Louisiana Court Stresses Importance of Constructive Notice in Trip-And-Fall Cases
In Smithwick v. City of Farmerville, the Second Circuit Louisiana Court of Appeals affirmed a trial court’s dismissal of a plaintiff’s trip-and-fall case for failure to prove that the municipal defendant had actual or constructive notice of a shallow depression in the city-maintained right-of-way.
The plaintiff, Carol Smithwick, was waiting at a street corner in Farmerville, Louisiana for her child’s school bus to arrive. Smithwick was traversing a sidewalk, and as she stepped off the sidewalk and onto the street, she tripped on a depression in the street’s shoulder. The depression was shrouded by grasses growing around it, and the depression was not immediately visible to Ms. Smithwick at the time. Accordingly, she tripped, fell, and sustained immediate injuries that later caused reflex sympathetic dystrophy.
Under Louisiana Civil Code, Article 2317, a municipal defendant cannot be held liable for damages caused by dangerous conditions unless the municipal defendant had either actual or constructive notice of the condition, and had a reasonable opportunity after receiving such notice to remedy the condition and then failed to do so. Consequently, Article 2317 required the Louisiana Appeals Court to examine whether the City of Farmerville had actual or constructive notice of the shallow depression that caused Ms. Smithwick’s fall.
The court explained that actual notice is “knowledge of dangerous defects or conditions” by an employee or officer of the municipality that has a duty to keep the property involved in good repair or to report defects and dangerous conditions to authorities. An example of actual notice would have been a city road supervisor inspecting the road and noticing the depression before the fall. This is because a supervisor would have a preexisting duty to report the condition to the proper authorities, and because a supervisor is often acting as an agent of the city itself (as opposed to a mere employee). However, because no such discovery was previously made by any such muncipal actor, the court ruled that the City of Farmerville did not have actual notice of the depression.
The court next went on to explain the concept of constructive notice. Referring to La. R.S. 9:2800, the court stated that constructive notice is “the existence of facts which imply actual knowledge.” In other words, circumstances involving pedestrians’ behavior in the area of the depression or circumstances stemming from physical conditions around the depression could lead to constructive notice. The concept of constructive notice is a more complicated notion than that of actual notice.
In determining whether the City of Farmerville had constructive notice, the court noted that throughout the school year, 35 people regularly gathered in the area of the depression twice a day to wait for their own school children. Of that mass of people, none had ever reported to the City of Farmerville the existence of the depression. Furthermore, the court acknowledged that the City of Farmerville regularly mowed and trimmed the area around the depression and no city maintenance employee had ever previously noticed the shallow depression. As such, the state appellate court ruled that the City of Farmerville did not have constructive notice of the shallow depression either.
Because Ms. Smithwick could not show that the City of Farmerville had either actual or constructive notice of the depression, the court affirmed the lower court’s decision that she should not recover.
The first lesson of Smithwick is a blunt one: In trip-and-fall cases, if the defendant has not received prior notice of the dangerous condition that caused the fall, Louisiana courts will not hold the defendant responsible for the plaintiff’s corresponding injuries. Defendants have no duty to remedy dangerous conditions they do not have prior reasonable notice of. The second lesson of Smithwick is a more subtle one: The issue of constructive notice can often be a “dealbreaker” in the success or failure of a plaintiff’s trip-and-fall claim. Constructive notice is a murky concept that is not always immediately apparent soon after the injury occurs.
Because constructive notice is both an important and little-understood concept, it is imperative that plaintiffs who have recently experienced a trip-and-fall contact an experienced attorney. An attorney is vital in requesting and examining documents that may or may not indicate existing constructive notice. By knowing which questions to ask of the defendant, an experienced attorney can accurately pinpoint whether the defendant had prior notice of the dangerous condition that caused the fall.
If you’ve recently experienced a trip-and-fall and suffered injury, please contact the attorneys at Berniard Law Firm. Mr. Berniard’s seasoned staff will work to ensure all elements of a successful recovery, including that of actual or constructive notice, can be proven in a court of law.