Negligence Liability in Case Against City in Louisiana Slip and Fall (Part II)

As previously discussed, the Daigle v. City of Shreveport case regards an instance where a woman slips and falls on a freshly painted city sidewalk, that had no markings to indicate it was freshly painted, and she sues the city for negligence damages.

When an individual is injured as a result of an unreasonably dangerous condition existing on a landowner’s property, he can recover damages relying on La. Civ. Code Ann. art. 2315, which is the basis of general negligence liability. The owner, or person, having custody of the property has a duty to keep the property in a reasonably safe condition, and must discover any unreasonably dangerous condition on the premises, and either correct that condition, or warn potential victims of its existence. Louisiana’s duty-risk analysis is made up of five elements: 1) duty – proof that the defendant has a duty to conform his conduct to a specific standard, 2) breach – proof that the defendant’s conduct failed to conform to the appropriate standard, 3) cause-in-fact – proof that the substandard conduct was a cause-in-fact of the plaintiff’s injuries, 4) scope of liability – proof that the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries, and 5) damages – proof of actual damages.

Proof of liability on the part of a public entity, such as a city in this case, is governed by La. Civ. Code Ann. art. 2317, and provides in part that individuals are responsible, not only for the damage occasioned by their own acts, but for that which is caused by the act of persons for whom they are answerable, or of things which they have in their custody.

A city has a duty to maintain its streets in a safe condition for use by the public. To determine whether a defect complained of presented an unreasonable risk of harm, courts balance several factors including the probability and gravity of the harm presented by the risk, against the social utility of the thing involved. There is no standard rule for determining whether a defect presents an unreasonable risk of harm. Instead, the trier of fact determines whether a defect presents an unreasonable risk of harm and that determination is reviewed under the manifest error standard. There must be a dangerous condition that would be reasonably expected to cause injury to a prudent person exercising reasonable care under the circumstances.

A pedestrian has a duty to pay attention and be conscientious of his or her surroundings. However, pedestrians are not required to scrutinize the pavement for irregularities, and it is reasonable for a pedestrian to react to traffic conditions by looking at vehicles instead of at the pavement. A city, when performing work on a curb where pedestrians walk, therefore, must warn of a dangerous condition and the warning must be sufficient to alert an ordinary pedestrian, considering all the circumstances.

The trier of fact is given deference in allocating fault to the different parties and looks at the following factors: 1) whether the conduct resulted from inadvertence or involved an awareness of danger, 2) how great a risk was created by the conduct, 3) the significance of what was sought by the conduct, 4) the superior or inferior capacity of the parties, and 5) any extenuating circumstances which might require one to proceed in haste and without proper thought.

The plaintiff bears the burden of proving special damages by a preponderance of the evidence. In meeting his or her burden of proof on the issue of future medical expenses, the plaintiff must show that, more probably than not, these expenses will be incurred and must present medical testimony that they are indicated and the probable cost of these expenses. General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty. The trial court is afforded much discretion in fixing general damages because of its superior position to evaluate the witnesses’ credibility and see the evidence firsthand.

If you or a loved one feel as though you may have been injured due to the negligence of your city, town, or the state, then please contact the Berniard Law Firm to determine the validity of your claim, and for expert advice and legal services.