Articles Posted in Slip and Fall Injuries

greengrocer-1241104-1024x768Have you ever been involved in a slip and fall accident inside a store resulting from water being on the floor? Were you injured as a result? If so, who would you think was at fault? How would you receive just compensation? In a recent case, the Louisiana Second Circuit Court of Appeal discusses the necessary factors a plaintiff must prove in order to show that a merchant – such as a grocery store, clothing store, or even the owner of a food truck – was responsible for the injuries sustained resulting from a slip and fall accident.

This lawsuit originated from a slip and fall accident occurring on December 16, 2012, when Donna Ferlicca exited Brookshire Grocery Company’s store in Monroe, Louisiana. Upon entering the store, Ms. Ferlicca slipped and fell. There was allegedly water on the floor from the rainfall outside. Ms. Ferlicca suffered a fractured left arm resulting from her fall. On January 31, 2013, Ms. Ferlicca filed a lawsuit against Brookshire her damages. A bench trial proceeded.  A bench trial is a trial where the finder of fact is a judge or panel of judges rather than a jury.

The Trial Court ruled in favor of Ms. Ferlicca and awarded her general damages of $21,000.00 and special damages of $4,921.12. General damages are damages that do not have a fixed amount meaning the amount can vary based on any level of pain and suffering, mental anguish, or loss of enjoyment the plaintiff has suffered. Special damages are those damages that usually have a fixed market value such as lost wages, medical bills, or future medical expenses. These type of damages (general and special damages) are called Compensatory Damages. Compensatory damages are designed to place the plaintiff back into the position she would have been if she had not been injured.  The Trial Court ruled in favor of Ms. Ferlicca holding that 90% of fault belonged to Brookshire and 10% of fault belonged to Ms. Ferlicca herself. However, Brookshire filed an appeal to dispute the ruling of the Trial Court.  Brookshire argued that the Trial Court failed to properly apply slip and fall law in this case.

louisiana-state-capitol-1228662-1-1024x768Louisiana law holds responsible those who cause injury to others by failing to repair unreasonably dangerous conditions in their custody or control. This type of liability is called “custodial liability.” For example, a university that fails to maintain its walkways so as to cause injury to pedestrians can be held liable for damages by injured persons.  However, the university in this example would not be liable for conditions which are considered “open and obvious.” In a recent case, the Louisiana First Circuit Court of Appeal helped illustrate what is meant by “open and obvious.”

In 2011, Reina Abolofia was riding her bike at night on the campus of Louisiana State University in Baton Rouge when she hit an unmarked and unpainted concrete-filled metal pole that had been installed in the middle of the sidewalk.  She suffered injuries as a result and filed a lawsuit against LSU alleging seeking to hold LSU responsible for her damages under La. C.C. art. 2317 and La. C.C. art. 2317.1 with respect to defects of things that cause damage.

During discovery, Ms. Abolofia learned that the portion of sidewalk where her accident occurred was partly owned by LSU and partly owned by Southgate Towers, LLC.  She added Southgate Towers as a defendant because it was unclear if Southgate had erected the metal pole or LSU had done so and on whose property the pole was situated.  

shopping-1241024-1024x637A jury’s verdicts can an often depend upon which party it believes the most. In a jury trial, the jury is indeed the trier of fact. It hears the evidence and makes findings of fact based on the credibility of witnesses and other evidence presented at trial. In a case out of Gonzales, Louisiana the verdict hinged on whether the Plaintiff, Mindy Weiley, appeared credible to the jury or whether she seemed to be a liar.

Ms. Weiley filed a lawsuit against Wal-Mart after slipping and falling in a puddle of water at one of their stores.  Ms. Weiley contended that she suffered multiple injuries to her back, neck, and left knee.  At trial, the jury found that Wal-Mart was negligent by failing to keep its premises clear of debris, to clean up that debris, and to monitor the area covered by debris. However, the jury found that Wal-Mart’s negligence did not cause Ms. Weily’s injury. It did not believe her testimony that she suffered injury at the hands of Wal-Mart and dismissed the case in Wal-Mart’s favor. Weily appealed, arguing that the jury’s verdict was manifestly erroneous and that its finding of liability was totally inconsistent with its denial of damages.

When a Court of Appeal in Louisiana reviews a decision of the Trial Court, it is not permitted to determine whether the jury was, in fact, right or wrong in reaching its determination. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La. 1993). Rather, the Court only determines whether the jury’s decision was reasonably based upon everything the jury heard at trial. The jury’s determinations regarding the credibility, or trustworthiness, of witnesses and their testimony is given much deference. Rarely will these findings be disturbed on appeal.  

ballroom-sign-1195748-1024x768The Louisiana Merchant Liability Statute aims to protect persons from unreasonable risks of harm by unscrupulous merchants. At the same time, it limits the liability of merchants and protects them from frivolous lawsuits. In order to succeed on a merchant liability claim, the plaintiff must show that the merchant knew or should’ve known of the dangerous condition that harmed the plaintiff. In a recent case, while considering that a dance ballroom can be considered a “merchant, the Louisiana First Circuit Court of Appeal found that the plaintiff failed to show that the defendants had knowledge or constructive knowledge of the risk of harm.

In October 2010, D’Andrea Mills slipped and fell on a spilled drink and broken glass on the dance floor while attending a private party at the Lyceum Dean Ballroom in Baton Rouge. Mills sustained injuries, including two broken bones, which later required surgery, and was taken to the local ER for assistance. Mills filed a lawsuit seeking damages against Cyntreniks Plaza, L.L.C., the owner and operator of the Lyceum. Cyntreniks moved for summary judgment, seeking to have the case thrown out before trial. In its motion, Cyntreniks argued that Mills failed to satisfy her burden of proof under the Merchant Liability Statute, La. R.S. 9:2800.6, and there were no genuine issues of material fact for the court to determine.

The Trial Court granted summary judgment in favor of Cyntreniks and dismissed Mills’ claim. Mills appealed the judgment to Louisiana’s First Circuit Court of Appeals. The Circuit Court affirmed the lower court’s grant of summary judgment in favor of Cyntreniks. Judge Holdridge dissented.

grey-old-tractor-1450078-1024x768When an accident occurs, it’s often difficult to determine what actually happened until the aftermath, but in the justice system, piecing a puzzle together and drawing conclusions based on little remaining evidence rarely constitutes enough of a basis to file a lawsuit. As the court said in the case of Benjamin Tomaso when he attempted to file a lawsuit against Home Depot, “[s]peculation as to what caused an accident cannot supply the factual support necessary to show that a plaintiff would be able to meet his evidentiary burden of proof at trial.”

On April 18, 2012, Mr. Tomaso visited a Home Depot Store in Slidell, Louisiana. As Mr. Tomaso waited in the parking lot for his fiancé to return an item, he noticed lawn tractors on display and sat on one to “check it out.” A Home Depot employee who was returning a line of shopping carts asked Mr. Tomaso to get down from the tractor so he could move it and push the carts through. Mr. Tomaso attempted to get down from the vehicle and fell. At the time of the incident, Mr. Tomaso was unaware of what caused him to fall, but immediately after he noticed a zip tie on the step of the tractor and reasoned that it was the “only thing” that could have caused his fall.

Mr. Tomaso filed a lawsuit against Home Depot, Inc. on April 17, 2013. Mr. Tomaso alleged that his injury resulted from “a hazard that had negligently not been removed from the subject lawnmower” which caught his foot. Home Depot filed a motion for summary judgment which asserted that the zip tie was not a defective condition and Mr. Tomaso presented no evidence that his injury was foreseeable or that the Home Depot should have known the injury would occur.

chairs-2-1489343-1024x768In 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.

sidewalk-cross-1177206-1024x681Each 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.

supermarket-1575072-1024x692If 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.

IMG_1132Putting 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.  

curb-1-1571125Our 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.