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.