Louisiana Premises Liability Blog : Louisiana Premises Liability Lawyer & Attorney : Irwin Fritchie Urquhart & Moore Law Firm : LA Slip & Fall, Property Security : New Orleans, Baton Rouge

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.

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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.

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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.           

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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.

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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.

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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.

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