The district court found the City 100% at fault and awarded damages in the amount of $999,173.99 broken down as follows: (1) past medical expenses, $314,302.66; (2) future medical expenses, $15,000.00, (3) past lost wages, $169,871.33, and (4) general damages, $500,000.00. The award would have been higher, but Louisiana law imposes a $500,000.00 statutory cap (pdf)  on general damages against the State and its political subdivisions.

The City appealed, in part, on the ground that plaintiffs failed to carry their burden of proof on each element required to establish negligence and strict liability against a public entity.  The Court of Appeal noted that in order to prevail on a negligence or strict liability claim against a public entity a plaintiff must prove that: (1) the City had custody or ownership of the defective thing; (2) the defect created the unreasonable risk of harm; (3) the City had actual or constructive notice of the defect and failed to take corrective action within a reasonable time; and (4) causation. LSA-R.S. 9:2800. A failure to prove any element will bar recovery. The City argued that the elevated pavement did not pose an unreasonable risk of harm to a pedestrian and the City did not have knowledge of the condition. More specifically, the City argued that the defect in the pavement was obvious and that Mrs. Murphy was not paying attention.

The Appellate Court rejected the City’s arguments that the pushed up asphalt did not create an unreasonable risk of harm because it was obviously visible to a pedestrian exercising reasonable care. It based its decision on the facts that: the asphalt rose several inches at its peak and was located away from the curb in the traveled portion of the street; Decatur is a major street in the French Quarter, which is a main attraction in Orleans Parish for tourists who tend to be pedestrians; and, Mrs. Murphy was a tourist who had no familiarity with the area. The Appellate Court was, apparently, unconcerned with the fact that Ms. Murphy was jaywalking at the time of the accident. 

With respect to the City’s knowledge of the defect, the Appellate Court found that the City failed to follow its own written policy that mandated annual visual inspections of all major streets for the six years prior to the accident. Thus, the Court held that the City had constructive knowledge of the defect.  Consequently, the Court affirmed the trial court’s finding that the defect created an unreasonable risk of harm.

Take-Away: A property owner that fails to follow its own property inspection protocol will be charged with knowledge of a defective condition that should have been discovered during inspection.