Slip and Fall Injuries

April 25, 2019

Hammond Convenience Store Ordered to Pay for Customer’s Medical Treatment After Tripping Incident

the-gas-station-1526346-768x1024 Under Louisiana law, store owners can be held liable for damages if a customer is injured by an unsafe condition while visiting the premises. In November, 2011, Henry Moore, Jr. visited the Murphy Oil gas station and convenience store in Hammond, Louisiana. After making his purchases at the store’s counter, Moore started back toward his car when his foot came in contact with a black plastic pallet supporting a display of bottled water. Moore tripped and stumbled, but didn’t fall to the ground. He then reported the incident to manager on duty. After the incident, when Moore began to suffer back pain, Murphy Oil agreed to pay for Moore’s medical treatment. When Murphy Oil stopped paying for Moore’s treatment after approximately four months, Moore filed a lawsuit for damages, alleging that the water display created an unreasonably dangerous condition.

In Louisiana, merchants are required to exercise reasonable care to protect those who enter the premises. This duty extends to keeping the premises safe from unreasonable risks of harm and warning customers of known dangers. See La. R.S. 9:2800.6. Courts have adopted a four-part balancing test to determine whether a condition is unreasonably dangerous. One part of the test involves determining whether the defective condition was “open and obvious.” In general, if a hazard in open and obvious, a defendant does not have a duty to protect against the hazard. See Hutchinson v. Knights of Columbus, 866 So. 2d 228, 235 (La. 2004).

The trial court, holding that the question of whether the bottled water display created an unreasonably dangerous condition was a factual dispute, denied Murphy Oil’s motion for summary judgment and set the matter for trial. Moore agreed to a $50,000 damages cap, and the court based its ruling on a contributory negligence spectrum. The court found that Moore was 25% at fault for his injuries and was awarded a judgment for $37,500 against Murphy Oil. Murphy Oil appealed, arguing both that the trial court erred when denying its motion for summary judgment, and that the trial court should have subtracted the medical expenses it had already paid when determining Moore’s award.

March 27, 2019

The Wholly Obvious Hole: No Case for Injured Man in Metairie

by Berniard Law Firm

hole-1576687-1-658x1024 Determining liability when someone is injured on someone else’s property is a complex endeavor. One of the major factors is determining whether the injury resulted from an unreasonably dangerous condition.

While a new In & Out Express Car Wash was being built in Metairie, LA, local business owner Mr. Frederick Helwig fell into a hole, sustaining injuries. Mr. Helwig was well aware of the construction going on, as he owned the business next door and had watched the construction progress for 6 months. When Mr. Helwig was injured, he was crossing the construction site at 10:30PM and did not use a flashlight or any sort of illumination to light his way.

The injured Mr. Frederick Helwig had the burden of proof to establish liability, that In & Out Express Car Wash (1) had a duty to conform conduct to a specific standard, (2) that the defendant failed to conform to the standard, (3) that the defendant’s conduct in failing to live up to the standard caused plaintiff’s injuries, (4) that the defendant’s conduct was a legal cause of plaintiff’s injuries, and (5) that the plaintiff has proof of the actual damages done to them. See Detraz v. Lee, 950 So. 2d 557, 565 (La. 2007). Specific to the case of a dangerous condition on land, the injured Mr. Helwig had to prove that the hole was in In & Out Express Car Wash’s control, it presented an unreasonable risk of harm, that the defendant knew or should have known of the unreasonable risk, and that the damage was caused by In & Out Express Car Wash. See Babino v. Jefferson Transit, 110 So. 3d 1123, 1126 (La. Ct. App. 2013). At the crux of this case, the injured Mr. Helwig had to prove that the danger, the hole in the ground, was not open and obvious. Even if the hole was unreasonably dangerous, in that it would injury anyone who fell in it, there will be no liability if the dangerous or defective condition is obvious and apparent. See Bufkin v. Felipe’s La., LLC, 171 So. 3d 851, 856 (La. 2014).

March 25, 2019

Injured Man Denied Compensation After Falling on Property of a Public Entity

by Berniard Law Firm

37-Email-03-03-19-1024x986 Generally, individuals expect that when on the premises of a public entity, the land has been safely maintained and there is a low risk of becoming injured. If an individual did become injured, he or she would expect to be reasonably compensated for any injuries. However, in Louisiana, premises liability law differs from the law that is applied when suing a private landowner. As this case shows, establishing that a defect causes an unreasonable risk of harm is a difficult obstacle to overcome when suing a public entity and can leave injured parties with no compensation for their injuries.

A man who was seriously injured on the property Ville Platte Housing Authority (VPHA) was not allowed to recover damages for his injuries. Marcushawn Smith, the injured man, was walking on the grass when he fell and seriously injured his ankle in a six inch wide and more than four-inch deep hole on VPHA’s property. Mr. Smith filed a lawsuit against the VPHA, the Louisiana Housing Council, Inc., and FARA Insurance Services, Inc. to recover compensation for his injuries. The Louisiana Housing Council and FARA Insurance were later dismissed from the case. At the trial court in Lake Charles, Louisiana, the judge decided the hole that Mr. Smith fell in did not create an unreasonable risk of harm, dismissing Mr. Smith’s claim against VPHA. Mr. Smith appealed this judgment to the Third Circuit Court of Appeal, arguing that because he fell and was seriously injured, the trial court committed legal error by finding that the hole did not create an unreasonable risk of harm.

On appeal, the judge relied on a 2012 Louisiana Supreme Court case which stated that states that in order to recover for damages, the injured party must establish five facts: (1) the public entity had ownership of the defective thing; (2) the defect created an unreasonable risk of harm; (3) the public entity was or should have been aware of the defect; (4) the public entity failed to fix the defect in a reasonable time; and (5) the defect is the cause of the complainant’s injury. See Chambers v. Village of Moreauville, 85 So.3d 593, 597 (La. 2012). Usually, as was the case here, the second criteria is the hardest for an injured party to overcome.

March 19, 2019

Man’s Lawsuit Fails After Slipping on Wet Rug in West Baton Rouge Apartments

by Berniard Law Firm

33-post-photo-1024x683 Rain and a slick, tiled entryway are typically a bad combination. A recent Louisiana slip and fall case involved this exact scenario.

It had been steadily raining all day, and Allen Court Apartments resident James King left the building at night to go get dinner. Approximately a half hour later, King slipped and fell on the entryway of his apartment building, breaking his leg. King subsequently filed a lawsuit against the apartment building, the building’s insurance company, and the property managers for damages due to his injury.

Denying liability for King’s injury, the defendants motioned for summary judgment on the grounds that there was no defect in the apartment building King could point to and that he lacked causal connection between the defect and his injuries. The trial court granted the summary judgment motion stating that there was no genuine issue of material fact. King’s lawsuit was dismissed with prejudice, meaning the case was permanently over and King couldn’t bring it back into court. King appealed the trial court’s decision.

February 12, 2018

Citing Indemnity Provision, Court Attributes Liability on Leasee in Bastrop, Louisiana Slip and Fall Case

by Berniard Law Firm

shaking-hands-1240911-1024x768 Leasing agreements often are complex and lengthy, especially in a commercial context. A common provision contained in most leasing agreements is an indemnity provision. An indemnity provision is a section in a leasing agreement that requires the leasee (the person who leases the property) to take responsibility for certain lawsuits involving the leased property. A recent decision from the Second Circuit Court of Appeal for Louisiana illustrates the power of an indemnity provision.

The case revolves around a leased commercial building located in Bastrop, Louisiana. The building’s owner, Hollis Charles Larche, entered into a leasing agreement with Paul Eikert. Mr. Eikert obtained the lease in order to open up a grocery store. Contained in the lease is a provision that stated that Mr. Larche would be held harmless for any damages or injuries caused by defects on the building’s premises.

A couple of years after entering into the lease agreement, an employee of Mr. Eikert’s grocery store, Deborah Beebe, was injured while on the job. Ms. Beebe sustained her injuries after she slipped on water that came from a leak in the building’s ceiling. Ms. Beebe filed a lawsuit against Mr. Larche claiming that Mr. Larche knew of the leaking ceiling and failed to take appropriate measures to fix the leak. Mr. Larche, citing the indemnity provision contained in the leasing agreement, argued that Mr. Eikert is responsible for any damages resulting from Ms. Beebe’s injury. Mr. Eikert never responded to Mr. Larche’s claim that the indemnity provision allocated responsibility of Ms. Beebe’s injuries to Mr. Eikert. The trial court agreed, granting a default judgment on the issue for Mr. Larche. A default judgment is a judgment that a court can grant if one side in a legal matter fails to take steps to resolve the legal controversy. The default judgment is granted to the side who did take steps to resolve the legal controversy, in this case, Mr. Larche.

October 7, 2017

Louisiana Supreme Court Discusses Allocation of Fault in Slip and Fall Case Out of New Iberia

by Berniard Law Firm

old-meets-new-1222960-1024x685 Owning a business can be a daunting task and often times requires the assistance of outside contractors to complete various maintenance items and to aid in the upkeep of the premises. However, many merchants and customers fail to realize that the merchant may be liable for the actions of a subcontractor. Just how liable was the subject of a recent lawsuit out of New Iberia.

In this case, Patricia Ann Thompson filed a lawsuit against a Winn-Dixie grocery store in New Iberia, Louisiana after slipping and falling on a puddle in the freezer section of the store. Winn-Dixie contracted with a cleaning service which in turn contracted with KAP Cleaning Services (“KAP”) to clean the store. KAPS’s employee rolled up a mat to clean the floor in front of the freezer where Ms. Thompson fell. Moving this mat caused water to be exposed and ultimately led to Ms. Thompson slipping and falling on the grocer’s premise and sustaining injury. The Trial Court held that Winn-Dixie was 30 percent at fault and KAP was 70 percent at fault. Yet, the Louisiana Third Circuit Court of Appeal amended the distribution of fault and held that Winn-Dixie was 100 percent liable for Ms. Thompson’s injuries. The Court of Appeal supported its decision on two grounds. First, the Court of Appeal found that Winn-Dixie as the merchant was statutorily not permitted to share liability with a subcontractor. Second, the Court of Appeal found the contractual arrangement between the two parties allowed for operational control by Winn-Dixie over KAP’s employees which would not shield it from liability for a subcontractor’s actions. Winn-Dixie appealed to the Louisiana Supreme Court.

Generally, a merchant owes a duty to those on their premises to exercise reasonable care to keep its floors in a reasonably safe condition and to keep the store free of hazardous conditions under La. R.S. 9: 2800.6. However, when a merchant hires a subcontractor it can be more difficult for a court to assign fault. Generally, a principal is not liable for the actions of a subcontractor unless the principal retains the right to supervise or control the subcontractor’s work. See Sys. Contractors Corp. v. Williams & Associates Architects, 769 So. 2d 777 (La. Ct. App. 2000). La. C.C. art. 2323 and La. C.C. art. 2324 do not eliminate or make any exceptions for a merchant’s liability under La. R.S. 9:2800.6 but rather provide for comparative fault. Louisiana courts will apportion fault based on parties’ knowledge and control over the condition that created peril. See Watson v. State Farm Fire and Casualty Insurance Co., 469 So. 2d 967 (La. 1985) Under the Watson factor test, courts assess: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the ability of the actor, whether superior or inferior, and (5) any circumstances which might require the actor to proceed in haste without proper thought.

September 19, 2017

Parish of Lafayette Found Not Liable for Inmate’s Injury

by Berniard Law Firm

prison-door-1515179-683x1024 Law abiding citizen or not, people expect local governments to keep them safe, especially from dangerous conditions on public property. But, just how much responsibility do local governments have in keeping public grounds safe? This question was recently answered in a case coming out of Lafayette Parish.

On November 15, 2012, Summer Hunter, an inmate at Lafayette Parish Correctional Facility, was injured while being transported to the courthouse. Prior to the transfer, Ms. Hunter was handcuffed and shackled at the legs. Ms. Hunter was being escorted across the street by a deputy when her leg shackles became entangled on an expansion joint between slabs of the sidewalk. This caused Ms. Hunter to fall, resulting in a fractured ankle.

On November 13, 2013, Ms. Hunter filed a lawsuit in the Fifteenth Judicial District Court against the Lafayette Consolidated Government (“The Parish”) for injuries sustained as a result of the fall. In response, the Parish filed a motion to dismiss Ms. Hunter’s claim. The Parish asserted that it could not liable for Ms. Hunter’s injuries because it was not aware of any problem with the sidewalk prior to the date of her accident. The District Court granted the Parish’s motion to dismiss the lawsuit, finding that Ms. Hunter lacked the ability to present any evidence that the Parish had notice of the dangerous sidewalk. The District Court acknowledged that cities have a responsibility to keep its sidewalk reasonably safe, however, reasonably safe and perfect condition are not synonymous.

August 20, 2017

Marrero Winn Dixie Not Liable for Slip and Fall Injuries Due to Lack of Notice

by Berniard Law Firm

There really can be several hazards in a grocery store: rogue carts, other shoppers, scattered merchandise, to name a few. Even more common is the infamous puddle of water. Inevitably in a store full of liquids, patrons can slip and fall in a neglected puddle. But when should the grocery store (or any merchant) be required to compensate a patron for injuries sustained in a slip and fall case? This was the subject of a recent case out of Marrero, Louisiana.

Carol Evans was shopping at the Marrero Winn-Dixie when she slipped in a puddle of standing liquid. Ms. Evans brought a lawsuit against Winn-Dixie for her injuries alleging that she slipped in the puddle of liquid in the meat section of the store. The store’s co-director, Mr. Scioneaux, helped Ms. Evans complete an incident report. Subsequently, Mr. Scioneaux successfully tracked down what he believed to be the source of the moisture, a leaking 24-pack of water. He then reviewed surveillance video of the aisle where the incident occurred and saw no evidence of any other injuries. He further testified that the person who had the leaking 24-pack of water in their grocery cart was in the aisle only one minute prior to the accident. Ms. Evans testified that she did not notice any liquid on the floor until after she fell, and further described it as being clear. She also had no way to account for the length of time it had been present, and there were no prior complaints of water before Ms. Evans sustained her injuries. Winn-Dixie filed a motion for summary judgment, asserting that Ms. Evans could not show that Winn-Dixie had actual or constructive notice of the condition prior to her accident, which was required for a successful case. The Judicial District Court for the Parish of Jefferson granted Winn-Dixie’s motion for summary judgment based on Ms. Evan’s failure to prove notice as required. Ms. Evans filed an appeal with the Louisiana Fifth Circuit Court of Appeal.

Merchants are tasked with the duty of keeping their premises in reasonably safe condition. This means that a merchant must exercise reasonable care in keeping aisles, passageways, and floors free from any hazardous conditions that could reasonably cause injury. A plaintiff who sustains injuries while lawfully on the merchant’s premises must prove: [1] the condition created an unreasonable risk of harm that was reasonably foreseeable; [2] the merchant was aware of the condition that caused the damage, through either actual or constructive notice, prior to the injury; and [3] the merchant failed to exercise reasonable care to remedy the condition. See La. R.S. 9:2800.6. To succeed under a theory of constructive notice, a plaintiff must show that the hazardous condition existed for a period of time that it would have been discovered if the merchant exercised reasonable care. See Trench v. Winn-Dixie Montgomery LLC, 150 So.3d 472,475 (La. Ct. App. 2014). A plaintiff must present “positive evidence” of the existence of the condition prior to the accident. For employee presence to constitute constructive notice, a plaintiff must show that an employee either knew or should have known of the condition. The burden of presenting solid evidence in these cases is high; a plaintiff cannot successfully bring a slip and fall case based on speculation.

August 14, 2017

Entertainment Company Not Responsible For Concert Goer’s Injuries Sustained at Baton Rouge Centroplex, Despite Venue Hazards

by Berniard Law Firm

concert-1436178-1024x768 What starts out as an entertaining night out for a concert with friends, ends with painful injuries. Instead of enjoying your favorite music with companions, you must go to the hospital to treat injuries sustained due to negligent maintenance of the concert venue. You are now recovering from your injuries and are faced with medical expenses. You know that you shouldn’t be responsible for the medical bills; after all, you are hurt because someone failed to do their job. But who exactly is responsible? Determining the party responsible for personal injuries was a recent issue in a case out of Baton Rouge.

In March of 2006, Ms. Shannon Rodrigue went to a concert with her friends at the Riverside Performing Centroplex in Baton Rouge, Louisiana. As Ms. Rodrigue and her friends waited in line to enter the Centroplex, a Spectator Management Group (“SMG”) employee instructed the group to go around the side of the building and go down a flight of stairs in order to get their seats. As the group proceeded to head down the stairs, Ms. Rodrigue missed a step and fell down the flight of stairs. The fall was the result of a poorly lit stairwell. Ms. Rodrigue sustained several injuries to her head, back, neck, knees, and wrists.

Ms. Rodrigue filed a lawsuit against several parties whom she believed were responsible for the poorly lit stairwell that ultimately led to her injuries. The parties included the Centroplex, the Centroplex’s insurer, and the City of Baton Rouge-Parish of East Baton Rouge; SMG and its insurer. In response to Ms. Rodrigue’s filing of the lawsuit, SMG and its insurer filed a motion to have Ms. Rodrigue’s lawsuit against them dismissed. SMG asserted that Ms. Rodrigue had no claim against them and their insurance company because they did not have custody of the stairwell where Ms. Rodrigue fell. SMG further claimed that even though Ms. Rodrigue and her friends were directed to the stairwell by one of its employees, SMG was not aware of the lighting situation of the stairwell before her fall. The District Court for the Parish of East Baton Rouge granted SMG’s motion and Ms. Rodrigue’s claims against it were dismissed. Ms. Rodrigue appealed to the Louisiana First Circuit Court of Appeal.

July 21, 2017

Slip and Fall Lawsuits Require Proof in Louisiana, Not Mere Speculation

by Berniard Law Firm

to-market-1510735-1024x768 No legal case is without controversy, but some of the most controversial types of cases involve a slip and fall injury. For some, it is hard to believe that a “little fall” could actually cause substantial injury. Often times, those who bring a slip and fall action are seen as milking the situation to try to get money from a business. However, when a person is injured he or she must prove that the injury was the result of someone’s alleged negligence. This proof requires that the injured individual show that the facts surrounding the incident support his or her claim. When coupled with a stringent legal standard, a dispute of what occurred at the time of the injury complicates the matter. The following slip and fall lawsuit filed against the Albertsons in Shreveport, Louisiana, shows the difficulty in bringing such claims to trial.

Yvonne and Aristide Ton were visiting an Albertsons’s grocery store in 2013. Upon arriving at the store, Ms. Ton went straight to the display of pumpkins out front, while Mr. Ton went to get a cart. After looking at the pumpkin display, Ms. Ton looked around for her husband, took a step or two, and then fell injuring her shoulder. Ms. Ton could not identify exactly what happened when she fell, but she claimed in her lawsuit that the fall was caused by a “defect in the concrete.” Albertsons responded by claiming that the concrete area where Ms. Ton fell posed no reasonable risk of harm. Albertsons provided witness testimony stating that the area where Ms. Ton fell had no prior history of falls and that the store had received no complaints regarding the area around the pumpkin display.

Under Louisiana Law, a business must “keep aisles, passageways, and floors in a reasonably safe condition.” La. R.S. 9:2800.6. This duty imposes a reasonable effort on the business to keep its premise free of any unsafe conditions which may cause injury. To bring a slip and fall claim against a business, the injured person must prove three things: 1) the floor surface presented an unreasonable and foreseeable risk of harm 2) the business created or knew of the unsafe floor surface and 3) the business failed to use reasonable care.