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.