Slip and Fall Injuries

March 17, 2017

Court of Appeal Allows Tenant to Continue Pursuit of Lawsuit Against Landlords in a Personal Injury Dispute

chairs-2-1489343-1024x768 In Louisiana, the law allows a person to seek financial compensation against another person who has caused his or her injuries or failed to prevent the injuries if such a duty existed. A person has a responsibility not to harm others by their actions or with things in their possession. A Louisiana landlord has a special duty to his or her tenants to provide a safe building and will be held responsible if a tenant is injured as a result of the Landlord’s failure to repair a defect in the building that he or she knew about or should have known about. The following case illustrates some of these issues.

Jennifer Hooper was injured on the porch of her rented apartment when her crutches got stuck in a small, preexisting hole. As it turns out, the floorboards were rotten and Ms. Hooper fell right through the porch, fracturing her right femoral neck. Ms. Hooper sued her landlords, Val and Mary Brown, and their insurance company, Encompass Property and Casualty Company. The Browns attempted to terminate the case before it started by filing what is called a Motion for Summary Judgment. By filing this motion, the Browns asked the Trial Court to decide the case in their favor, without going through the formal development of the case. This would have ended the case before a jury had the opportunity to hear it. The Trial Court denied the motion, however, because there was a dispute as to whether the hole that Ms. Hooper stepped in was “open and obvious to all.” The Browns appealed the denial of the motion to the Louisiana Fourth Circuit Court of Appeal.

Ms. Hooper signed an apartment lease with the Browns in January 2011 and renewed the lease in 2012. Upon moving into the apartment, the Browns alerted Ms. Hooper to the hole in one of the porch floor boards. Several times over the course of her tenancy, the Browns promised to fix the hole but never did. Ms. Hooper argued that the Browns were responsible for her injuries by failing to adequately inspect and maintain the premises and warn her of the unreasonably dangerous condition. The Browns averred that the hole in the porch floor was open and obvious to all and thus, they had no duty to warn Ms. Hooper of the hole. Effectively, the Browns argued that Ms. Hooper should have seen the hole and avoided it all on her own.

March 14, 2017

Slip and Fall Sidewalk Accident Liability Rests With Lessee Due to Lack of Notice to Lessor

by Berniard Law Firm

sidewalk-cross-1177206-1024x681 Each year, thousands of people suffer from slip and fall accidents. From a legal perspective, it can be difficult to determine who, if anyone, is at fault. For example, in some slip and fall cases, a property owner can be held liable for the other party’s injuries. Property owners owe a duty of care to persons who use their premises. Owners are expected to keep the grounds in a reasonably safe condition.

The following case provides a good illustration of some of the issues that can arise when litigating a slip and fall accident. Reba Campbell suffered injuries after she slipped and fell on a mildewed area of sidewalk adjacent to the Evangeline Parish Medicaid Office. Mrs. Campbell and her husband (Plaintiffs) filed suit against the Evangeline Parish Police Jury, as owners of the Medicaid Office building, and the State of Louisiana, Department of Health and Hospitals, as lessee of the building. The State interjected a cross-claim against the Police Jury that called into question their liability as leaseholders. The State believed that the Police Jury should be held liable because it owned the property on which the hospital was located. The Police Jury countered that the State had the responsibility for maintaining the sidewalks in front of the building.

Plaintiffs sought a declaratory judgment from the Trial Court and the Trial Court held that the State was liable because it failed to put the Police Jury on notice of the problems with the sidewalk. The Trial Court granted the Police Jury’s oral motion for judgment and dismissed the Police Jury from the lawsuit.

February 18, 2017

Slip and Fall Liability and Comparative Fault in Louisiana Grocery Store Case

by Berniard Law Firm

supermarket-1575072-1024x692 If you slip and fall on a pile of food left on the floor of a supermarket and evidence shows that an employee observed the hazard a minute earlier but failed to warn you, it may seem obvious that the store was at fault and owes you full compensation for your injuries. However, as Sheneatha Stevens of Lake Charles, Louisiana learned, the situation may not be so clear cut. The amount of compensation you are awarded will depend on whether you had knowledge of the hazard at the time you were injured, personal characteristics or distractions in the environment affecting your ability to avoid the hazard, any risks you took and why you took them, and whether the trial court finds the evidence you present on these factors to be convincing. An aspect of the situation that may not seem important to you can wind up having a major effect on your credibility and, ultimately, on the amount of damages awarded to you, as Ms. Stevens learned. Her case shows why it is important to have an experienced attorney representing you when you have been injured in a retail store and both sides have strong evidence supporting their positions.

On January 5, 2012, Sheneatha Stevens slipped and fell in a pile of rice that had spilled onto the floor near a drink cooler she was walking toward in the Market Basket supermarket in Lake Charles, Louisiana. She was taken by ambulance to Lake Charles Memorial Hospital, released and underwent chiropractic treatment between February 2012 and April 2012. Her medical exam showed no tenderness, just soreness and bruising that the trial court believed was from an earlier injury.

Ms. Stevens filed suit against Market Basket in December 2012.The trial court evidence included a surveillance video that showed her entering the store while talking on her cell phone, walking straight toward the drink cooler, slipping but not falling on the spilled rice near the cooler, pulling a drink out of the cooler and, about 22 seconds later, slipping and falling in the rice as she retraced her steps down the same aisle and headed toward the store entrance. Evidence also included Ms. Stevens’ testimony that she had filed more than 20 personal injury claims since 2003, as well as a finding that a Market Basket employee had seen the spilled rice less than a minute before Ms. Stevens entered the store but failed to warn her about it.

December 31, 2016

New Orleans Essence Festival Production Company Appeals Court’s Denial of Coverage Decision

by Berniard Law Firm

Putting on a festival at the New Orleans Superdome is a lot of work. One vital part of that work is to confirm that the insurance policy actually covers the activities and location of the festival. Festival Productions, Inc. – New Orleans (“FPINO”) learned this lesson the costly and hard way. The Louisiana Fourth Circuit Court of Appeal’s decision shows the gaping hole in FPINO’s coverage that was entirely avoidable.

In July 2005, Deborah Daniels slipped and fell on an unknown substance at the New Orleans Superdome when she was attending the Essence Festival. A year later, she filed a lawsuit in Orleans Parish alleging she suffered injuries from the fall, naming a host of defendants including FPINO, the producer of the festival, and its insurer, Maryland Casualty Company (“MCC”).

MCC did not believe that it was required to indemnify or defend FPINO in the suit and so it filed a motion for summary judgment against FPINO. MCC argued that FPINO’s policy did not cover damages sustained by the plaintiff because the Superdome was not a designated premises covered under the policy. FPINO filed a cross-claim against MCC and Essence, alleging that as an insured under the policy, MCC owed FPINO a defense and indemnity, and MCC refused to do so.

December 26, 2016

“A Matter Adjudged”: Court Discusses How Res Judicata Prevents Parties From Relitigating Issues

by Berniard Law Firm

curb-1-1571125 Our court system includes rules that aim to promote court efficiency. Some of the rules may sound intimidating, but having a good attorney, one who is able to build a strong strategy and with strong knowledge of the rules, makes the necessary difference. One such rule is called res judicata – Latin for “a matter judged.” Unfortunately, Mr. Springer, a resident of Nannie O’Neal Senior Apartments on Oneal Street in DeRidder, Louisiana recently lost his case because of failing to understand how this rule applied.

When a party asserts that res judicata applies, the goal is to prevent the litigation of issues that have already been adjudicated in a previous lawsuit between the same parties. See Atheron v. Rosteet Law Firm, 137 So.3d 1246 (La. Ct. App. 2014). In other words, it prevents the opposing party from getting a second chance in court. The rationale for the rule are logical, after all it would be strange and unreasonable to allow a plaintiff to continuously sue the same defendant, on the same matter, until the plaintiff receives a favorable decision.

In Mr. Springer’s case, Mr. Springer first filed a complaint with a state court in Beauregard and MAC-RE. Beauregard and MAC-RE own and manage Nannie O’Neal Senior Apartments respectively. Mr. Springer is handicapped. He alleged that he tripped and fell over a curb in the apartment building’s parking lot, and that the apartment complex did not have the required access for the handicapped. He also alleged that the owner and the managing company were aware of this, but failed to address the situation.

November 29, 2016

Court Sets High Bar for Burden Of Proof For Slip and Fall Victim In Avondale

by Berniard Law Firm

parking-space-1441053-1-1-1024x768 Not all slip and fall cases are successful as the burden of proof on the victim can be high in Louisiana. In a recent opinion out of the Louisiana Fifth Circuit Court of Appeals the trial court’s decision to award $20,000 to Carolyn Bennette, who slipped and fell at the Brother’s convenience store and gas station in Avondale, Louisiana was reversed. As discussed below, the appellate court stated that the defendants were correct in arguing that the trial court held the defendants to an improper burden of proof. In order to prove a slip and fall claim, a victim (here, the Plaintiff Ms. Bennette) has the burden to produce direct evidence supporting her claim, and the Appellate Court found that Ms. Bennette failed to prove three aspects of the claim.

On October 7, 2010, Ms. Bennette, after buying lottery tickets, walked through the parking lot towards her car and slipped on a piece of wood that was protruding from an expansion joint in the concrete at the Brother’s Avondale convenience store. The piece of wood lodged into her shoe causing her to fall and break her elbow, among other injuries. Ms. Bennette alleged that Brother’s was negligent in failing to maintain its property in a reasonably safe condition, failing to warn customers about the allegedly dangerous condition, and allowed an unsafe and dangerous condition to exist after proper notice and/or constructive notice of same. The jury at the trial, where Ms. Bennette was the only witness, rendered judgment in Ms. Bennette’s favor to the tune of $20,000.

A store owner is not liable for every accident that occurs on the premises. See Harrison v. Horseshoe Entertainment, 36 (La. App. 2 Cir. 8/14/02); 823 So.2d 1124. Slip and fall claims are governed, in Louisiana, by La. R.S. 9:2800.6, the statute explaining liability of merchants for “slip and fall” claims by customers on store premises. Importantly, while Louisiana law requires merchants to exercise reasonable care to protect persons who enter the establishment, to keep the premises safe from unreasonable risks of harm, and to warn of known dangers, the merchant need not prove anything to win the case. It is up to the injured person who is bringing the suit to produce evidence in support of the claim. The victim must prove the elements of their case, specifically: 1) that the merchant gave a reasonable effort to keep the premises free of any hazardous condition which may reasonably give rise to damage, 2) that there was an unreasonable risk of harm that was reasonably foreseeable, 3) that the merchant either created or had actual or constructive notice of the condition prior to the accident, and 4) that the merchant failed to exercise reasonable care. Proving all of these elements can be challenging for slip and fall victims, as we saw in this case.

November 22, 2016

Black Friday Shopper Who Slipped on Fallen Sign Has Case Dismissed on Appeal

by Berniard Law Firm

crowd shopping

Sometimes going shopping on Black Friday can be dangerous, as Sylvia Scott learned when she went shopping at the Dillard’s Department Store at Esplanade Mall in Kenner, Louisiana and slipped on a plastic sign that had fallen to the floor. A business might be liable for such a misfortune if they are aware of a hazard and have not taken the proper steps to remedy the hazard before a customer gets injured. However, sometimes an accident is just an unfortunate accident, and that is why it is important for all parties, whether they are an injured customer or a business worried about facing a lawsuit, to seek out excellent lawyers to represent their interests when someone gets hurt. The following case out of Jefferson Parish discusses the burdens Louisiana Courts place upon plaintiffs to show that their accident was no accident at all.

On the morning of the incident, Ms. Scott went to Dillard’s to take advantage of the store’s Black Friday deals. She entered the store at 8:30 a.m., just a half hour after the store had opened, and slipped and fell on a “cling sign” that had fallen off the door. Ms. Scott did not accept medical attention on the scene, but eventually needed pain management, physical therapy, and surgery for the injuries she suffered due to the fall. It was at that point that Ms. Scott sued Dillard’s for her injuries, alleging that Dillard’s did not exercise reasonable care in inspecting the premises and was therefore liable for her injuries.

In Louisiana, the plaintiff bears the initial burden of proving each element of a slip-and-fall claim. See La. R.S. 9:2800.6(B). A merchant owes a duty of care to keep the premises in a reasonably safe condition, including the aisles, passageways, and floors. In order for the merchant to be liable for an injury caused by a slip-and-fall, several elements must be established. First, the condition must have presented an unreasonable risk of harm and the risk must have been reasonably foreseeable. Second, the merchant must have created the condition or had actual or constructive notice of it, prior to the accident occurring. Finally, the merchant must have failed to take reasonable steps to remedy the condition. Essentially, the plaintiff must show that the condition was dangerous and it was foreseeable that it could cause an injury. The merchant must have either caused the condition, known of its existence, or should have been aware of its existence if properly monitoring the store. Finally, the merchant must have neglected to take action to fix the condition or cordon off the area where it existed so that customers are reasonably protected from injury. The plaintiff must establish all of these elements, and failing to establish a single element will be fatal to the claim.

November 16, 2016

Slidell Hospital Not at Fault in Lawsuit for Independent Contractor Worker’s Alleged Negligence

by Berniard Law Firm

hospital-s-corridor-1631146-1024x765 If your unlucky enough to slip and fall at a business the first person you would think about suing is the business itself. However, businesses today contract out many aspects of cleaning and other maintenance and in doing so also alleviate their responsibility for negligence on their property. The following case out of St. Tammany Parish discusses the concept of who might be at fault for a slip and fall when the cleaning of floors is contracted out to another party.

In 2005, Joy Smith was visiting a friend who was a patient at Northshore Regional Medical Center (Hospital) in Sidell, Louisiana. As Ms. Smith was walking down the hall, she slipped and fell in some water near where the floors had just been buffed. Ms. Smith filed a lawsuit against the Hospital alleging they were negligent in failing to properly warn her of the hazard that caused her fall. The Hospital answered the lawsuit and filed a third party demand, adding as third party defendants Hospital Housekeeping Systems (HHS), and the employee of HHS who had just buffed the floor. The Hospital had a contractual relationship with HHS to provide the Hospital with housekeeping services for the hospital.

The Hospital filed a motion for summary judgment in the lower court seeking to have Ms. Smith’s claim against the hospital dismissed. The Hospital alleged that it was merely the property owner, and it should not be held liable for conditions created by HHS as they contracted with them to clean the floors. See LSA-C.C.P. art. 969. Within the contractual obligations of the Hospital and HHS, HHS was responsible for maintaining the area where Ms. Smith had fell. The lower court agreed, and granted the summary judgment.

October 27, 2016

Louisiana Court of Appeal Discusses High Burden of Overturning a Jury’s Findings

by Berniard Law Firm

glass-2-1543598-1-1024x683 Often in a discussion of tort law, the determination of whether an environment is reasonably safe is left up to the trier of fact in a particular case. Often, the trier of fact is a jury who listens to the evidence of the case and returns a verdict about the cause of the plaintiff’s injuries. But how much discretion does a trier of fact actually have to determine the standard of reasonableness and whether or not the defendant breached this standard? A case from the Louisiana Third Circuit Court of Appeal discusses the standards by which an appellate tribunal must review a jury’s finding when the factual basis for the jury’s finding is called into question.

On March 16, 2006, Chermaine Dibartolo, a cosmetology student, was cleaning the “glass room”; a roughly eight foot, nine inch by ten foot, seven-inch space at Stage One-The Hair School in Lake Charles, Louisiana. Ms. Dibartolo tripped over her own bag and was injured. At trial, the Ms. Dibartolo asserted that Stage One owed her a duty of care against such injuries and that the Stage One breached this duty. Ms. Dibartolo argued that it was typical for multiple students to be working in the small space of the glass room with their belongings on the floor, thereby creating a dangerous environment that led to her injury. Unfortunately for Ms. Dibartolo, the jury disagreed and returned a verdict in favor of Stage One.

Ms. Dibartolo moved for a judgment notwithstanding the verdict (a motion seeking the trial judge to reverse the jury’s findings and reverse or amend the verdict) or a new trial. Her motion was denied. She then appealed on three grounds, arguing that: (1) the jury erroneously found no defect in the glass room itself; (2) the jury erroneously concluded that Stage One did not know that there was an unreasonable risk of harm; and (3) the jury erroneously concluded that the defect she alleged existed in the glass room did not cause her to fall.

October 9, 2016

Clean Up On Aisle 5: West Monroe Grocery Store Liable for Shopper’s Trip-and-Fall

by Berniard Law Firm

Would you expect a routine trip to your local grocery store to end with a herniated disc and a possible need for surgery? Probably not. Trips to the grocery store are often without incident. However, people do get hurt sometimes, either from their own clumsiness or — as the Louisiana Court of Appeal, Second Circuit, found in a recent case — by the negligence of the store.

Donna Guerrero (the “Plaintiff”) was shopping at Super 1 Foods (the “Defendant”) in West Monroe one evening in January of 2010. Looking upward on the shelves for coffee, the Plaintiff tripped and fell over a 10-inch-tall rectangular box on the floor, which had been placed there for restocking purposes. The Plaintiff suffered from a T1-2 herniated disc, she continued to suffer from pain thereafter, and there is a possibility that surgery may be required in the future if the injury continues to worsen. The Plaintiff filed a lawsuit against the Defendant. The trial court found that the Defendant was not liable, and the Plaintiff appealed.

In order to impose liability on a merchant — that is, a store like that of the Defendant — for a patron’s injuries resulting from an accident, a plaintiff must prove that: (1) the condition presented an unreasonable risk of harm that was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the dangerous condition; and (3) the merchant failed to exercise reasonable care. La. R.S. 9:2800.6(B).