Under Louisiana law, store owners are required to exercise reasonable care to keep their stores free from conditions that could be hazardous to customers and visitors. When a customer is injured while browsing the aisles, the merchant’s efforts to maintain a safe premises are often given great scrutiny. To win a negligence suit against a merchant for an injury that was due to an unsafe condition of the premises, the customer is required to prove the following three elements: (1) the condition presented an unreasonable and foreseeable risk of harm to the customer; (2) the merchant either created or had notice of the unsafe condition; and (3) the merchant failed to exercise reasonable care to remedy the condition.
On the element of notice, the customer/plaintiff has two options. She can show “actual notice,” which requires her to prove that the merchant had specific knowledge of the dangerous condition (usually occurring when the condition had been previously reported to a store employee). Alternatively, the plaintiff can rely on “constructive notice” if she can show that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care (normally proven by showing that the store failed to regularly clean/go through the store looking for problems).
The analysis of the constructive notice issue was of central importance in the case of Gregory v. Brookshire Grocery Co., No. 45,070 (Ct. of App. La., 2d Cir., 2010). On October 21, 2003, Lena Gregory entered the Brookshire Grocery Store in Farmerville. Just prior to her arrival, a young girl had become ill and vomited in several places around the store as she attempted to find the restroom. Gregory noticed the vomit on the floor near the entrance to the store and carefully made her way around it. Approximately 15 minutes later, as Brookshire employees cleaned up in other areas of the store, Gregory slipped and fell on a spot of a “clear substance about the size of a baseball.” It was unknown what the substance was, whether it was related to the girl’s sickness, how it got on the floor, or how long it had been there.
At trial, Gregory argued that the store had constructive notice of the spot of clear substance on which she slipped. She complained that Brookshire was aware of a known danger (vomit/liquid in several areas) and took no steps to warn customers of the hazard. The court, however, disagreed with Gregory’s theory of constructive notice. Noting the store employees’ efforts in immediately addressing the numerous soiled areas created by the sick child, the court concluded that Brookshire had an effective system for cleaning spills. Because Gregory could not prove what the clear substance was or how it got on the floor, she was unable to “establish, even roughly, how long the substance had been on the floor.” Accordingly, the court held that Gregory did not meet her burden or proof with respect to the essential element of notice, and her claim against the store was dismissed.
The court’s decision in the Gregory case demonstrates the substantial burden facing an injured customer in a negligence case against a store owner. The failure to establish just one of the essential elements means that the customer, like Lena Gregory, will not prevail.
If you have been injured due to unsafe conditions at a store or other place of business, call the Berniard Law Firm toll-free at 504-521-6000 to speak with an attorney who can help.