Slip-and-Fall Dismissal Upheld Due To Lack of Evidence

The Third Circuit Court of Appeal for the State of Louisiana affirmed a Calcasieu Parish court’s decision to grant the defendants’ motions for summary judgment and dismissal of the plaintiff’s claims for injuries she sustained when her electric grocery cart allegedly malfunctioned while she was grocery shopping.

In considering a motion for summary judgment, a judge must consider whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Because the moving parties here (the defendants) did not have the burden of proof at trial, they merely needed to show that there was an absence of factual support for at least one of the elements of the plaintiff’s claim. This is a question of law and is reviewed by an appellate court de novo, without any deference to the trial court.

The plaintiff in this case was a 73-year-old woman who used a motorized cart called the Mart Cart, provided by Kroger. She alleged that in order to reach a can from a shelf, she dismounted the Mart Cart and put her left foot on the ground, but while she had one foot on the cart and another on the ground, the cart rolled forward, causing her to fall. She filed suit against Kroger and the manufacturer of the Mart Cart, alleging that they were liable for her injuries under the Louisiana Products Liability Act (the LPLA).

Specifically, the plaintiff’s claim was governed by La. R.S. 9:2800.6, paragraph B. In order to succeed on the merits of the claim, the plaintiff had to prove that (1) the condition existing in or on Kroger’s premises presented an unreasonable risk of harm and that risk was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and (3) the merchant failed to exercise reasonable care. Constructive notice means that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

Immediately after the accident, the manager at Kroger’s tested the cart’s brakes and did not find any problems. The day after, he sent the cart to Kroger’s mechanic, who also found no safety hazards. The plaintiff’s case was dismissed in part because she was unable to present any evidence to the contrary that the cart presented an unreasonable risk of harm. Her own expert, who also evaluated the cart, was only able to suggest the potential for an unreasonable risk of harm and his statements did not rise to the level of creating a genuine issue of material fact. She was also unable to show that Kroger had actual or constructive notice that the cart posed an unreasonable risk of harm.

The plaintiff also sued under a products liability theory, laid out in the LPLA at La.R.S. 9:2800.51 et seq. The burden was on the plaintiff to show that the product (the Mart Cart) was unreasonably dangerous in one of four ways: (1) its construction or composition; (2) its design; (3) failure to adequately warn; or (4) its nonconformity to an express warranty. Under the LPLA, the question of unreasonable dangerousness is assessed at the time the product leaves the manufacturer. The plaintiff in this case had evidence that there were alternative, safer brake design systems, but did not show that they were available at the time of manufacture. The plaintiff was also unable to show that the warnings posted on the Mart Cart were inadequate; indeed, she admitted that she had not read the warnings.

If you have been injured in a slip-and-fall case, you must show that the owner of the premises had actual or constructive notice that a condition on its property posed an unreasonable risk of harm.

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