Plaintiff, Elouise Burns, filed a personal injury lawsuit due to a slip and fall at a Winn-Dixie grocery store. Burns alleged that her fall was due to an accumulation of water or other substance on the floor in the ice cream aisle. Winn-Dixie filed a summary judgment motion arguing that the plaintiff failed to meet the requisite burden of proof governing negligence claims against merchants, which is set forth in La. R.S. 9:2800.6 (pdf). In particular, Winn-Dixie argued that plaintiff failed to show that its employees created or had actual or constructive notice of the alleged unreasonably dangerous condition, a necessary element of her claim.
In support of its motion, Winn-Dixie used the plaintiff’s deposition testimony to demonstrate that she did not see the liquid on the floor prior to her fall and that she had no evidence of how long the liquid had been on the floor. In opposition, the plaintiff attempted to demonstrate constructive notice of the liquid by noting that the location of her slip and fall was in close proximity to the store’s cash registers and the view from that area was clear and unobstructed. In support of her constructive notice argument, plaintiff relied upon the affidavit of a law clerk from her attorney’s firm, who visited the store almost two weeks after Winn-Dixie filed the Motion for Summary Judgment. Also, at the hearing on the motion the plaintiff introduced her responses to Winn-Dixie’s written discovery, as well as Winn-Dixie’s responses to her written discovery in an effort to show there were no “wet floor” signs in the area where she fell. After considering this evidence, the trial court granted summary judgment in favor of Winn-Dixie and dismissed the plaintiff’s claims. The plaintiff then filed a Motion for New Trial arguing the following: (1) the grant of summary judgment was contrary to the law and evidence; (2) plaintiff had newly discovered evidence to defeat summary judgment; and (3) granting of a new trial was within the trial court’s discretion and in the interest of justice. The trial court denied the plaintiff’s Motion for New Trial and plaintiff appealed.
La. R.S. 9:2800.6 governs merchant liability for slip and fall cases and requires that a claimant has the burden of proving, in addition to all other elements of his or her cause of action, the following elements: 1) that the condition presented an unreasonable risk of harm to the claimant and the risk of harm was reasonably foreseeable; 2) that the merchant either created or had actual or constructive notice of the condition causing the damage, prior to the occurrence; and 3) that the merchant failed to exercise reasonable care. Constructive notice is defined as the condition must have existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. Although there is no specific time period, “positive evidence” is required to demonstrate constructive notice to meet this burden.
The appellate court was critical of the evidence plaintiff presented in her opposition to Winn-Dixie’s motion. First, the court noted that the law clerk’s affidavit offered no proof that the clear liquid on the floor—the alleged cause of the plaintiff’s fall—had been there for a period of time sufficient to create the requisite constructive notice. Next, plaintiff’s “close proximity” argument was insufficient to show constructive notice as the statute specifically provides that an employee’s presence alone does not suffice as constructive notice. Further, the plaintiff’s “newly discovered evidence” argument was discredited. This evidence consisted of an undated affidavit of an alleged witness who claimed she saw the plaintiff slip in the aisle, that there were several employees in that vicinity, that one of the employees commented about the lack of signage, and that the freezer had been leaking for quite a while. The same witness—the plaintiff’s former daughter-in-law—had given a written statement six months after the accident that failed to mention any of these “facts.” The appellate court concluded that the plaintiff could have obtained the affidavit prior to the summary judgment hearing, and further concluded that the trial court’s refusal to consider these unsworn and unverified written statements, which were not of sufficient evidentiary quality to be considered, was correct. In sum, the plaintiff failed to come forward with sufficient evidence in support of her claim that the store owner had actual or constructive notice of the alleged hazardous condition.
Take Away: In slip and fall cases where a claimant is attempting to establish that a store owner had constructive knowledge of a hazardous condition, the claimant must provide positive evidence to show the period of time that that the hazardous condition existed and that this time period was sufficient to place the merchant on notice of the condition.
This article was co-authored by Darleene Peters, Counsel at Irwin Fritchie Urquhart & Moore LLC.