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.

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.

Galloping into Federal Court: Western District Chief Judge Adopts Test For Federal Jurisdiction over Louisiana General Premise Liability Claims

On April 4, 2009, Billy Ray Longino came across a low-hanging power line while horseback riding in Camp Livingston. As Mr. Longino turned to inform the other riders of the power line, his horse lost control, launched towards the power line, and electrocuted itself and Mr. Longino. Two weeks prior, firefighters and federal employees responded to a grass fire caused by the same low-hanging power line, but failed to place any safeguards near the wire after extinguishing the fire.

Mr. Longino’s survivors filed suit in the Western District Court of Louisiana alleging that the United States violated the Federal Tort Claims Act (“FTCA”), because the government failed to take reasonable and necessary precautions to prevent harm from the power line. Under the FTCA, the federal government may be liable for an act or omission of its employees acting within the course and scope of their employment, if a private person would be liable under state law for that same act or omission.

In response, the United States moved to dismiss for a lack of subject matter jurisdiction under the FTCA. In the alternative, the United States moved for summary judgment, alleging an absence of evidence supporting Plaintiffs’ claim.

In considering whether it had jurisdiction to hear a claim for Louisiana general premises liability under the FTCA, the court acknowledged that the United States Court of Appeal for the Fifth Circuit has not ruled on the exact issue and that there is a split among divisional courts within its own district. The court, after reviewing other district court rulings within the Western District, adopted the “Janice test” enunciated in the case Janice v. United States. Under the Janice test, jurisdiction for general premises liability claims brought under the FTCA will exist if claimant alleges that an unreasonable risk or unreasonably dangerous condition was either: (1) caused by the negligent or wrongful act or omission of a federal employee, or (2) that the unreasonably dangerous condition was known to a government employee, yet the employee failed to act by warning of or correcting the condition. Because Plaintiff alleged that a government employee had knowledge of the low-hanging power line but failed to act, the court held that it had jurisdiction to hear the general premises liability claim under the FTCA.

Turning to the government’s motion for summary judgment, the court found a genuine issue of material fact as to each argument and denied the motion. Initially, the government argued that it was not liable under the FTCA because of the statute’s discretionary function exception, which insulates the government from liability if the action challenged involves the permissible exercise of policy judgment. The exception does not apply, however, when a federal statute, regulation, or formal policy prescribes a course of action for an employee to follow. Looking to the Incidental Response Pocket Guide published by the National Wildfire Coordinating Group, the court found a genuine factual dispute over the existence of a policy requiring governmental action for low-hanging power lines.

The federal government also argued that it was immune from liability under La. R.S. 9:2795 (pdf), which grants limited immunity from liability to the owner of land that is dedicated for recreational use. To determine whether this immunity existed, the court recognized that it had to consider whether: (1) the land upon which the injury occurred was undeveloped, nonresidential, and rural or semi-rural; (2) the injury itself was the result of recreation that could be pursued in the “true outdoors”; and (3) the injury-causing instrumentality was of the type normally encountered in the “true outdoors.” The court, however, found a genuine factual dispute as to whether a power line is normally encountered in the “true outdoors.”

Additionally, the federal government argued that it did not have a duty to warn or protect against Mr. Longino’s injury, because the low-hanging power line was an “open and obvious” danger. The court, however, found a genuine issue of material fact as to whether the danger from the power line was, in fact, open and obvious because, until Mr. Longino came in contact with the line, there was no way to know whether it was energized.

Finally, the court found a genuine issue of material fact as to whether the low-hanging line was in the care, custody and control of the United States or of CLECO, the power provider and lessee of the land.

Take-Away: Whether Louisiana federal courts have jurisdiction to hear general premises liability claims under the Federal Tort Claims Act or whether jurisdiction rests on the factual allegations of negligence of a federal employee remains unclear. 

This article was co-authored by Gretchen Fritchie, a 2013 summer associate at Irwin Fritchie Urquhart & Moore LLC. 

Issues Of Fact As To Whether Placement of Highway Billboard Is An Unreasonably Dangerous Condition for Motorist Saves Claims Of Paralyzed Mother Of Three Minor Children.

The case Falcon v. Louisiana Dept. of Transportation arises out of a motor vehicle accident involving a mother and her three children. On the day of the accident the mother was driving her vehicle with her three minor children as passengers. When she approached a T-shaped intersection, she allegedly ran a stop sign and then after attempting to turn left her vehicle was broadsided by a truck traveling on the intersecting highway. Although her children only sustained minor injuries, she suffered a severe closed head injury, which ultimately required that she be legally interdicted under the curatorship of her father “Plaintiff”. 

Plaintiff filed a personal injury action on behalf of his daughter and her three children alleging that defendants’ placement of a large billboard at an intersection of two roads constituted an unreasonably dangerous condition to motorists. Named as defendants were the State of Louisiana, through the Department of Transportation and Development (“DOTD”), the owner of the land on which sign was erected and its insurer, as well as the owners of the sign and their insurers. The billboard in question measured sixteen (16) feet in width by approximately eight (8) feet in height and was alleged to have extended two feet into the State's right-of-way along La. Hwy. 1 in violation of La. R.S. 48:461.2. This statute provides, in part:

No outdoor advertising shall be erected or maintained within six hundred sixty feet of the nearest edge of the right of way and visible from the main traveled way of the interstate or primary highways in this state....

The defendants filed a motion for summary judgment asserting that the entire lawsuit should be dismissed because the placement of the billboard did not present an unreasonably dangerous condition to motorists and because the mother failed to act as a reasonable motorist. The trial court granted summary judgment as to the landowner, its insurer and the DOTD, but denied the motion as to owners of the sign and their insurers. With respect to those entities, the court found that there existed a genuine issue of material fact as to whether the billboard contributed to the accident. Plaintiff appealed the trial court’s dismissal of the landowner, its insurer and the DOTD on the basis that it was not appropriate to rule as a matter of law that an uncontested sight obstruction did not constitute an unreasonably dangerous condition. The only issues before the appellate court were whether there were genuine issues of material fact (1) as to whether the billboard presented an unreasonably dangerous condition and (2) as to whether the mother failed to act as a reasonably prudent motorist under the circumstances.

The appellate court first considered the issue of whether the billboard presented an unreasonably dangerous condition. The court noted that it was undisputed that at a certain point along the highway, the placement of the billboard obstructed the view of motorists. Thus, the only issue was whether the obstruction was sufficient to constitute an unreasonably dangerous condition. Finding that this inquiry was inherently a factual determination, the appellate court reversed the finding of the trial court and held that there were genuine issues of fact as to whether the billboard obscured the view of the mother thereby creating an unreasonable risk of harm.

The court next addressed the issue of whether the mother failed to act as a reasonably prudent motorist under the circumstances. Defendants argued that to defeat summary judgment Plaintiff had to overcome two separate presumptions: (1) that a left-turning motorist involved in a collision that occurs across the center line is at fault in causing the accident; and (2) that a motorist who runs a stop sign resulting in a collision is similarly at fault in causing the accident. Plaintiffs countered that there were factual disputes with respect to each contention put forth by defendants. First, the other driver in the accident testified that he did not know which direction the mother intended to travel and the investigating officer refused to state that she was definitively attempting to execute a left-hand turn. Second, one of the mother's daughters, who was a passenger in vehicle, testified that just prior to the accident her mother stopped at the stop sign. Lastly, Plaintiffs contended that it was the placement of the billboard that caused the accident – not the mother’s alleged failure to act in a reasonably prudent manner. The appellate court found that these issues of fact were sufficient to defeat defendants’ summary judgment motion and reversed the ruling of the trial court.

Take Away: Courts are reluctant to uphold the dismissal of a case via summary judgment when there are arguable issues of material fact as to the events and circumstances surrounding an accident, especially where a plaintiff has sustained catastrophic injuries.

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

Are Cigarette Butts Bad For Your Health?

Although, it is well known that cigarette smoke can be harmful to a person’s health, cigarette butts can also be dangerous.  The question decided by the Louisiana Second Circuit Court of Appeal in Adams v. Louisiana State University Health Sciences Center Shreveport (“LSUHSC”), was whether, as a matter of law, LSUHSC, a public facility, is exempt from responsibility for the damages Sherry Adams sustained when she fell on a wet cigarette butt located on a handicap entrance ramp to the facility. 

On August 9, 2005, Ms. Adams, an off-duty LSUHC employee, slipped and fell when she was going to visit her uncle who was a patient in the hospital. As a result of the fall, Ms. Adams sustained serious injuries to her right hand, fingers, and right ankle. She sued LSUHSC alleging that, at the time of the incident, the ramp was unreasonably dangerous and defective because of the collection of cigarette butts on the ramp.  She further alleged that LSUHSC knew or should have known of the unreasonably dangerous condition or defect associated with the collection of cigarette butts and that the condition could have been prevented if the hospital had exercised reasonable care.

After sufficient discovery, LSUHSC filed a motion for summary judgment, which was granted. The trial court found that: (1) Ms. Adams claims arose under La. C. C. art. 2317 (pdf), which imparts liability upon owners for damages caused by their defective things, and La. R.S. 9:2800 (pdf), Louisiana’s statute limiting liability for public entities arising from public property; (2) Ms. Adams could not meet her burden of proof against LSUHSC; and, (3) the accumulation of cigarette butts did not constituted a defective condition or an unreasonably dangerous condition as contemplated by law. 

On appeal, the Second Circuit reversed and remanded the case to the trial court, holding that the trial court had incorrectly applied Louisiana law regarding a defective condition in property and that Ms. Adams’ claims against LSUHSC were correctly asserted under La.C.C. art. 2315 (pdf), Louisiana’s general tort law. The Second Circuit relied upon its own prior ruling in Holden v. Louisiana State University Medical Center-Shreveport in which it held that La. C.C. art. 2317  and La.R.S. 9:2800 do not apply when a person slips and falls on a foreign substance located on a premises. The court explained that there is a difference between “a defect in the premises” and “a defect on the premises.” Therefore, the court concluded that “the temporary presence of a foreign substance is not, in and of itself, a defect for purposes of strict liability under La. C.C. 2317” and, by extension, La. R.S. 9:2800. Rather, in such cases, the court held that negligence is measured by La. C.C. art. 2315. 

The court also noted that a hospital owes a duty to its visitors to exercise reasonable care to keep its premises in a safe condition commensurate with the particular substance involved but that the standard of care for a hospital is lower than that for a merchant. The Second Circuit held that, because the trial court applied the incorrect law, the trial court failed to consider the relationship between the risk of someone slipping and falling on cigarette butts located on the handicap ramp and the reasonableness of the measures taken by the hospital to eliminate that risk. 

In addition, after conducting a complete review of the trial court summary judgment record, the Court concluded that Ms. Adams had identified material issues of fact that precluded summary judgment. Among the disputed facts was that: (1) LSUHSC had some knowledge of the cigarette butts at the entrance where Ms. Adams fell; (2) someone was supposed to clean the entranceway where Ms. Adams fell; and, (3) the person who cleaned the entrance may not have done it regularly. Moreover, the Court held that the evidence in the record was enough to provide factual support that LSUHSC had actual or constructive notice of the cigarette butts on the ramp. The Court also held that it was a jury’s function, not the court’s, to decide if LSUHSC’s policy for keeping the entrance ramp clean was reasonable. The Court, ultimately, held that LSUHSC failed to carry its initial burden of proving there was no genuine issue of material fact and that it was entitled to judgment as a matter of law.

Take-Away: The Adams case demonstrates that a state run hospital can not rely upon La. R.S. 9:2800 to exempt it from its general duties to keep its premises safe. This case also demonstrates that a hospital cannot prevail on a summary judgment if the plaintiff establishes that the hospital may have had some knowledge of a potentially defective condition or did not have a policy to reasonably rectify a known defective condition.