Articles Posted in Slip and Fall Injuries

women-walking-on-side-street-1119078-1024x683How often do you walk along a sidewalk without paying attention to where you’re walking? Next time you’re out strolling, take notice of where you step! An obvious danger could prevent you from recovering for any injuries, as a local Louisiana woman recently discovered.

On July 18, 2012, Anita Melancon was walking on a sidewalk at the Perkins Rowe mixed-use shopping center in Baton Rouge when she tripped and fell, sustaining injuries. The sidewalk in question passed over a driveway ramp, creating a curb that varied in height. The sidewalk’s design required that pedestrians step down onto the ramp before stepping back up onto the sidewalk. Melancon tripped as she was stepping back up onto the sidewalk. 

After filing a lawsuit for damages against Perkins Rowe and its insurer, Aspen Specialty Insurance Company (Aspen), the court granted Aspen’s motion for summary judgment, dismissing Melancon’s lawsuit. Aspen asserted that because the varying heights of the sidewalk curb were an open and obvious risk, Perkins Rowe did not have a duty to protect pedestrians from the danger created by the curb. Melancon disputed that the danger was “open and obvious” and appealed the dismissal of the lawsuit. 

orange-and-gray-painted-roof-under-cloudy-347152-1024x684There’s a general understanding between a buyer and a seller that the seller will provide the good in an acceptable condition for a buyer. If the product is faulty, then the general understanding is that the seller will take responsibility for making things right as soon as they can. This is even solidified by warranties. What happens, then, when a construction company sells a New Orleans resident a roof that leaks so much it leads to a man slipping and falling? Is the danger created by the leak so obvious that the construction company shouldn’t be held liable for the injury?

This problem arose when Magnolia Roofing and Exteriors (“Magnolia”) installed a new roof at the home of Tammy Stewart. Ms. Stewart was never completely happy with the quality of the roof when it was installed in September 2011, but significant leaks didn’t appear until January 2013, a few months after Hurricane Isaac wrecked New Orleans. The leaks were so bad that water came through her second-floor attic, through the ceiling, and trickled down the chandelier in her foyer. Magnolia’s parent company, Sears Home Improvement Products, sent repairmen to look at the damage a few days later. Ms. Stewart was at work so her friend, Glenn Jones, let them in to the attic to see where the leak was. The attic was consistently described as “unfinished, unlit, [and] wet.” Since the attic was unfinished and without light, Mr. Jones was standing on a crossbeam between the sheetrock and using his cell phone for light. When he turned around to show the worker where the leak was, he slipped and fell 16 feet through the sheetrock into the first-floor foyer. Mr. Jones sustained multiple serious injuries as a result and brought a case of negligence against Ms. Stewart and Magnolia.

The core issue of this case before the Louisiana Fourth Circuit Court of Appeals was the open and obvious doctrine. If it is plainly clear to everyone that a danger exists, then a defendant is not liable for an injury that occurs. The defendant must show that the danger is open and obvious to benefit from this legal doctrine. See Scarberry v. Entergy Corporation, et al., N.V., 136 So.3d 204 (La. Ct. App. 2014). Magnolia claimed the wet crossbeams were a clear and obvious danger; the trial court agreed with them on summary judgment and found them not liable. The trial court explicitly limited the entire review of Magnolia’s petition to this one issue, so the Fourth Circuit did the same. See La. C.C.P. art. 2164. Mr. Jones refuted this claim by saying that the darkness of the attic was the obvious danger, not the wetness of the beams, and the darkness did not cause the injury, so Magnolia could be liable.

close-up-photo-of-person-playing-piano-1246437-1024x683A night at a piano bar in New Orleans is usually a relaxing and enjoyable evening. Yet, the night can take a whole step in the opposite direction if you fall down the front step of the building on your way out. What happens to your personal injury case, however, when there’s doubt about whether or not the piano bar destroyed evidence you could have used against them? Is it appropriate for a trial court to determine whether or not the evidence was intentionally destroyed?

This was Mary Fiveash’s fate when she left Pat O’Brien’s piano bar on January 14, 2014. Ms. Fiveash fell down a tiled step outside Pat O’Brien’s, resulting in multiple injuries. The most severe injury was a spiral break of the humerus bone in her right arm. She alleged that the step’s poor condition and the bar’s lack of adequate maintenance of the step, caused her fall and, therefore, her injury. Where the Louisiana Fourth Circuit Court of Appeal picks up the story is in what happened after Ms. Fiveash filed her initial lawsuit against Pat O’Brien’s and their insurer Evanston Insurance Company. 

Ms. Fiveash filed her initial case on July 11, 2014, and on September 12, 2014, her and her lawyers emailed Pat O’Brien’s to request that a construction expert examine the step for use of his assessment at trial. On October 24, 2014, they agreed for an inspection to take place on November 24. No more than a day after this agreement, a trash can carried up the step at Pat O’Brien’s damaged the step’s threshold, causing the bar to deem it an immediate safety risk and needing repair before the inspection. They notified Ms. Fiveash of this and said the changes would still leave the step in “identical condition” from when her injury occurred. Ms. Fiveash agreed to this only because of the “identical condition” guarantee. When the inspection took place on November 24, it was clear there had been a significant improvement in the step’s condition, leading Ms. Fiveash to allege foul play against the bar. Specifically, she claimed they intentionally altered the step to harm her case at trial, leaving her only with the pictures taken of the step’s initial condition. 

blur-dusk-evening-gas-station-399635-1024x681It is commonly thought that when an injury occurs, a harmed individual can recover monetary damages for the injuries he or she sustained.  However, if a risk is seen as “open and obvious,” there is a duty on individuals to exercise ordinary care. In some cases, individuals who fail to do this are prevented from recovery even if they are injured.

As she got older, Nancy Morel had difficulties walking and began using a cane after her 2001 knee replacements.  When at a Shell gas station in Metairie, Louisiana, on October 25, 2014, Morel noticed some hoses next to the curb in the entrance of the gas station’s door entrance. Morel walked in the store to pay for her gas. Upon exiting the store, she attempted to move the hoses with her cane, but ended up catching her right foot in the hoses and falling.  Morel brought a lawsuit against the Shell’s station owner, Cheema Properties LLC and Cheema Three LLC (“defendants”) for her injuries sustained in the fall.

The defendants filed a motion for summary judgment, putting forth an argument before the court that the hoses were “open, obvious, and plainly visible” and that they were not an unreasonable risk of harm to an individual exercising ordinary care.  Morel countered by stating that a summary judgment motion should not be granted because there were facts about the situation which her and the defendants disagreed upon, the gas station video surveillance footage was not preserved even after a request by Morel’s attorney to do so, and there was a dispute about the supervision of the employee who left the hoses by the curb.  The district court relied on Morel’s own deposition, and granted the summary judgment motion after finding that the hoses were open and obvious.

grocery-cart-with-item-1005638-768x1024Slip and Fall lawsuits commonly arise in the grocery store or restaurant setting.  And in such cases, Louisiana’s statute on merchant liability apprises merchants of how they could be found liable for any resulting injuries.  What happens however when a person falls and injures themselves in a commercial but non-merchant location? Are these lawsuits analyzed under general negligence law?  A recent case involving a hospital in Lake Charles provided an entirely separate standard.           

Ronnaesa Reider was visiting Christus St. Patrick Hospital in Lake Charles, Louisiana when she slipped on an unknown substance and sustained a knee injury.   Just prior to Ms. Reider’s fall, Jamon Thomas, an employee of Hospital Housekeeping Systems, LLC (“HHS”), used a scrubber machine on the floor where Ms. Reider fell.  Ms. Reider alleged that the machine left water and cleaning fluid on the floor causing Ms. Reider’s fall. Mr. Thomas testified that he noticed a wet streak on the floor and concluded his machine must have failed to dry up the liquid.  However, an unidentified person also stepped on the alleged wet spot just five seconds prior to Ms. Reider and he did not fall.   

Ms. Reider filed a lawsuit against HHS and the Hospital alleging negligence in allowing the liquid to remain on the floor and for failing to warn about the liquid’s presence. Ms. Reider filed a motion for summary judgment against HHS asserting that HHS was completely at fault for the fall.  In support, she included video surveillance showing the scrubber machine in the area just prior to her fall. She also included her own deposition testimony as well as Mr. Thomas’ deposition. In response, HHS asserted the video only showed a clean, clear hallway and that there were inconsistencies in all of the depositions.  Specifically, portions of Mr. Thomas’ deposition asserted there was no liquid at all on the floor. Ms. Reider further provided conflicting accounts of the amount of water on the floor: ranging from a few droplets to a five foot streak.  

person-grilling-sausage-and-meat-1857732-1-1024x683The interests of justice are best served when the evidence in a lawsuit is new. This is because any potential witnesses can corroborate or deny evidence presented at trial with a fresh memory of the events or documents. Personal injury cases in Louisiana follow this principle with a one year deadline called the peremptory exception of prescription. A recent lawsuit between New Orleans family members demonstrated the value of having an excellent attorney who knows when these deadlines begin to run.

On April 20, 2014, Cynthia Dent attended an Easter party at Genevieve Willis Dent’s home in New Orleans. While walking in the backyard, Ms. Dent stepped into a hole. This hole was covered by outdoor carpet and was not visible. As a result of the accident, Cynthia Dent experienced pain and swelling in her left foot and ankle. Two days later, on April 22, 2014, Cynthia Dent went to the doctor for x-rays and eventually found out that she broke her left foot.

One year and three days after the original accident and one year and one day after her diagnosis, on April 23, 2015, Ms. Dent filed a lawsuit against Genevieve Dent and Genevieve’s home insurance company, State Farm Fire and Casualty Company. In response, Genevieve Dent and her insurance carrier filed a peremptory exception of prescription. This peremptory exception of prescription is used by defendants for a variety of reasons, which basically argues that there is no legal remedy for the plaintiff’s alleged injury because the lawsuit was brought too late. In Genevieve Dent’s case, she raised the peremptory exception of prescription because Cynthia Dent filed her lawsuit past the one year deadline. The Trial Court held a hearing on the peremptory exception of prescription and agreed with Genevieve’s argument. The lawsuit was dismissed. Cynthia Dent then appealed.

two-person-doing-surgery-inside-room-1250655-1024x683Workers’ compensation programs may provide you with some relief for an injury. However, it is important to note that depending on your recovery and other factors, you could be taken off such programs. This is because legislators want people to work if they are able. Though many people who depend on workers’ compensation programs truly deserve it, some people abuse the system. 

Lisa Tassin was a registered nurse at Touro Infirmary (“Touro”). Unfortunately, while moving an operating room table, she fell and landed on her tailbone, causing injuries to her lower back. Prior to this accident, Tassin was involved in two car accidents that resulted in chronic neck pain. Because of her work-related accident, she received temporary total disability benefits (“TTDs”) from Touro. 

Tassin was treated and examined by a slew of doctors. Though the doctors agreed that Tassin’s pain was genuine, they disagreed whether the origin of her pain was the work-related injury or her prior car accidents. Five years after the accident, Tassin filed a Disputed Claim for Compensation against Touro because Touro reduced her TTDs to supplemental earnings benefits (“SEBs”). Touro claimed that Tassin was no longer disabled and could earn wages equal to those before her work-related injury. The matter was taken to a workers’ compensation judge who found that Tassin was no longer entitled to TTDs because she was unable to show that she was incapable of any employment. Furthermore, the judge ruled that she was also not entitled to SEBs because she could work in other health care positions if she had not let her nursing license lapse. 

sign-slippery-wet-caution-4341-1024x683Slip and fall cases can have a bad reputation. You know the scenario: Person A slips while on Person B’s floor and sues Person B for everything he has. Oftentimes in this scenario, Person A barely got hurt and may have been able to take steps to have helped prevent the injury. While there are some cases like this that make us ask why people are even allowed to sue in this scenario, there are also cases where people get seriously injured and need to be made whole again. These cases also show that those who allow others onto their property or premises have different responsibilities to ensure that the conditions are reasonably safe. Maintaining these responsibilities is essential so that people can go to these places with the expectation that they can enjoy the premises without worrying if the conditions are hazardous. One example is a slip and fall case that was filed in the 22nd Judicial District Court in Washington Parish, Louisiana.

Grady Wayne Bryant was in a Popeye’s parking lot when he slipped on grease while stepping off the curb. He and his wife filed a lawsuit against the restaurant’s company, Premium Food Concepts, Inc. and its insurer, State Farm Fire and Casualty Company. The company denied the Bryant’s allegations and filed a motion for summary judgment, claiming that the Bryants could not show that Popeye’s created the grease that caused the accident or that Popeye’s had constructive knowledge of the grease. The District Court decided that the Bryants could not meet their burden of proof under the Louisiana Merchant Liability Statute and granted the motion for summary judgment. The Bryants appealed to the Court of Appeal for the First Circuit.

What is a motion for summary judgment? When a party files a motion for summary judgment, they are asking for the case to be decided as a matter of law, rather than on the merits. La. C.C.P. art. 966. The party that files the motion—called the mover—does not have to disprove all the elements of the other party’s claim. Instead, the mover just has to show that at least one element is factually weak. Then the non-moving party has the burden to show that the element actually has factual support. If the non-moving party cannot meet this burden, then there is no genuine issue of material fact and summary judgment is granted.

close-up-court-courthouse-hammer-534204-1024x569After a hard fought jury trial, an appeal can be expected. But, what cannot be anticipated is a transcribing error by the court that renders the judgment as invalid and makes any appeal impossible. Excellent attorneys can catch errors by other parties and avoid multiple extra steps before a lawsuit can be resolved. That was the case here as mismatching damage award classification labels extended a lawsuit well beyond its anticipated end.

Willie Brown, Jr., was a customer at the Silver’s Casino in Breaux Bridge. After a power outage at the casino and at the direction of an employee of the Casino, Mr. Brown tripped over a sidewalk while he was entering the premises. Mr. Brown suffered injuries to his right knee, left shoulder, and also his head.

Mr. Brown saw a doctor for his injuries and was diagnosed with a cervical disc issue. The doctor recommended surgery to repair the injuries and estimated that the surgery would cost $85,000. Mr. Brown also saw a doctor at the request of Silver’s Casino and received a much lower medical cost estimate. Silver’s doctor suggested that Mr. Brown did not need surgery and instead only needed an injection for pain that would cost $1,000.

branding-buy-city-264636-1024x683Injuries arise in many unexpected ways and locations, even from a trip to the local grocery store. Sometimes this occurs due to a patron’s own clumsiness. Regardless, a grocery store may still be responsible for injuries if the store was negligent, or did not take reasonable actions to fix a known danger. For one Gretna woman, however, the Louisiana Fifth Circuit Court of Appeal affirmed a ruling by the 24th Judicial District Court Parish of Jefferson holding that the grocery store had no responsibility for her injuries.

Around 5:00 P.M. one evening in May, Tami Luft headed to the local Winn-Dixie on Belle Chasse Highway and Wall Boulevard to purchase chips and bread. After she picked up her chips, Ms. Luft made her way to the bread section when she suddenly tripped on a piece of plastic that supported a bottom shelf in the chip aisle. The store manager, Mr. Lollis, helped Ms. Luft up, she finished her shopping, and then she went home. Nearly a year later in April, Ms. Luft filed a lawsuit against Winn-Dixie, claiming negligence for creating the hazardous condition that caused her injuries. The district court ruled in favor of Winn-Dixie, so Ms. Luft appealed to the Court of Appeal which affirmed the ruling.

To sue for negligence resulting from injury on a merchant’s property, Ms. Luft had to prove three elements under Louisiana law. La. R.S.9:2800.6(B). First, there had to be “an unreasonable risk of harm” that was also “reasonably foreseeable.” Second, Winn-Dixie had to either have created or “had actual or constructive notice of the condition which caused the damage” before the accident occurred. Third, Winn-Dixie had to fail in exercising “reasonable care.” Here, Ms. Luft had the burden of proof, meaning that to win her case she needed to prove each element. For Winn-Dixie to win the case, it only needed to refute one element. The element Winn-Dixie focused on was the second, claiming that the store neither created nor had actual or constructive notice of the danger posed to Ms. Luft by the plastic support.