Articles Posted in Slip and Fall Injuries

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supermarket-1575072-1024x692If you slip and fall on a pile of food left on the floor of a supermarket and evidence shows that an employee observed the hazard a minute earlier but failed to warn you, it may seem obvious that the store was at fault and owes you full compensation for your injuries. However, as Sheneatha Stevens of Lake Charles, Louisiana learned, the situation may not be so clear cut. The amount of compensation you are awarded will depend on whether you had knowledge of the hazard at the time you were injured, personal characteristics or distractions in the environment affecting your ability to avoid the hazard, any risks you took and why you took them, and whether the trial court finds the evidence you present on these factors to be convincing. An aspect of the situation that may not seem important to you can wind up having a major effect on your credibility and, ultimately, on the amount of damages awarded to you, as Ms. Stevens learned. Her case shows why it is important to have an experienced attorney representing you when you have been injured in a retail store and both sides have strong evidence supporting their positions.

On January 5, 2012, Sheneatha Stevens slipped and fell in a pile of rice that had spilled onto the floor near a  drink cooler she was walking toward in the Market Basket supermarket in Lake Charles, Louisiana. She was taken by ambulance to Lake Charles Memorial Hospital, released and underwent chiropractic treatment between February 2012 and April 2012. Her medical exam showed no tenderness, just soreness and bruising that the trial court believed was from an earlier injury.

Ms. Stevens filed suit against Market Basket in December 2012.The trial court evidence included a surveillance video that showed her entering the store while talking on her cell phone, walking straight toward the drink cooler, slipping but not falling on the spilled rice near the cooler, pulling a drink out of the cooler and, about 22 seconds later, slipping and falling in the rice as she retraced her steps down the same aisle and headed toward the store entrance. Evidence also included Ms. Stevens’ testimony that she had filed more than 20 personal injury claims since 2003, as well as a finding that a Market Basket employee had seen the spilled rice less than a minute before Ms. Stevens entered the store but failed to warn her about it.

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IMG_1132Putting on a festival at the New Orleans Superdome is a lot of work. One vital part of that work is to confirm that the insurance policy actually covers the activities and location of the festival.  Festival Productions, Inc. – New Orleans (“FPINO”) learned this lesson the costly and hard way.  The Louisiana Fourth Circuit Court of Appeal’s decision shows the gaping hole in FPINO’s coverage that was entirely avoidable.  

In July 2005, Deborah Daniels slipped and fell on an unknown substance at the New Orleans Superdome when she was attending the Essence Festival. A year later, she filed a lawsuit in Orleans Parish alleging she suffered injuries from the fall, naming a host of defendants including FPINO, the producer of the festival, and its insurer, Maryland Casualty Company (“MCC”).   


MCC did not believe that it was required to indemnify or defend FPINO in the suit and so it filed a motion for summary judgment against FPINO.  MCC argued that FPINO’s policy did not cover damages sustained by the plaintiff because the Superdome was not a designated premises covered under the policy.  FPINO filed a cross-claim against MCC and Essence, alleging that as an insured under the policy, MCC owed FPINO a defense and indemnity, and MCC refused to do so.  

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curb-1-1571125Our court system includes rules that aim to promote court efficiency.  Some of the rules may sound intimidating, but having a good attorney, one who is able to build a strong strategy and with strong knowledge of the rules, makes the necessary difference.  One such rule is called res judicata – Latin for “a matter judged.”  Unfortunately, Mr. Springer, a resident of Nannie O’Neal Senior Apartments on Oneal Street in DeRidder, Louisiana recently lost his case because of failing to understand how this rule applied.

When a party asserts that res judicata applies, the goal is to prevent the litigation of issues that have already been adjudicated in a previous lawsuit between the same parties. See Atheron v. Rosteet Law Firm, 137 So.3d 1246 (La. Ct. App. 2014). In other words, it prevents the opposing party from getting a second chance in court.  The rationale for the rule are logical, after all it would be strange and unreasonable to allow a plaintiff to continuously sue the same defendant, on the same matter, until the plaintiff receives a favorable decision.

In Mr. Springer’s case, Mr. Springer first filed a complaint with a state court in Beauregard and MAC-RE. Beauregard and MAC-RE own and manage Nannie O’Neal Senior Apartments respectively. Mr. Springer is handicapped.  He alleged that he tripped and fell over a curb in the apartment building’s parking lot, and that the apartment complex did not have the required access for the handicapped.  He also alleged that the owner and the managing company were aware of this, but failed to address the situation.

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parking-space-1441053-1-1-1024x768Not all slip and fall cases are successful as the burden of proof on the victim can be high in Louisiana.  In a recent opinion out of the Louisiana Fifth Circuit Court of Appeals the trial court’s decision to award $20,000 to Carolyn Bennette, who slipped and fell at the Brother’s convenience store and gas station in Avondale, Louisiana was reversed.  As discussed below, the appellate court stated that the defendants were correct in arguing that the trial court held the defendants to an improper burden of proof. In order to prove a slip and fall claim, a victim (here, the Plaintiff Ms. Bennette) has the burden to produce direct evidence supporting her claim, and the Appellate Court found that Ms. Bennette failed to prove three aspects of the claim.

On October 7, 2010, Ms. Bennette, after buying lottery tickets, walked through the parking lot towards her car and slipped on a piece of wood that was protruding from an expansion joint in the concrete at the Brother’s Avondale convenience store. The piece of wood lodged into her shoe causing her to fall and break her elbow, among other injuries. Ms. Bennette alleged that Brother’s was negligent in failing to maintain its property in a reasonably safe condition, failing to warn customers about the allegedly dangerous condition, and allowed an unsafe and dangerous condition to exist after proper notice and/or constructive notice of same. The jury at the trial, where Ms. Bennette was the only witness, rendered judgment in Ms. Bennette’s favor to the tune of $20,000.

A store owner is not liable for every accident that occurs on the premises. See Harrison v. Horseshoe Entertainment, 36 (La. App. 2 Cir. 8/14/02); 823 So.2d 1124. Slip and fall claims are governed, in Louisiana, by La. R.S. 9:2800.6, the statute explaining liability of merchants for “slip and fall” claims by customers on store premises.  Importantly, while Louisiana law requires merchants to exercise reasonable care to protect persons who enter the establishment, to keep the premises safe from unreasonable risks of harm, and to warn of known dangers, the merchant need not prove anything to win the case. It is up to the injured person who is bringing the suit to produce evidence in support of the claim. The victim must prove the elements of their case, specifically: 1) that the merchant gave a reasonable effort to keep the premises free of any hazardous condition which may reasonably give rise to damage, 2) that there was an unreasonable risk of harm that was reasonably foreseeable, 3) that the merchant either created or had actual or constructive notice of the condition prior to the accident, and 4) that the merchant failed to exercise reasonable care. Proving all of these elements can be challenging for slip and fall victims, as we saw in this case.

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crowd shopping

Sometimes going shopping on Black Friday can be dangerous, as Sylvia Scott learned when she went shopping at the Dillard’s Department Store at Esplanade Mall in Kenner, Louisiana and slipped on a plastic sign that had fallen to the floor.  A business might be liable for such a misfortune if they are aware of a hazard and have not taken the proper steps to remedy the hazard before a customer gets injured.  However, sometimes an accident is just an unfortunate accident, and that is why it is important for all parties, whether they are an injured customer or a business worried about facing a lawsuit, to seek out excellent lawyers to represent their interests when someone gets hurt. The following case out of Jefferson Parish discusses the burdens Louisiana Courts place upon plaintiffs to show that their accident was no accident at all.

On the morning of the incident, Ms. Scott went to Dillard’s to take advantage of the store’s Black Friday deals.  She entered the store at 8:30 a.m., just a half hour after the store had opened, and slipped and fell on a “cling sign” that had fallen off the door.  Ms. Scott did not accept medical attention on the scene, but eventually needed pain management, physical therapy, and surgery for the injuries she suffered due to the fall.  It was at that point that Ms. Scott sued Dillard’s for her injuries, alleging that Dillard’s did not exercise reasonable care in inspecting the premises and was therefore liable for her injuries.

In Louisiana, the plaintiff bears the initial burden of proving each element of a slip-and-fall claim. See La. R.S. 9:2800.6(B). A merchant owes a duty of care to keep the premises in a reasonably safe condition, including the aisles, passageways, and floors.  In order for the merchant to be liable for an injury caused by a slip-and-fall, several elements must be established.  First, the condition must have presented an unreasonable risk of harm and the risk must have been reasonably foreseeable.  Second, the merchant must have created the condition or had actual or constructive notice of it, prior to the accident occurring.  Finally, the merchant must have failed to take reasonable steps to remedy the condition.  Essentially, the plaintiff must show that the condition was dangerous and it was foreseeable that it could cause an injury.  The merchant must have either caused the condition, known of its existence, or should have been aware of its existence if properly monitoring the store.  Finally, the merchant must have neglected to take action to fix the condition or cordon off the area where it existed so that customers are reasonably protected from injury.  The plaintiff must establish all of these elements, and failing to establish a single element will be fatal to the claim.

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hospital-s-corridor-1631146-1024x765If your unlucky enough to slip and fall at a business the first person you would think about suing is the business itself. However, businesses today contract out many aspects of cleaning and other maintenance and in doing so also alleviate their responsibility for negligence on their property.  The following case out of St. Tammany Parish discusses the concept of who might be at fault for a slip and fall when the cleaning of floors is contracted out to another party.

In 2005, Joy Smith was visiting a friend who was a patient at Northshore Regional Medical Center (Hospital) in Sidell, Louisiana. As Ms. Smith was walking down the hall, she slipped and fell in some water near where the floors had just been buffed. Ms. Smith filed a lawsuit against the Hospital alleging they were negligent in failing to properly warn her of the hazard that caused her fall. The Hospital answered the lawsuit and filed a third party demand, adding as third party defendants Hospital Housekeeping Systems (HHS), and the employee of HHS who had just buffed the floor. The Hospital had a contractual relationship with HHS to provide the Hospital with housekeeping services for the hospital.

The Hospital filed a motion for summary judgment in the lower court seeking to have Ms. Smith’s claim against the hospital dismissed. The Hospital alleged that it was merely the property owner, and it should not be held liable for conditions created by HHS as they contracted with them to clean the floors.  See LSA-C.C.P. art. 969. Within the contractual obligations of the Hospital and HHS, HHS was responsible for maintaining the area where Ms. Smith had fell. The lower court agreed, and granted the summary judgment.

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glass-2-1543598-1-1024x683Often in a discussion of tort law, the determination of whether an environment is reasonably safe is left up to the trier of fact in a particular case.  Often, the trier of fact is a jury who listens to the evidence of the case and returns a verdict about the cause of the plaintiff’s injuries. But how much discretion does a trier of fact actually have to determine the standard of reasonableness and whether or not the defendant breached this standard? A case from the Louisiana Third Circuit Court of Appeal discusses the standards by which an appellate tribunal must review a jury’s finding when the factual basis for the jury’s finding is called into question.

On March 16, 2006, Chermaine Dibartolo, a cosmetology student, was cleaning the “glass room”; a roughly eight foot, nine inch by ten foot, seven-inch space at Stage One-The Hair School in Lake Charles, Louisiana. Ms. Dibartolo tripped over her own bag and was injured.  At trial, the Ms. Dibartolo asserted that Stage One owed her a duty of care against such injuries and that the Stage One breached this duty. Ms. Dibartolo argued that it was typical for multiple students to be working in the small space of the glass room with their belongings on the floor, thereby creating a dangerous environment that led to her injury. Unfortunately for Ms. Dibartolo, the jury disagreed and returned a verdict in favor of Stage One.

Ms. Dibartolo moved for a judgment notwithstanding the verdict (a motion seeking the trial judge to reverse the jury’s findings and reverse or amend the verdict) or a new trial. Her motion was denied. She then appealed on three grounds, arguing that: (1) the jury erroneously found no defect in the glass room itself; (2) the jury erroneously concluded that Stage One did not know that there was an unreasonable risk of harm; and (3) the jury erroneously concluded that the defect she alleged existed in the glass room did not cause her to fall.

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supermarket-1-1419299-1-1024x681Would you expect a routine trip to your local grocery store to end with a herniated disc and a possible need for surgery? Probably not.  Trips to the grocery store are often without incident. However, people do get hurt sometimes, either from their own clumsiness or — as the Louisiana Court of Appeal, Second Circuit, found in a recent case — by the negligence of the store.

Donna Guerrero (the “Plaintiff”) was shopping at Super 1 Foods (the “Defendant”) in West Monroe one evening in January of 2010. Looking upward on the shelves for coffee, the Plaintiff tripped and fell over a 10-inch-tall rectangular box on the floor, which had been placed there for restocking purposes. The Plaintiff suffered from a T1-2 herniated disc, she continued to suffer from pain thereafter, and there is a possibility that surgery may be required in the future if the injury continues to worsen. The Plaintiff filed a lawsuit against the Defendant. The trial court found that the Defendant was not liable, and the Plaintiff appealed.

In order to impose liability on a merchant — that is, a store like that of the Defendant — for a patron’s injuries resulting from an accident, a plaintiff must prove that: (1) the condition presented an unreasonable risk of harm that was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the dangerous condition; and (3) the merchant failed to exercise reasonable care. La. R.S. 9:2800.6(B).

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parking-lot-1445848-768x1024When a person is injured and they file a lawsuit to recover damages for their injuries, they expect to “have their day in court,” to be able to present their case and all of the facts and evidence that support their case. But what if the other side argues that there is no real disagreement about the facts and that the facts do not support the injured party’s claim? A judge can decide early on in a lawsuit that there is no real question about a material fact and that reasonable persons would come to the same conclusion when considering the facts. This is what happened to Mr. Salvadore Tramuta when he filed suit for personal injuries in Jefferson Parish, Louisiana.

Mr. Tramuta fell as he stepped from the raised sidewalk in front of a strip mall to the parking lot. The reasons for his fall are the crux of the lawsuit. The strip mall’s owners, Lakeside Plaza, L.L.C., had recently corrected what they thought was a dangerous hazard to customers and unwittingly created for themselves the basis for Mr. Tramuta’s lawsuit.

Lakeside’s strip mall has about eight stores with a raised sidewalk running the length of the building. At first, the step was reasonably manageable from the sidewalk to the parking lot, but over time the soil settled and the step became larger as the parking lot settled lower. Lakeside corrected this problem by having an additional step made between the sidewalk and the parking lot so that customers would not have such a large step down or up. The parking lot had parking spaces fronting the sidewalk and perpendicular to it. Each parking space also has a parking bumper parallel to the sidewalk. When Lakeside added the additional step they chose to leave the parking bumpers in place. As a result, the step down from the sidewalk was shorter but the area between the parking bumpers and the step was lessened, creating less space for customers to step as they exited the stores.

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cards-1456946-1-1024x768A night at Harrah’s Casino in New Orleans not only can not only break your bank but it could break your back as well if your not careful.  Unfortunately for one Louisiana man black jack turned into broke back when he slipped and fell on water on the bathroom floor.  Gregory Beggs was out for an evening of black jack at Harrah’s Casino, in New Orleans when he had to use the restroom. Mr. Begg’s noticed that the bathroom floor had a large puddle of water on the floor. Begg’s let a Harrah’s employee know of the situation, and it became clear several other employees already knew the issue existed. The Casino failed to clean up the spill on the floor, and when Begg’s returned to the bathroom needing to go “Urgently” around an hour and a half later the water was still littering the floor. Noticing the liquid, Begg’s attempted to use the urinal but nevertheless slipped and fell injuring his back.

The First City Court of New Orleans found Mr. Begg’s to be 50% at fault for the accident. On Appeal Harrah’s argued that the lower court erred in finding Begg’s only to be 50% at fault, stating instead he should have been seen as 100% responsible for the damages.

In examining this problem, the appeals court looked to the Louisiana Supreme Court, and its decision in Duncan v. Kansas City Southern Railway Co., 773 So.2d 670, 680-81. In the Duncan ruling the Louisiana Supreme Court determined that “‘the trier of fact is owed some deference in allocating fault’ since the finding of percentages of fault is also a factual determination. Clement v. Frey, 666 So.2d 607, 609, 610.” In plain English the court determined that under ordinary circumstance the finding of degree of fault should be left to the trier of fact, or jury, to determine. Only if the amount apportioned is clearly wrong should the court intervene.

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