Articles Posted in Slip and Fall Injuries

ice-calves-1543085-1024x770Ice storms can create hazards for the general public as well as employees. A Mansfield nurse found out that parking lot falls do not qualify for workers’ compensation benefits. A Shreveport Hospital was able to avoid paying workers’ compensation benefits with the help of an excellent attorney after the employee’s fall.

Joyce Lafitte-Nesom is a nurse manager at Christus Schumpert Highland Hospital (the Hospital) in Shreveport. She typically worked an eight-hour shift from 4:00 pm until midnight. She commuted to the Hospital from her home in Mansfield, Louisiana. On February 11, 2014, the area had an ice storm and many nurses were unable to make their shifts due to the storm. The Hospital was put on diversion and stopped accepting patients due to the shortage of employees.

Ms. Nesom worked until 1:40 am instead of midnight because she was told by Hospital security that the Hospital parking lots were icy and the Hospital was low on materials to apply to the parking lot to help alleviate the slippery conditions. The roads to her home in Mansfield were also closed by the police due to the hazardous conditions. After her shift ended, Ms. Nesom made a decision to wait until the roads were better. She tried to rest in an empty room, but at 5:00 am she gave up and started performing her normal duties. She did not count this toward her working hours for the day. Another nursing house supervisor who lived closer, Ahleeka Cummings, allowed Ms. Nesom to stay at her place until conditions improved.

black-hole-1181587-1024x768If injured on someone else’s property, it is important to know what has to be proven in order for a legal case to go forward. If the injury occurs from a defective structure, then the owner of the premise must have constructive knowledge of the defectiveness. The factors a court evaluates when the defective structure is on public property differ from those of a private owner. So, what happens if you are injured on someone else’s property?

A judgment by the 19th Judicial District Court granting the East Baton Rouge Parish Housing Authority (“the Authority”) a summary judgment motion and dismissing the claim by Andrew Blevins (“Blevins”) and his employer’s insurance company, Stonetrust, was affirmed by Louisiana First Circuit Court of Appeal. Summary judgment is granted when there is no real dispute as to the facts of the case, and the party who requested the summary judgment, known as the mover, is entitled to win the case as a matter of law La. C.C.P. art. 966.

Blevins was working at Electrical Building Service, LLC (“EBS”) and while on the Authority’s property, he stepped into a hole that was hidden by tall unkempt grass, causing him to fall and fracture his ankle. Blevins alleged that the Authority was aware or should have been aware of the giant hole that injured him. When a premise owner should have known about a defect, the knowledge is called “constructive notice.” If constructive notice is shown, the Authority is liable for damages. Here, those damages included medical fees and workers’ compensation benefits that Stonetrust wanted as a reimbursement payment.

StockSnap_D6BZSQ2NM2-1024x683Walmart is buzzing with pedestrian traffic on a daily basis. Where crowds of people are gathered, accidents are sure to follow. Sometimes Walmart’s products are knocked off of shelves, children spill juice in the aisles, and liquid products can slip from a person’s grasp and splatter across the floor leaving a hazardous environment for anyone to slip and fall. Despite Walmart’s best efforts to keep the stores clean, accidents still happen. As a result, legal services may be needed. If that is the case, information about the parties involved is exchanged between the opposing counsels for a period of time known as discovery. Information may be gathered through depositions or a series of questions under sworn testimony out of court. Once sufficient time has been provided for discovery, a party may determine that there is no factual basis for the case to move forward. Because of this lack of material fact, the party may then make a motion for summary judgment. This motion, if granted, can result in a dismissal of the entire lawsuit. Our justice system, however, provides an appeal process for situations where these judgments were granted in error! So, what do you do when you have been blindsided by summary judgement?

In January 2014, Mrs. Mirian Rivas took an ordinary trip to a Walmart in Harvey, Louisiana. While there, she unexpectedly slipped and fell, resulting in injuries. Mrs. Rivas filed for damages in September of 2014 and served Walmart with discovery requests. The following December, those discovery requests were answered and properly mailed by Walmart. Mrs. Rivas and her co-plaintiff, Mr. Cardona, were then deposed by Walmart on April 15, 2015.

Exactly one month later, Walmart filed a motion for summary judgment asserting that Mrs. Rivas lacked sufficient legal elements in her claim against Walmart for her injuries under La. R.S. 9:2800.6. Mrs. Rivas asserted that Walmart’s discovery answers were not completed and that she needed further opportunity to depose the Walmart employees named in Walmart’s answer. The Trial Court granted Walmart’s motion for summary judgment against Mrs. Rivas stating that the discovery time was sufficient. An appeal was instantly filed with the Louisiana Fifth Circuit Court of Appeal alleging the Trial Court erred in granting Walmart’s motion because Mrs. Rivas lacked sufficient time for the discovery process.

utility-truck-1239978-1024x446Property owners have a duty to keep their property safe against unreasonable risks of harm to those who are invited onto the premises. However, if a potential risk is “reasonable” is a matter of debate. If the hazard in question is obscured, the owner may be liable. But if the hazard is glaringly obvious, it may be the fault of the injured party. The discourse as to what constitutes “open and obvious” is at the heart of this case.

Virgil McCoy was a Cleco employee doing some routine maintenance on an electrical meter in Rosepine Apartments I when fate struck. In an effort to access the meter, McCoy had to walk a narrow path behind a row of overgrown bushes and stand precariously close to an uncovered water meter just to begin the repairs. As he worked, his left foot slid backward and he fell into the hole where the water meter sat. McCoy, and his employer Cleco, filed a lawsuit against Rosepine Seniors Apartments Partnership, their insurers, the property managers, and even the Town of Rosepine, for liability for McCoy’s injuries (collectively called “Defendants”).

The Defendants countered by claiming the hazard the meter presented was “open and obvious,” and McCoy should have been aware of the danger. They moved to have the case dismissed by filing a motion for summary judgment. Summary judgment is when the court decides for one party without a full trial. When the court examines all the information submitted for trial up to that point, e.g. the complaint, the defendant’s answer, items procured in discovery, affidavits, depositions, etc., and finds there is no genuine dispute of fact between the parties, summary judgment is entered. La. C.C.P. art. 966. The one who bears the burden of proving there is no dispute is not so clear-cut. One thing to note is that the party filing the summary judgment motion does not need to show all the elements of the other party’s case are insufficiently proven, but only that one or two elements cannot be met with the evidence presented. The burden then shifts to the other party to show those elements can be met. According to Defendants, McCoy’s complaint failed to meet one particular element of La. C.C. art. 2317.1: whether the hazard presented an unreasonable risk of harm. The Defendants succeeded in their motion, and the trial court dismissed the case via summary judgment.

heavy-duty-1192390-1024x681Grease is often used to make foods easy to remove from pans and baking sheets. It creates a slippery, smooth surface that allows most foods to slide right out of the pan. Unfortunately, when grease meets a wood floor, humans walking over can slide around as well. Sharon Tomlinson found this out the hard way as a waitress led her to a table in a Daisy Dukes restaurant in May of 2011. It is believed that airborne grease particles settled on the floor, causing Mrs. Tomlinson to fall and injure her knee when she stepped off of a commercial rug and onto the allegedly greasy floor.

Mrs. Tomlinson filed a lawsuit in 2012 against Daisy Dukes and their insurer, Landmark (“Defendants”), for the slip and fall accident. She also filed a spoliation claim alleging the restaurant failed to preserve relevant evidence, such as security camera footage. Denying liability, Daisy Dukes and Landmark moved for summary judgment on both claims, arguing that Mrs. Tomlinson could not produce evidence showing anything was on the floor that contributed to her accident. Louisiana state law puts the burden of proving three different factors, including this one, on the plaintiff (Mrs. Tomlinson). La. R.S. 9:2800.6. Thus, Defendants argued, there were no genuine issues of material fact, and they were entitled to summary judgment as a matter of law. The trial court agreed and found Mrs. Tomlinson did not meet her burden of proof. The trial court also granted summary judgment against Mrs. Tomlinson on her spoliation claim for the same reasons.

Summary judgment is appropriate when there is no issue of material fact from which a jury could find for the non-moving party. See Bilbe v. Foster, 176 So.3d 542 (La. Ct. App. 2015). Here, that means Defendants had to show there were no issues of material fact that could lead a jury to conclude Defendants were liable for the slip and fall injuries. Even without direct evidence, a plaintiff may satisfy their burden of proof with circumstantial evidence as long as it excludes every reasonable alternative cause for the accident, but the trial court found Mrs. Tomlinson could show neither direct or circumstantial evidence. The appellate court did not agree and reversed that decision.

63-photo-3_13_19-1024x683Under Louisiana law, an owner of a building is not necessarily responsible for all injuries resulting from any risk posed by the building. Owners are only responsible for those injuries caused by defective conditions, and courts have recognized that defendants have no general duty to protect against hazards that are “open and obvious.” The logic behind this approach is that when a risk is open and obvious to everyone, the probability of injury is low. As a result, the owner of the premises is not required to go to the trouble and expense of fixing the condition that could be easily avoided by prudent persons.

In 2013, Roger Butler was working at an International Paper mill in Dequincy, Louisiana. His supervisor instructed him to clear a board jam from a chipping machine. While clearing the board jam, Butler fell down a set of stairs and suffered serious injuries. Butler brought suit against the mill claiming that the mill’s negligence caused his injuries because the stairs he fell down was covered in wood chips and other debris. The mill filed a motion for summary judgment, asserting that the wood chips and debris on the stairs were an “open and obvious” hazard against which it had no duty to protect Butler. The district court granted the mill’s motion, finding that Butler did not show there was a genuine issue of material fact concerning the mill’s duty because the hazard that caused his injuries was open and obvious. Butler appealed to the U.S. Court of Appeals for the Fifth Circuit.

For a hazard to be considered “open and obvious,” it must be apparent to all who encounter the dangerous condition, and not just the plaintiff who is injured because of it. See Broussard v. State ex. Rel. Office of State Bldgs., 113 So. 3d 175, 183 (La. 2013). Butler argued that there was no evidence the chips on the stairs were an open and obvious hazard to anyone other than himself. However, based on the video evidence provided by International Paper, the wood chips and debris were so numerous and prominent that it would be considered open and obvious to a jury. The Fifth Circuit Court concluded that the video evidence was sufficient to establish an open and obvious hazard, and nothing further was required by International Paper to establish that fact.

modernist-hospital-facade-1223549-768x1024Generally, when an accident occurs on a property that is the result of the property owner’s negligence, it is presumed that the property owner is liable for the person’s injury. However, when liability does not exist, a motion for summary judgment is a procedural device that the defendant in a lawsuit can use to dismiss the plaintiff’s claim. Under Louisiana law, a motion for summary judgment will be granted if the pleadings and discovery show there is no genuine issue of material fact and that the party seeking summary judgment is entitled to judgment as a matter of law. See La. C.C.P. art. 966.

A trip-and-fall case offers an example of a defendant’s successful use of summary judgment. On October 11, 2007, James Dawson tripped and fell on the sidewalk near the entrance to Charity Hospital in New Orleans. He tripped on a crack in the sidewalk and suffered injuries as a result. Contending the State of Louisiana, as the owner of the hospital, was liable for failing to maintain the sidewalk, Dawson filed a lawsuit.

The State moved for a motion for summary judgment. In its motion, the State disputed Dawson’s allegation that it had authority over the sidewalk where his injuries occurred, arguing that without proof of authority, it could not be liable for Dawson’s injuries. See La. R.S. 9:2800. The State supported its motion with affidavits from Frederick L. Wetekamm, an engineer for the Louisiana Department of Transportation and Development and Robert J. Arnould, a maintenance supervisor for Charity Hospital. Wetekamm explained that the State was only responsible for maintaining its right-of-way on Tulane Avenue which began two blocks beyond the hospital. Arnold stated that Charity Hospital maintenance staff conducted no activities affecting the condition of the sidewalk in front of the hospital.

57-Email-3-26-19-1024x633Imagine shopping for flooring on a Saturday.  The store is crowded and the samples of luxury vinyl tile are starting to all look the same.  The flooring store has graciously placed a bench in the showroom. Much to everyone’s embarrassment, however, the bench collapses under the weight of a patron.  Who is responsible for the injuries both to pride and physical body in this situation? For one Gretna, Louisiana woman, a lack of evidence on the cause of the malfunction caused her lawsuit to collapse as well.  

Schirelle Wiltz was at the Gretna Floor & Decor when the bench she rested upon suddenly collapsed.  The bench had been in the store without incident for two years prior to Ms. Wiltz’s accident. The bench apparently had a hidden manufacturing defect in the metal frame unbeknownst to Floor & Decor.  Ms. Wiltz filed a lawsuit in the Twenty-Fourth Judicial District Court in the Parish of Jefferson alleging that Floor & Decor was negligent in failing to discover the bench’s defect and in failing to warn that the bench had a 300-pound weight limit.  The District Court dismissed the lawsuit, and Ms. Wiltz appealed to the Louisiana Fifth Circuit Court of Appeal.

In a negligence case involving a dangerous defect, the injured party must show the dangerous item was in the custodian’s control, had a defect possessing an unreasonable risk of harm which caused damage, and the custodian knew or should have known about the defect.  See La. C.C. art. 2317.1.  In a case involving a merchant, an injured party must prove the merchant’s premises contained a foreseeable, unreasonable risk of harm, merchant knew or should have known of the danger, and merchant failed to exercise reasonable care.  See Thomas v. Caesars Entm’t Operating Co., 106 So.3d 1279 (La. Ct. App. 2013).  An injured party must also prove the standard elements of a negligence case.  Collins v. Home Depot, U.S.A., Inc., 182 So.3d 324 (La. Ct. App. 2015).

link-30-email-3-26-19-1024x683Slip and fall cases seem to go with grocery stores like peanut butter goes with jelly.  With all that slick inventory, it is surprising there are not more accidents. Who is responsible for injuries from these accidents?  As with many legal issues, it is complicated. For one man out of Slidell, a lack of evidence caused his case to fall flat and release the grocery store from all liability.        

 John Nash slipped on some rice and fell one August day while shopping at Rouse’s Market in Slidell.   Approximately five to ten minutes prior to the fall, a Rouse’s Market’s floor maintenance employee swept the aisle where Mr. Nash fell. A vendor stocking that same aisle verified the floor was swept at that time.  A floor manager’s inspection report confirms that the aisle was inspected minutes before the incident and no substances were discovered on the floor. Yet Mr. Nash filed a lawsuit against the supermarket. The lawsuit, however, was dismissed by the Judicial District Court for the Parish of St. Tammany.   The District Court agreed with Rouse’s Market’s defense that the store did not have actual or constructive notice of the condition causing the fall. Mr. Nash appealed to the Louisiana First Circuit Court of Appeal.

In Louisiana, a merchant owes a duty to persons using their premises to keep the aisles, floors, passages, in a reasonably safe condition.  La. R.S. 9:2800.6(A).  In addition, an injured party must prove that the condition causing the injury posed a foreseeable and unreasonable risk of harm, and the merchant had actual or constructive notice of the danger and failed to exercise care in removing the danger.  See Mills v. Cyntreniks Plaza LLC, 182 So.3d 80 (La. Ct. App. 2015).   In the absence of actual notice of an unreasonably dangerous condition, an injured party must show the dangerous condition existed for some period of time before the fall and that such time was sufficient to place the merchant on notice of its existence. See Clark v. J-H-J., Inc.,  136 So.3d 815 (La. Ct. App. 2013).   There is not an explicit rule on how much time is a sufficient amount of time to have put the merchant on notice; instead, the facts of each case are weighed.  

image-2-1024x683While running errands all day, to the cleaners and the grocery store, the last thing on one’s mind is getting hurt along the way. Proving fault for an injury can sometimes be more of a pain than the injury itself. Collecting evidence like pictures or eye witness reports is the last thing you want to do after suffering a fall, but to prove your case in court, it is necessary. Failure to do so can result in not only the pain from your injury but also the bill.

In Kenner, Louisiana, Mary Upton went to get groceries with her husband. She entered Rouse’s grocery store after seeing an advertisement for the sale of watermelons. She walked around the display to find a good watermelon. As she stepped over to pick one up, she unknowingly placed her foot into the pallet openings under the box. She turned to show her husband the watermelon she had picked, but he told her he did not want that watermelon. Mrs. Upton turned back to return the watermelon to the box and as she stepped away from the display, she twisted her foot within the pallet and fell.

Mrs. Upton sued for damages of her injury. Rouse’s, along with their insurer Liberty Mutual, motioned for summary judgment on the basis that Mrs. Upton did not meet her burden of proof or provide any evidence that the grocery store acted without reasonable care. The trial court granted the motion and Mrs. Upton appealed. The Court of Appeal affirmed the summary judgment, effectively ending Mrs. Upton’s case.