Articles Posted in Negligence

Grease is often used to make foods easy to remove from pans and baking sheets. It creates a slippery, smooth surface that allows most foods to slide right out of the pan. Unfortunately, when grease meets a wood floor, humans walking over can slide around as well. Sharon Tomlinson found this out the hard way as a waitress led her to a table in a Daisy Dukes restaurant in May of 2011. It is believed that airborne grease particles settled on the floor, causing Mrs. Tomlinson to fall and injure her knee when she stepped off of a commercial rug and onto the allegedly greasy floor.

Mrs. Tomlinson filed a lawsuit in 2012 against Daisy Dukes and their insurer, Landmark (“Defendants”), for the slip and fall accident. She also filed a spoliation claim alleging the restaurant failed to preserve relevant evidence, such as security camera footage. Denying liability, Daisy Dukes and Landmark moved for summary judgment on both claims, arguing that Mrs. Tomlinson could not produce evidence showing anything was on the floor that contributed to her accident. Louisiana state law puts the burden of proving three different factors, including this one, on the plaintiff (Mrs. Tomlinson). La. R.S. 9:2800.6. Thus, Defendants argued, there were no genuine issues of material fact, and they were entitled to summary judgment as a matter of law. The trial court agreed and found Mrs. Tomlinson did not meet her burden of proof. The trial court also granted summary judgment against Mrs. Tomlinson on her spoliation claim for the same reasons.

Summary judgment is appropriate when there is no issue of material fact from which a jury could find for the non-moving party. See Bilbe v. Foster, 176 So.3d 542 (La. Ct. App. 2015). Here, that means Defendants had to show there were no issues of material fact that could lead a jury to conclude Defendants were liable for the slip and fall injuries. Even without direct evidence, a plaintiff may satisfy their burden of proof with circumstantial evidence as long as it excludes every reasonable alternative cause for the accident, but the trial court found Mrs. Tomlinson could show neither direct or circumstantial evidence. The appellate court did not agree and reversed that decision.

Under Louisiana law, an owner of a building is not necessarily responsible for all injuries resulting from any risk posed by the building. Owners are only responsible for those injuries caused by defective conditions, and courts have recognized that defendants have no general duty to protect against hazards that are “open and obvious.” The logic behind this approach is that when a risk is open and obvious to everyone, the probability of injury is low. As a result, the owner of the premises is not required to go to the trouble and expense of fixing the condition that could be easily avoided by prudent persons.

In 2013, Roger Butler was working at an International Paper mill in Dequincy, Louisiana. His supervisor instructed him to clear a board jam from a chipping machine. While clearing the board jam, Butler fell down a set of stairs and suffered serious injuries. Butler brought suit against the mill claiming that the mill’s negligence caused his injuries because the stairs he fell down was covered in wood chips and other debris. The mill filed a motion for summary judgment, asserting that the wood chips and debris on the stairs were an “open and obvious” hazard against which it had no duty to protect Butler. The district court granted the mill’s motion, finding that Butler did not show there was a genuine issue of material fact concerning the mill’s duty because the hazard that caused his injuries was open and obvious. Butler appealed to the U.S. Court of Appeals for the Fifth Circuit.

For a hazard to be considered “open and obvious,” it must be apparent to all who encounter the dangerous condition, and not just the plaintiff who is injured because of it. See Broussard v. State ex. Rel. Office of State Bldgs., 113 So. 3d 175, 183 (La. 2013). Butler argued that there was no evidence the chips on the stairs were an open and obvious hazard to anyone other than himself. However, based on the video evidence provided by International Paper, the wood chips and debris were so numerous and prominent that it would be considered open and obvious to a jury. The Fifth Circuit Court concluded that the video evidence was sufficient to establish an open and obvious hazard, and nothing further was required by International Paper to establish that fact.

Generally, when an accident occurs on a property that is the result of the property owner’s negligence, it is presumed that the property owner is liable for the person’s injury. However, when liability does not exist, a motion for summary judgment is a procedural device that the defendant in a lawsuit can use to dismiss the plaintiff’s claim. Under Louisiana law, a motion for summary judgment will be granted if the pleadings and discovery show there is no genuine issue of material fact and that the party seeking summary judgment is entitled to judgment as a matter of law. See La. C.C.P. art. 966.

A trip-and-fall case offers an example of a defendant’s successful use of summary judgment. On October 11, 2007, James Dawson tripped and fell on the sidewalk near the entrance to Charity Hospital in New Orleans. He tripped on a crack in the sidewalk and suffered injuries as a result. Contending the State of Louisiana, as the owner of the hospital, was liable for failing to maintain the sidewalk, Dawson filed a lawsuit.

The State moved for a motion for summary judgment. In its motion, the State disputed Dawson’s allegation that it had authority over the sidewalk where his injuries occurred, arguing that without proof of authority, it could not be liable for Dawson’s injuries. See La. R.S. 9:2800. The State supported its motion with affidavits from Frederick L. Wetekamm, an engineer for the Louisiana Department of Transportation and Development and Robert J. Arnould, a maintenance supervisor for Charity Hospital. Wetekamm explained that the State was only responsible for maintaining its right-of-way on Tulane Avenue which began two blocks beyond the hospital. Arnold stated that Charity Hospital maintenance staff conducted no activities affecting the condition of the sidewalk in front of the hospital.

Imagine shopping for flooring on a Saturday.  The store is crowded and the samples of luxury vinyl tile are starting to all look the same.  The flooring store has graciously placed a bench in the showroom. Much to everyone’s embarrassment, however, the bench collapses under the weight of a patron.  Who is responsible for the injuries both to pride and physical body in this situation? For one Gretna, Louisiana woman, a lack of evidence on the cause of the malfunction caused her lawsuit to collapse as well.  

Schirelle Wiltz was at the Gretna Floor & Decor when the bench she rested upon suddenly collapsed.  The bench had been in the store without incident for two years prior to Ms. Wiltz’s accident. The bench apparently had a hidden manufacturing defect in the metal frame unbeknownst to Floor & Decor.  Ms. Wiltz filed a lawsuit in the Twenty-Fourth Judicial District Court in the Parish of Jefferson alleging that Floor & Decor was negligent in failing to discover the bench’s defect and in failing to warn that the bench had a 300-pound weight limit.  The District Court dismissed the lawsuit, and Ms. Wiltz appealed to the Louisiana Fifth Circuit Court of Appeal.

In a negligence case involving a dangerous defect, the injured party must show the dangerous item was in the custodian’s control, had a defect possessing an unreasonable risk of harm which caused damage, and the custodian knew or should have known about the defect.  See La. C.C. art. 2317.1.  In a case involving a merchant, an injured party must prove the merchant’s premises contained a foreseeable, unreasonable risk of harm, merchant knew or should have known of the danger, and merchant failed to exercise reasonable care.  See Thomas v. Caesars Entm’t Operating Co., 106 So.3d 1279 (La. Ct. App. 2013).  An injured party must also prove the standard elements of a negligence case.  Collins v. Home Depot, U.S.A., Inc., 182 So.3d 324 (La. Ct. App. 2015).

Slip and fall cases seem to go with grocery stores like peanut butter goes with jelly.  With all that slick inventory, it is surprising there are not more accidents. Who is responsible for injuries from these accidents?  As with many legal issues, it is complicated. For one man out of Slidell, a lack of evidence caused his case to fall flat and release the grocery store from all liability.        

 John Nash slipped on some rice and fell one August day while shopping at Rouse’s Market in Slidell.   Approximately five to ten minutes prior to the fall, a Rouse’s Market’s floor maintenance employee swept the aisle where Mr. Nash fell. A vendor stocking that same aisle verified the floor was swept at that time.  A floor manager’s inspection report confirms that the aisle was inspected minutes before the incident and no substances were discovered on the floor. Yet Mr. Nash filed a lawsuit against the supermarket. The lawsuit, however, was dismissed by the Judicial District Court for the Parish of St. Tammany.   The District Court agreed with Rouse’s Market’s defense that the store did not have actual or constructive notice of the condition causing the fall. Mr. Nash appealed to the Louisiana First Circuit Court of Appeal.

In Louisiana, a merchant owes a duty to persons using their premises to keep the aisles, floors, passages, in a reasonably safe condition.  La. R.S. 9:2800.6(A).  In addition, an injured party must prove that the condition causing the injury posed a foreseeable and unreasonable risk of harm, and the merchant had actual or constructive notice of the danger and failed to exercise care in removing the danger.  See Mills v. Cyntreniks Plaza LLC, 182 So.3d 80 (La. Ct. App. 2015).   In the absence of actual notice of an unreasonably dangerous condition, an injured party must show the dangerous condition existed for some period of time before the fall and that such time was sufficient to place the merchant on notice of its existence. See Clark v. J-H-J., Inc.,  136 So.3d 815 (La. Ct. App. 2013).   There is not an explicit rule on how much time is a sufficient amount of time to have put the merchant on notice; instead, the facts of each case are weighed.