Articles Posted in Slip and Fall Injuries

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The plaintiff, Linda Garcie, filed a claim against the city of Shreverport after she sustained multiple injuries from tripping over an elevated portion of a sidewalk within the city. Ms. Garcie was walking her dog when she tripped over a crack in the sidewalk. The sidewalk was located outside the residence of Ms. Emily Pasquier, and was maintained by the city of Shreveport. After the pain in her right shoulder continued to bother her days after the accident, Ms. Garcie decided to seek medical treatment for her injuries. The court found the city to be 75% liable for Ms. Garcie’s injuries, while the court determined that the remaining 25% of liability was from Ms. Garcie’s own fault. In filing its appeal, the city contended that the trial court erred in finding that the city was at fault for its failure to maintain the sidewalk on which Ms. Garcie tripped because the city had no knowledge of the apparent defect in the sidewalk.

The determination for a city’s liability over public objects, like a sidewalk, rests on three key factors: knowledge, opportunity, and neglect. LSA-R.S. 9:2800 states that in order to find a public entity liable for damages based on the condition of objects within their control, the public entity must have had actual or constructive notice over the condition of the object, have had a reasonable opportunity to remedy the defect, and have failed to do so. In Lee v. State, the court determined that in order for an individual to recover against a public entity, the plaintiff must show by a preponderance of the evidence that (1) the thing that caused damage was in the defendant’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) the defendant possessed actual or constructive notice of the defect, yet did not take corrective action within a reasonable period of time; and (4) the defect was a cause in fact of plaintiff’s harm. The court in Graves v. Page established that in order for the appellate court to overturn the decision, the appellate court must determine whether the trial court’s conclusion is reasonable based upon the record as a whole.

Unfortunately for the city of Sherveport, the evidence presented at the trial court was heavily stacked against them. During the trial, it was discovered that Mr. Pasquier contacted the city on multiple occasions to notify them of the sidewalk’s condition. Originally, the Pasquires reported a three inch crack in the sidewalk, which was later repaired by the city. However, Mr. Pasquire testified that sometime between 2006 and 2007 a one inch crack in the same sidewalk reappeared. Again, he called the city to request a repair of the sidewalk. However, Mr. Pasquire also testified that the newly formed crack in the sidewalk was obvious to him and he had walked multiple times across the sidewalk without tripping. The city’s superintendent of street and drainage was responsible for the intake of street issues, like Mr. Pasquire’s report of the reoccurring sidewalk crack. The superintendent, relying on the city’s C-CAR complaint system, stated that at no time did Mr. Pasquire’s new sidewalk complaint ever appeared in their system. The system relied on an operator to input all public complaints requiring city maintenance. Due to Mr. Pasquire’s vague recollection of reporting the second sidewalk issue, and the failure of the city’s complaint system to not recognize any complaint by Mr. Pasquire, the city questioned whether the complaint was made at all. The city argued that Ms. Garcie failed to establish all elements of liability necessary to hold the city responsible because there was sufficient evidence to show that Mr. Pasquire’s sidewalk issue was never reported to the city, therefore preventing actual or constructive notice by the city of the defect.

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Cities and towns are responsible for the maintenance and upkeep of streets and sidewalks. The issue arises though, when such streets and sidewalks fall into disrepair and injure residents. Yet, no person shall have a cause of action against a public entity (such as a city) for damages caused by the condition of things within its care and custody unless such entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had reasonable opportunity to remedy the defect and has failed to do so. Louisiana revised Statute 9:2800. To recover against a public entity such as a city for damages certain requirements have to be met. Thus, unless the legal requirements are all fulfilled a plaintiff may or may not be able to recover depending on the circumstances.

In a recent Louisiana Second Circuit Court of Appeal decision, the court explores the requirements that a plaintiff must meet in order to recover for injuries sustained as a result of a defective thing in the city’s custody and care. The facts of the case involve a plaintiff who was walking her dog along a city sidewalk in Shreveport, Louisiana. While walking her dog she tripped over an elevated portion of the sidewalk and fell to the ground. The fall caused her substantial pain in her shoulder which led her to seek medical treatment the day after the incident at the emergency room of Willis Knighton Health Center. She eventually filed a petition for damages against the defendant city of Shreveport and was awarded $964.99 for medical expenses and $20,000 in general damages. The City appealed the decision on the basis that the requirements for a lawsuit against a city were not fulfilled.

To recover against a city for damages due to a defective thing, such as a sidewalk, the plaintiff must prove by a preponderance of evidence four things.

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When an unexpected personal injury occurs, the injured party may find the situation requires legal action. An injured person deserves to know where the money to pay for medical expenses, lost wages, and incidental expenses stemming from an injury will come from, and in many cases a legal claim can serve as a means to provide that knowledge. What many people thinking about initiating a claim for personal injury overlook is that the standards of the court in allocating fault for an injury may dictate the amount of recovery possible for an injured claimant.

Fault allocation can alter the amount of a damage award an injured party receives. The Louisiana Second Circuit Court of Appeal re-allocated percentages of fault that had been awarded by the lower court in the case of Matlock v. City of Shreveport . Matlock, a teacher and assistant softball coach, sued the City of Shreveport after she tripped and fell in a hole in the side walk on her way to softball practice at Cargill Park. Matlock twisted her ankle and suffered an avulsion fracture. After being cared for at a local hospital, she was instructed to follow up with an orthopedic specialist and to receive physical therapy.

Matlock sued the City of Shreveport for negligence in maintaining the sidewalk on which she was injured. The trial court awarded her damages and allocated 100% of the fault for the accident to the City. The City appealed the judgment arguing that the lower court’s fault allocation was inappropriate and that it should not be held 100% responsible for the plaintiff’s injuries.

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Trip and fall cases like that of Ms. Arlene Chambers represent a significant portion of civil cases in Louisiana and around the country. There are various issues of law to review when the defendant appeals a successful result. Ms. Chambers had won a judgment for her injuries against the small Louisiana Village of Moureauville. The Village appealed and was only slightly successful in getting the reduction in the award that they sought.

The events leading to this case occurred on a sidewalk controlled and maintained by the Village in April 2008. Ms. Chambers came upon a “ledge” in the sidewalk where two abutting pieces of the sidewalk were of differing altitudes. She tripped on this ledge and injured her right arm. Ms. Chambers sustained a “comminuted fracture of the radius.” This injury resulted in several rounds of physical therapy that, while appearing at the time to be successful, were not a permanent solution to Ms. Chambers’ nagging injuries. These injuries eventually spread to her shoulder due to the necessary immobilization of her arm caused by the initial injury.

Ms. Chambers was awarded $200,000.00 for past and future pain and suffering; $25,000.00 in hedonic damages; $54,148.00 in future wage loss; $46,616.17 in past medical expenses; $10,000.00 in future medical expenses; and $3,617.34 in past wage loss. The Village was found to be 100 percent at fault for the accident. Ms. Chambers was also awarded all costs and fees, including the fees necessary to pay experts to testify on her behalf.

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Louisiana jurisprudence recognizes the concept of the interlocutory appeal, which is an appeal of a ruling by the trial court before the verdict is ultimately rendered. An interlocutory appeal is available only for issues that would directly affect the trial’s outcome or that would not be reviewable except by immediate appeal. Thus, not all interlocutory judgments made by a trial court are eligible for appeal. For instance, a trial court’s judgment granting a party’s motion for new trial is an interlocutory judgment that is ineligible for appeal because it does not decide the merits of the case. This very rule was at the center of the Third Circuit Court of Appeal’s recent unpublished opinion in the case of Dauzat v. State of Louisiana, Department of Transportation and Development.

On March 10, 2008, Christine Dauzat boiled several batches of crawfish in a large, heavy pot on the patio of her home located in Avoyelles Parish. When she was finished cooking, Dauzat and her adult son carried the pot of still-boiling-hot water to the roadside ditch that ran the length of her property. While attempting to dump out the pot, Dauzat slipped on a ramp that crossed over the ditch. The hot water from the pot poured over her as she fell into the ditch, burning her severely. Dauzat sued the Department of Transportation and Development (DOTD) alleging that the ramp and ditch were located within the DOTD’s right-of-way and that the DOTD failed to properly maintain the ramp. At trial, a jury returned a verdict finding Dauzat to be 100 percent at fault for the accident. Dauzat filed a motion for a new trial, which the trial judge granted after a hearing. Then the DOTD filed a suspensive appeal in the Third Circuit Court of Appeal that sought to delay the commencement of the new trial. Dauzat countered that the DOTD’s appeal was improper “because a judgment granting a motion for new trial is an interlocutory judgment.” The Third Circuit agreed: “The judgment granting [Dauzat’s] motion for new trial does not decide the merits of this case and, thus, is interlocutory.” Louisiana jurisprudence has expressly held that “a judgment granting a motion for a new trial is a non-appealable interlocutory judgment.” Thus, the court found that the trial court’s ruling was a “non-appealable, interlocutory ruling,” and Dauzat was able to proceed with her new trial.

At the center of this judgment was the fact that the trial court’s granting of a new trial did not directly resolve the ultimate issues in the case – whether the DOTD had a duty to maintain the ramp and ditch in front of Dauzat’s property, and whether it failed to do so. The trial court’s judgment simply permitted the matter to be brought before a second jury for resolution, and that ruling was therefore not appealable. The policy of limiting appeals is based on the preference of handling matters at the trial court level whenever possible, as the trial court offers the most direct means by which to resolve factual disputes.

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The story behind Davis v. Foremost Dairies is a tale of a woman who could be considered at least slightly accident prone. Three different doctors weighed in on the probable cause of her main injury, a bulge in the disc between two of the vertebrae in her neck. In addition to the car accident with one of the defendants, she suffered a fall down some stairs and an incident in which an eight-year-old child grabbed her neck. The issue at hand was whether or not the accident with the defendant was the proximate cause of her permanent pain.

Proximate cause is a legal concept that most students of law find confusing at first. Proving that a defendant was the proximate cause of a plaintiff’s injury is crucial to proving the overall claim. Palsgraf v. Long Island Railroad Co. is probably the most famous case laying out the legal definition of proximate cause. Chief Judge Benjamin Cardozo, later Justice Cardozo, wrote this often cited opinion. His decision, strongly dissented to by Judge William Andrews, deviates somewhat from what could be called the common sense definition of causation.

For those not familiar with the Palsgraf case, here is a brief explanation. This case dealt with a woman injured by a falling scale on a train platform that was knocked over by vibrations in that platform cause by fireworks. These fireworks exploded when two guards pushed and pulled a man carrying a non-descript package onto a departing train. The issue at hand was whether or not the men, who were in the employ of the train company at the time of the incident, were liable for Ms. Palsgraf’s injuries. A traditional “but-for” analysis of this event would say that Ms. Palsgraf would not have been injured but for the acts of the railroad company’s employees. The New York Court of Appeals reversed the New York Supreme Court and denied relief to the plaintiff. The court determined that the behavior of the train company employees was too remote from the resulting harm. The men were not considered the proximate cause of the plaintiff’s injuries. How do courts determine the issue of causation in a modern context? The answer is very commonly expert medical testimony. Ms. Davis’ case used the opinions of several of these medical experts.

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After filing a lawsuit, plaintiffs are required to notify defendants of the impending suit so that they may defend and respond to the claim. Without notice that a lawsuit has been filed against them, defendants’ due process rights may be violated if an unfavorable judgment is entered or rendered without their knowledge. The time frame for this requirement – commonly known as “service of process” – varies among state and federal jurisdictions. In Louisiana, plaintiffs have ninety days from filing a lawsuit to request service of process, which is known in Louisiana as “citation and service.” The lawsuit officially begins once a defendant receives citation and service because only then will a court have jurisdiction over all of the parties. If service is not completed within the statutory period, defendants may justifiably make a motion to dismiss the case. Plaintiffs, however, may be able to defeat a motion to dismiss if they can show good cause for being untimely with the requirement. This issue was recently before the Supreme Court of Louisiana in George Igbinoghene and Sebastian Busari v. St. Paul Travelers Ins. Co.

In the seminal case, Igbinoghene and Busari (hereinafter “plaintiffs”) filed their petition in the parish of Orleans on May 18, 2007, but failed to request service within ninety days of the filing date. St. Paul Travelers Insurance Company (hereinafter “St. Paul”) filed a motion to dismiss for insufficient service of process. The district court denied the motion and St. Paul appealed.

On appeal, the plaintiffs argued that denying the motion to dismiss was proper because good cause was shown for being untimely since they agreed to St. Paul’s request to extend the time to file responsive pleadings. The Supreme Court found this argument unpersuasive given that such events occurred in 2008 and 2009, which were outside of the relevant period. Moreover, the Supreme Court stated that requesting an extension to file pleadings did not act as an express, written waiver of citation and service. In addition, the Supreme Court declared that St. Paul’s knowledge of the suit did not make citation and service unnecessary. To support this assertion, the Supreme Court relied on Naquin v. Titan Indemnity Co., a Louisiana Fourth Circuit Court of Appeals case, which held that “defendant’s actual knowledge of a legal action cannot supply the want of citation because proper citation is the foundation of all actions.”

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According to the Louisiana Code of Criminal Procedure, a merchant may use reasonable force to detain a suspected shoplifter for questioning or arrest for up to an hour. La. Code Crim. P. Art. 215(A)(1). A merchant who acts under this provision is entitled to immunity from any civil actions arising out of the detention, provided he can show that he had reasonable cause to believe that the detained person committed theft; he did not use unreasonable force; the detention occurred on the store premises; and the detention did not last longer than 60 minutes. Freeman v. Kar Way, Inc.

The issue of the merchant’s reasonableness was at the center of the recent case of Rhymes v. Winn-Dixie Louisiana, Inc. On the morning of December 24, 2007, Thomas Rhymes visited the Winn-Dixie grocery store in Abbeville to purchase some cough syrup. While shopping, Rhymes’s blood sugar began to drop and he felt dizzy and weak. He slipped the cough syrup into his jacket pocket, grabbed several bags of honey buns, and made his way toward the checkout. A store manager intercepted Rhymes and demanded the products from his jacket pockets. The manager then told Rhymes to leave the premises but a moment later told him to stay, though Rhymes ignored this request and continued toward the door. The manager grabbed Rhymes by the neck and twisted his left arm behind his back. The manager attempted to hit Rhymes as they made their way to the back office but was stopped, mid-swing, by another store employee. When the police arrived, a different manager advised the officer to release Rhymes as the store did not wish to press charges. Rhymes filed suit for physical and mental injuries resulting from the incident. Winn-Dixie answered, denying that Rhymes was injured and asserting the merchant’s detention privilege under the Louisiana Code. Winn-Dixie also filed a motion for summary judgment, which the trial court granted on May 20, 2010. Rhymes appealed.

The Third Circuit began its review with the well-established principle that summary judgment is appropriate only when there is “no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” Rhymes’s argument on appeal was that a question of material fact “regarding whether the force used by the manager was reasonable” existed. Indeed, Rhymes argued that the store manager’s actions were “beyond unreasonable.” The court likened the analysis under the merchant statute to determining whether the force used by police officers in arresting criminal offenders is reasonable, for which the Louisiana Supreme Court has held:

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The plaintiff in this case, Eileen Laday, was a passenger on a bus owned by the Lafayette City-Parish Consolidated Government. The bus had been donated to the City-Parish in the aftermath of Hurricane Katrina. When the bus was donated, it was missing a plexiglass shield that was designed to keep the bus door from coming into contact with passengers. As Ms. Laday sat in the front seat, the door opened and trapped her arm. She was not consistent about how long her arm was trapped.

Ms. Laday went to a doctor the next day, complaining of neck and shoulder pain radiating into her right arm. The doctor ordered an MRI, which showed degenerative cervical disc conditions as well as a disc herniation. She later saw an orthopedic surgeon, who recommended that she undergo surgery. As of the date of trial, she had not yet had the surgery, which was estimated to cost between $60,492.60 and $61,492.60.

The judge conducted a bench trial (where there is no jury) and ruled in favor of Ms. Laday because of the high standard of care imposed on common carries like operators of public buses. He awarded her $60,000 in general damages, $24,084.56 in past medical expenses, and $60,492.60 for future surgery costs to be placed into a reversionary trust under La.R.S. 13:5106, with interest to go to Ms. Laday.

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On the evening of October 29, 2004, Jeanine Pryor, then 69, attended a football game between Barbe High School and New Iberia High School at Lloyd G. Porter Stadium in Iberia Parish. Pryor, who was there to see her grandson play, was recovering from hip surgery and required a cane to get around. She sat in the bleachers on the visitors’ side of the stadium to be with the other fans of the Barbe High Bucs. The seat boards on the visitors’ side bleachers were uniform and approximately eight inches apart in height, except that the space between the first and second seat boards had 18 inches between them. When Pryor first arrived, she realized she could not step up the distance between the first row and the second, so she “grabbed the second board and lay on her side so she could swing one leg up at a time.” Then she stood up and was assisted by her daughter the rest of the way up the rows to her seat. At halftime, when Pryor descended the bleachers in order to visit the restroom, she attempted to simply step down the distance between the first and second seats, rather than use the same maneuver she had executed on the way up. In the process, she fell and was severely injured. Pryor filed suit against the New Iberia school board alleging that the bleachers were defective. After a bench trial, the district court entered a judgment for the school board, having determined under a risk/utility analysis that the condition of the bleachers was not unreasonably dangerous. Pryor appealed and the court of appeal reversed. It rejected the district court’s analysis, finding there was “no utility or social value in exposing visiting patrons to an eighteen-inch vertical differential between the seat boards in question.” The court apportioning 70 percent fault to the school board and 30 percent fault to Pryor, awarding her damages of over half a million dollars. The school board appealed.

The Louisiana Supreme Court recited the general rule that “the owner or custodian of property has a duty to keep the property in a reasonably safe condition,” though the owner generally has “no duty to protect against an open and obvious hazard.” It is the trial court’s role to decide which risks are unreasonable based upon the facts and circumstances of each case, and review of its determination on appeal is subject to the manifest error standard. Louisiana courts have adopted a risk-utility balancing test for this analysis, which requires weighing four factors:

(1) the utility of the thing. Here, the court concluded, “it is undisputed that the bleachers serve a social utility purpose by providing seating for patrons of the stadium,” and further, that “the eighteen-inch gap between the first and second seat is not a defect in the bleachers per se, but simply part of their design.”

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