Slip and Fall Injuries

August 5, 2016

Failure to Prove “Constructive Knowledge” Leads to Dismissal of Mandevile Plaintiffs Lawsuit Claiming He Fell in Hole

hole-1576687-1-658x1024 Sometimes what you do – or fail to do – before filing a lawsuit, can have a big impact on the final result, as Ross Lynch of Mandeville, Louisiana recently learned. Lynch owns property on Girard Street in Mandeville. Two of his neighbors own a lot directly adjacent to his property that is used by the City of Mandeville as a public parking lot. Overgrown grass and weeds were growing along the fence that separated the two lots. Until filing a lawsuit, Lynch never mentioned this problem to the neighbors or asked them to get rid of the overgrowth, which he considered to be an “obvious nuisance.”

In June 2010, Lynch entered the neighbors’ property without their permission in order to trim the grass and weeds. In the process, Lynch inadvertently fell into a four-foot deep hole that had been hidden by the dense growth. The hole was caused by a broken sewer pipe that belonged to the City of Mandeville. Lynch injured his foot and ankle and filed a lawsuit to get compensation for his injuries and reimbursement for medical bills, naming the property owners and the City of Mandeville as defendants.

Lynch argued that the property owners, as well as the City, had “constructive knowledge” of the dangerous hole on the property before he was injured because the overgrowth of weeds and grass had thoroughly hidden it and it therefore posed an unreasonable risk of danger. “Constructive knowledge” of a dangerous condition refers to the existence of facts that lead to an inference of actual knowledge of the condition. See La.R.S.9:2800(D). Lynch also argued that, because the property was used by the City as a public parking lot, it was under the control of the City, as well as of the property owners.

June 28, 2016

Insurance Company Evades Liablity in New Orleans Slip-And-Fall Lawsuit

by Berniard Law Firm

chinese-take-away-box-1319752 No one wants to ever get involved in a slip-and-fall lawsuit. If your unfortunate enough to be injured in a slip and fall finding out who is responsible to pay for your injuries can become a troublesome matter. A recent Louisiana Fourth Circuit Court of Appeal opinion demonstrates just how complicated these lawsuits can get when a woman alleged she slipped and fell in the China Palace restaurant on South Carrolton Avenue in New Orleans.

As a result of a fall at China Palace, Debra Hershberger filed a lawsuit against the restaurant in July of 2011. China Palace leased its commercial space from LKM Convenience, L.L.C. It is important to note that LKM Convenience leased the space to China Palace, but it did not operate the restaurant. LKM Convenience did have insurance through Montpelier US Insurance Company, but China Palace was not named or insured under its policy. China Palace filed a third-party demand against Montpelier demanding defense and indemnification for LKM Convenience. At the same time, LKM Convenience named Montpelier as a defendant and demanded that the insurance company provide a defense and indemnification for China Palace, its tenant. Consequently, Montpelier filed exceptions of no cause of action and no right of action. The exceptions are legal objections to LKM Convenience’s lawsuit against Montpelier and China Palace’s demand. Ultimately, the trial court maintained the exceptions and China Palace’s and LKM Convenience action were dismissed with prejudice in May of 2014. They appealed that judgement to the Fourth Circuit Court of Appeal for the State of Louisiana.

On the appeal, the Fourth Circuit looked at whether the trial court erred in sustaining both exceptions and whether the trial court erred in not giving China Palace and LKM Convenience a period of time to amend their petitions. Ultimately, the Court of Appeals agreed with the lower court regarding all of the questions.

June 25, 2016

Defendant in Mandeville K-Mart Slip and Fall Lawsuit Has Case against it Dismissed

by Berniard Law Firm

kmart-s-giant-clown-balloon-1427236 In 2011 Peggy McCastle-Getwood was an employee at the K-Mart in Mandeville, Louisiana. On May 26, 2011 she arrived to work around 8:00 a.m. and went to the back of the store to place her belongings in the locker room. With a cup of coffee in her hand, Ms. McCastle headed back to the front of the store and slipped and fell.

In March of 2012, Ms. McCastle filed a petition for damages and named Professional Cleaning Control (Professional) as a defendant. Professional Cleaning Control was a company hired by K-Mart to clean the floors in the Mandeville store. She asserted that she sustained injuries caused by the negligence of a Professional Employee leaving a liquid substance where she fell. Subsequently, K-Mart filed a petition to intervene, setting forth that it had paid for medical expenses and workers’ compensation benefits for Ms. McCastle, as a result of her injury at work. See LA C.C.P. Art. 1091

In September of 2013, Professional filed a motion for summary judgment based on Ms. McCastle’s deposition. In her deposition Ms. McCastle testified that she did not how the liquid substance got on the floor, nor did she know how long the liquid substance was on the floor. Based on this testimony, Professional asserted that Ms. McCastle would not be able to meet her burden of proof that Professional owed a duty of care, or if a duty was owed, that the duty had been breached.

June 21, 2016

West Monroe Woman’s Slip and Fall Lawsuit Revived by Appeals Court on Constructive Knowledge Grounds

by Berniard Law Firm

Handrails-768x1024 As the old saying goes, “accidents happen.” But, in personal injury lawsuits, like in many matters, another saying is more on point: “The devil is in the details.” And on that point the Second Circuit Court of Appeals reversed a summary judgment in favor of the City of West Monroe in a lawsuit brought by an elderly woman who claimed she was injured in a fall. The lawsuit against the city arose from purported negligence in maintaining the handrails of a handicap ramp located at the West Monroe court facility. The plaintiff, Bernice Walters, alleged that the handrail collapsed as she was using it to lower herself into her vehicle, which was in a parking space adjacent to the handicap ramp. Walters alleged that the city had constructive knowledge of the defective condition of the handrail. In response, the City of West Monroe moved for summary judgment and the motion was granted by the trial court.

The trial court cited a lack of evidence that the city had actual or constructive notice of the condition of the handrail; there was insufficient circumstantial evidence to prove that the city knew of the defective handrail. Appealing the summary judgment, Walters asserted that the city violated the Americans with Disabilities Act by failing to maintain the handicap ramp in a manner consistent with the ADA regulations. This violation of the ADA allegedly satisfied the burden of proof for constructive knowledge, since the existence of relevant regulations suggests that the city should have known that their lack of maintenance was negligent.

Upon review, the appellate court accepted Walters’ theory of constructive knowledge and reversed the summary judgment. The appellate court examined the relevant Civil Code statute concerning public entities. See La. R.S. 9:2800. As a result, the court concluded that constructive knowledge does not require circumstantial evidence proving actual knowledge; instead, the standard for constructive knowledge is satisfied if a reasonable custodian or owner should have known of the defect while exercising reasonable care.

June 19, 2016

Bogalusa Slip and Fall Lawsuit, Is Travis’s Grocery and Market Liable?

by Berniard Law Firm

Grocery-Store Anyone who has purchased chicken from a grocery store knows that for some reason the packing always seems to leak. But what happens if that leakage occurs in a grocery store and you slip on it and hurt your back, is the grocery store responsible? The following case out of Washington Parish Louisiana clarifies the standards used by courts when addressing that question.

On July 5, 2011, Sylvia Jackson-Silvan visited Travis’s Grocery & Market on Derbigny Street in Bogalusa, Louisiana. While waiting in line in the check-out aisle, she slipped on “blood drippings from chicken” that had pooled on the floor. Mrs. Silvan was helped up by store employees, who quickly mopped up the liquid, before leaving the premises without further assistance.

Mrs. Silvan and her husband, James Silvan, filed a lawsuit the following February, arguing that Travis’s Market was “strictly liable for allowing dangerous conditions to exist in the store, which posed an unreasonable risk of harm and caused injury to Mrs. Silvan.” The Silvans then filed a motion for summary judgment, stating there was no material issue of fact to be decided at trial. No memorandum, exhibit, or statement of fact accompanied the motion. Travis’s Market filed its own motion for summary judgment, which was accompanied by a memorandum and numerous exhibits, stating that the essential elements of the Silvans’ claim could not be supported. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Dickerson v. Piccadilly Restaurants, Inc., 1999-2633 (La. App. 1Cir. 12/22/00).

December 19, 2013

Injured Employee Limited to Workers’ Compensation Following Accident at Lena Power Plant

by Berniard Law Firm

Work-related injuries, especially in construction, are not uncommon. However, the outcomes in workers’ compensation cases vary because the contractual relationship between the parties is often not clear. Under Louisiana law, workers’ compensation is provided to an employee if they’re injured by an accident “arising out of” and “in the course of” his employment with a statutory employer. However, the issue centers on whether the defendant is a statutory employer thereby limiting the plaintiff to workers’ compensation as their sole remedy. If a valid, written contract recognizes the existence of a statutory employer relationship, it creates a rebuttable presumption; this requires careful interpretation of the terms of the contract.

On August 12, 2008, Louis Fox (hereinafter “plaintiff”), employee of Foster Wheeler North America Corp. (hereinafter “Foster”), was assisting with the installation of boiler units at the Rodemacher Power Station near Lena. While working inside a cyclone tower, the plaintiff alleged that he sustained an injury when an object fell from above striking his head and neck. The plaintiff sought damages beyond workers’ compensation against several defendants including CLECO Power (hereinafter “CLECO”), owner of the power station, and general contractor Shaw Constructors, Inc. (hereinafter “Shaw”).

The installation of the boiler units was the result of a written contract between CLECO Power, owner of the station, and Shaw Constructors, Inc. As general contractor, Shaw selected Stone and Webster, Inc. (hereinafter “Stone”) to take charge of engineering and procurement services. Stone then entered into a purchase order agreement with Foster for the sale and installation of the boiler units.

December 17, 2013

Summary Judgment Tripping Case from Baton Rouge Illustrates Court Complexities

by Berniard Law Firm

A recent case appealed from the Parish of East Baton Rouge provides a great example not only of the potential difficulties of recovering damages for negligence from a merchant, but also of summary judgment and how it works. In November 2006, the plaintiff entered the defendant’s store, tripped on what she claims was a ‘flipped-up’ doormat, and struck her head on some shelving. She was injured as a result and tried to recover damages from the merchant, claiming that she was injured as a result of the merchant’s negligence in maintaining the premises. The trial court granted summary judgment in the merchant’s favor, and the appellate court affirmed.

If someone is injured while lawfully on a merchant’s property and wishes to recover damages for negligence from that merchant, they must meet four requirements provided by Louisiana law. The claimant must show that their injury was the result of an unreasonably dangerous condition on the merchant’s property, that the danger presented by that condition was reasonably foreseeable, that the merchant knew or should have known of the danger prior to the claimant’s accident, and that the merchant did not take reasonable steps to correct the situation.

Summary judgment is rare and requires clearing some pretty high hurdles. A court must first find that there is no genuine contention as to any facts that might influence the outcome of the case. If the court so finds, then it will simply apply the law to the relevant facts and rule in a party’s favor as a matter of law, perhaps before there is even a chance for a trial. Where the party moving for summary judgment will not bear the burden of proof at trial, for instance if that party is a merchant defending against a negligence claim, then s/he need only show the opposition’s inability to prove or disprove one or more key elements of his/her action or defense. The opposing party must then answer somehow to prove that s/he will be able to prove the element(s) in question at trial, or lose on summary judgment.

December 4, 2013

Burden of Proof in Claims Against Merchants

by Berniard Law Firm

Louisiana merchants must keep their premises safe not only for their guests or customers but also for any person invited onto the property for business purposes. This also includes persons delivering goods to restaurants like in the case of Jones v. Jula Trust, LLC.

Jones was a deliveryman for Pepsi. En route, he stopped at a Jennings Popeye’s restaurant to deliver some Pepsi products that morning. While pulling his loaded dolly through the restaurant’s back door, he slipped and fell. His slip caused the boxes of Pepsi to topple on top of him. About a year after his accident, Jones initiated suit against Popeye’s by filing against the landlord of the property, JULA Trust, LLC. Jones claimed that either water or grease on the floor caused his fall, but he could not explain where the substance had come from. The Popeye’s manager said that he had conducted a walk-through inspection of the premises that morning and had not seen anything slippery on the floors. Nor had any employees notified him about any slippery substance on the floor the morning of the accident.

La. R.S. 9:2800.6 requires a merchant to maintain the through ways of the premises in a safe manner, and in a condition so as to not cause harm to patrons. The burden of proof remains with the plaintiff to show the following elements: (1) The conditions at hand posed a reasonably foreseeable danger to the injured person in the case, and that the harm was not a reasonable harm one would expect in the situation; (2) The merchant, prior to the incident, caused the conditions responsible for, or could have prevented the accident, after becoming aware of the problem; (3) The merchant violated the standard of care necessary for the situation. Not having a written or verbal safety and cleanup code is not enough on its own to prove that a standard of care was violated when evaluating reasonable care in a situation or incident.

December 2, 2013

Court Throws Out Lafayette Parish Case As Plaintiff Fails To Deliver Service of Process Before Deadline

by Berniard Law Firm

It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.

November 16, 2013

Jurisdiction and the Long-Arm Statute in Louisiana

by Berniard Law Firm

In order to hear a case, a court must have jurisdiction. Jurisdiction means that the court has legal authorization to hear that case. Without that authorization, parties must go somewhere else to try their case because that court cannot legally hear their arguments. There are two general types of jurisdiction: personal jurisdiction and subject matter jurisdiction. The type of court occasionally limits subject matter jurisdiction. The tax court, for example, can only hear cases regarding tax disputes. Personal jurisdiction means that the court has some authority over the person. Ususally, if the parties live in the same area as the court, the court will have jurisdiction in the case.

The Fourth Circuit Court of Appeals for the State of Louisiana recently explained personal jurisdiction and its requirements in a case arising from the St. Bernard 34th Judicial District Court. In that case, the plaintiff lived in Louisiana, but the defendant, a real estate company was incorporated and did business in Tennessee. The plaintiffs were a couple that rented a cabin in Pigeon Forge, Tennessee. They made the reservation online. When they went to the cabin, however, the couple both slipped and fell on the wet steps of the cabin. The couple attempted to sue the real estate company in Louisiana state court.

Generally, if the parties are from two different states, then it is likely more appropriate to file the case in federal court. Federal courts have diversity jurisdiction, which allows them to settle issues between residents of different states. However, state courts can also occasionally hear cases that involve parties who are not from the same state.