A Video is Worth a Thousand Words--Video Footage Defeats Plaintiff's Efforts to Avoid Summary Dismissal of Her Lawsuit against Wal-Mart

Hubert v. Wal-Mart Louisiana, LLC, involved a slip-and-fall at a Wal-Mart store.  Wal-Mart surveillance camera footage captured a male shopper wearing a white baseball cap pushing a grocery cart down the dairy aisle.  It showed the shopper travel away from the camera and move further down the aisle before deciding to turn his cart around and retrace his steps at 7:30:42 p.m.  It then showed him push his cart a short distance and two seconds later stop the cart when he noticed something dripping from his cart onto his leg and the floor.  Next, the shopper immediately pushed his cart out of the aisle and proceeded without his cart to find a Wal-Mart employee (7:30:51-52 p.m.).  Seconds later Jessica Hubert fell in the exact location where the male shopper appeared to have noticed the spilled item—salsa from a broken jar—47 seconds earlier.

Hubert filed suit in Louisiana state court against Wal-Mart seeking damages for injuries she allegedly sustained when she fell. Wal-Mart removed the case to federal court on diversity jurisdiction grounds, following which it filed a motion for summary judgment.  Hubert opposed the motion.

The federal court judge, Judge Shelly Dick of the Middle District of Louisiana, first noted that Hubert’s claims were controlled exclusively by Louisiana’s “Merchant Liability Statute,” La. R.S. 9:2800.6 (pdf).  The issue therefore was whether Hubert had proven that Wal-Mart had constructive notice of the spill as required by La. R.S. 9:2800.6(B)(2) & (C)(1), so as to avoid summary dismissal of her claims.  Constructive notice is defined under the law to include a mandatory temporal element.  To prove constructive notice, Hubert had to establish through positive evidence that the condition existed for some period of time sufficient to place Wal-Mart on notice of its existence.

Hubert made a number of arguments in an effort to prove constructive notice.  She argued that the presence of a Wal-Mart employee in the immediate area of the spill prior to the fall established constructive notice and that a grocery cart’s wheel marks through the spill implicitly established that the salsa had been on the ground a sufficient period before the fall. Hubert also relied on a U.S. Fifth Circuit decision that she claimed supported her position because there the court recognized that the temporal showing in a slip-and-fall case could be based upon a reasonable inference drawn from circumstantial evidence, such as the size and nature of the spill. 

Judge Dick rejected each of Hubert’s arguments and granted Wal-Mart’s summary judgment motion.  In reaching its decision, the Court emphasized that Louisiana’s Merchant Liability Statute expressly provides that the mere presence of a store employee in the vicinity where the condition exists does not, by itself, constitute constructive notice.  And the evidence presented by Hubert did not otherwise support a finding of constructive notice.  Rather, surveillance video showed that the employee was not actually in close proximity to the spill and the spill only existed for around fifty seconds prior to the fall.  Hubert also admitted that the store employee had his back turned to the spill and was preoccupied with performing work tasks shortly before the fall.  Regarding the grocery cart tracks through the salsa, the Court noted that the video of the male shopper showed that he created the spill and then made the marks with his cart, which confirmed that the salsa was only on the ground for less than a minute prior to Hubert’s fall.  This evidence overcame any possible inference that the temporal element of the statute was satisfied.

Take-Away:  Strong video surveillance evidence documenting the exact timing of a spill and a patron’s subsequent slip and fall in the area of the spill can overcome much softer evidence or argument of a plaintiff such as the presence of a store employee in the “immediate vicinity” of the spill or any inferences drawn from the presence of buggy track marks through the spilled area.

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

 

 

Caught on Candid Camera: Surveillance Footage Used by Defendant to Prove Fault of Plaintiff

Sheneatha Stevens was shopping at Market Basket grocery store in Lake Charles, Louisiana, when she fell on rice on the floor at the end of a refrigerator aisle. Ms. Stevens subsequently sued Market Basket for injuries she allegedly sustained as a result of the fall. In response, Market Basket denied liability and alleged fraud on the part of Ms. Stevens. After a bench trial in the 14th Judicial District Court, the judge rejected Market Basket’s fraud allegations and found in favor of Ms. Stevens, awarding her $5,000 in general damages, as well as medical special damages. Market Basket appealed to the Louisiana Third Circuit Court of Appeal in Stevens v. Market Basket Stores, Inc.

 

On appeal, the Third Circuit framed the issue as whether the trial court erred in failing to find fraud on the part of Ms. Stevens, as well as whether the court erred in allocating 100% of the fault to Market Basket. Because both of these issues stemmed from factual determinations by the trial court, the Third Circuit reviewed the manifest error standard of review, pursuant to which an appellate court cannot reverse a trial court’s finding of fact unless it is “clearly wrong.”

 

On the first assignment of error, Market Basket argued that a surveillance video of the incident—which was introduced into evidence at the bench trial—showed that Ms. Stevens intentionally fell on the rice after initially slipping on the rice without falling. It also argued that its position on this issue was supported by Ms. Stevens’ trial testimony regarding more than 20 personal injury claims filed by her in the 10 years prior to the Market Basket incident. The Third Circuit analyzed the legal definition of fraud, which, under Louisiana Civil Code article 1953 (pdf), requires a showing that a material misrepresentation has been made by one party designed to deceive another to obtain an unjust advantage or to cause loss or inconvenience by the other. The Third Circuit ultimately held that the record reasonably supported the trial judge’s finding that Ms. Stevens “legitimately fell” on the rice and that she therefore was not fraudulent in bringing her claim.

 

With regard to the second assignment of error, Market Basket asserted that the trial court erred in its finding that Market Basket was 100% liable, which was based on the trial judge’s determination that a Market Basket employee who saw the rice less than one minute prior to Ms. Stevens’ fall should have warned Ms. Stevens. Market Basket argued, however, that the surveillance video clearly established that Ms. Stevens had actual knowledge of the rice on the floor prior to her fall. The Third Circuit ultimately agreed with Market Basket on this assignment of error, finding that the surveillance video conclusively established that Ms. Stevens slipped, but did not fall, on the rice twenty-two seconds prior to her falling on the rice. Thus, the Third Circuit reversed the trial court’s finding on liability and reallocated 60% of the fault to Ms. Stevens, with the remaining 40% allocated to Market Basket.

 

Take-Away: Although the preservation of surveillance footage is necessary to avoid potential spoliation sanctions, the same footage can be used to support a property owner’s argument that the defendant did not breach the standard of care required by the law and, in some cases, can even be used to prove a plaintiff’s fault in a premises liability action.

 

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

 

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.