Articles Posted in Slip and Fall Injuries

old-meets-new-1222960-1024x685Owning a business can be a daunting task and often times requires the assistance of outside contractors to complete various maintenance items and to aid in the upkeep of the premises. However, many merchants and customers fail to realize that the merchant may be liable for the actions of a subcontractor.  Just how liable was the subject of a recent lawsuit out of New Iberia.  

In this case, Patricia Ann Thompson filed a lawsuit against a Winn-Dixie grocery store in New Iberia, Louisiana after slipping and falling on a puddle in the freezer section of the store. Winn-Dixie contracted with a cleaning service which in turn contracted with KAP Cleaning Services (“KAP”) to clean the store. KAPS’s employee rolled up a mat to clean the floor in front of the freezer where Ms. Thompson fell.  Moving this mat caused water to be exposed and ultimately led to Ms. Thompson slipping and falling on the grocer’s premise and sustaining injury. The Trial Court held that Winn-Dixie was 30 percent at fault and KAP was 70 percent at fault. Yet, the Louisiana Third Circuit Court of Appeal amended the distribution of fault and held that Winn-Dixie was 100 percent liable for Ms. Thompson’s injuries. The Court of Appeal supported its decision on two grounds.  First, the Court of Appeal found that Winn-Dixie as the merchant was statutorily not permitted to share liability with a subcontractor.  Second, the Court of Appeal found the contractual arrangement between the two parties allowed for operational control by Winn-Dixie over KAP’s employees which would not shield it from liability for a subcontractor’s actions.  Winn-Dixie appealed to the Louisiana Supreme Court.  

Generally, a merchant owes a duty to those on their premises to exercise reasonable care to keep its floors in a reasonably safe condition and to keep the store free of hazardous conditions under  La. R.S. 9: 2800.6. However, when a merchant hires a subcontractor it can be more difficult for a court to assign fault.  Generally, a principal is not liable for the actions of a subcontractor unless the principal retains the right to supervise or control the subcontractor’s work. See Sys. Contractors Corp. v. Williams & Associates Architects, 769 So. 2d 777 (La. Ct. App. 2000).    La. C.C. art. 2323 and La. C.C. art. 2324 do not eliminate or make any exceptions for a merchant’s liability under La. R.S. 9:2800.6 but rather provide for comparative fault.  Louisiana courts will apportion fault based on parties’ knowledge and control over the condition that created peril.  See Watson v. State Farm Fire and Casualty Insurance Co., 469 So. 2d 967 (La. 1985) Under the Watson factor test, courts assess: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the ability of the actor, whether superior or inferior, and (5) any circumstances which might require the actor to proceed in haste without proper thought.

prison-door-1515179-683x1024Law abiding citizen or not, people expect local governments to keep them safe, especially from dangerous conditions on public property.  But, just how much responsibility do local governments have in keeping public grounds safe?  This question was recently answered in a case coming out of Lafayette Parish.

On November 15, 2012, Summer Hunter, an inmate at Lafayette Parish Correctional Facility, was injured while being transported to the courthouse.  Prior to the transfer, Ms. Hunter was handcuffed and shackled at the legs.  Ms. Hunter was being escorted across the street by a deputy when her leg shackles became entangled on an expansion joint between slabs of the sidewalk.  This caused Ms. Hunter to fall, resulting in a fractured ankle.

On November 13, 2013, Ms. Hunter filed a lawsuit in the Fifteenth Judicial District Court against the Lafayette Consolidated Government (“The Parish”) for injuries sustained as a result of the fall.  In response, the Parish filed a motion to dismiss Ms. Hunter’s claim.  The Parish asserted that it could not liable for Ms. Hunter’s injuries because it was not aware of any problem with the sidewalk prior to the date of her accident.  The District Court granted the Parish’s motion to dismiss the lawsuit, finding that Ms. Hunter lacked the ability to present any evidence that the Parish had notice of the dangerous sidewalk.  The District Court acknowledged that cities have a responsibility to keep its sidewalk reasonably safe, however, reasonably safe and perfect condition are not synonymous.

children-at-play-1328051-1024x685There really can be several hazards in a grocery store: rogue carts, other shoppers, scattered merchandise, to name a few.   Even more common is the infamous puddle of water.  Inevitably in a store full of liquids, patrons can slip and fall in a neglected puddle.  But when should the grocery store (or any merchant) be required to compensate a patron for injuries sustained in a slip and fall case?  This was the subject of a recent case out of Marrero, Louisiana.   

Carol Evans was shopping at the Marrero Winn-Dixie when she slipped in a puddle of standing liquid. Ms. Evans brought a lawsuit against Winn-Dixie for her injuries alleging that she slipped in the puddle of liquid in the meat section of the store. The store’s co-director, Mr. Scioneaux, helped Ms. Evans complete an incident report. Subsequently, Mr. Scioneaux successfully tracked down what he believed to be the source of the moisture, a leaking 24-pack of water. He then reviewed surveillance video of the aisle where the incident occurred and saw no evidence of any other injuries. He further testified that the person who had the leaking 24-pack of water in their grocery cart was in the aisle only one minute prior to the accident.  Ms. Evans testified that she did not notice any liquid on the floor until after she fell, and further described it as being clear. She also had no way to account for the length of time it had been present, and there were no prior complaints of water before Ms. Evans sustained her injuries. Winn-Dixie filed a motion for summary judgment, asserting that Ms. Evans could not show that Winn-Dixie had actual or constructive notice of the condition prior to her accident, which was required for a successful case.  The Judicial District Court for the Parish of Jefferson granted Winn-Dixie’s motion for summary judgment based on Ms. Evan’s failure to prove notice as required. Ms. Evans filed an appeal with the  Louisiana Fifth Circuit Court of Appeal.  

Merchants are tasked with the duty of keeping their premises in reasonably safe condition. This means that a merchant must exercise reasonable care in keeping aisles, passageways, and floors free from any hazardous conditions that could reasonably cause injury.  A plaintiff who sustains injuries while lawfully on the merchant’s premises must prove: [1] the condition created an unreasonable risk of harm that was reasonably foreseeable; [2] the merchant was aware of the condition that caused the damage, through either actual or constructive notice, prior to the injury; and [3] the merchant failed to exercise reasonable care to remedy the condition.  See La. R.S. 9:2800.6.  To succeed under a theory of constructive notice, a plaintiff must show that the hazardous condition existed for a period of time that it would have been discovered if the merchant exercised reasonable care. See Trench v. Winn-Dixie Montgomery LLC,  150 So.3d 472,475 (La. Ct. App. 2014). A plaintiff must present “positive evidence” of the existence of the condition prior to the accident.   For employee presence to constitute constructive notice, a plaintiff must show that an employee either knew or should have known of the condition.  The burden of presenting solid evidence in these cases is high; a plaintiff cannot successfully bring a slip and fall case based on speculation.  

concert-1436178-1024x768What starts out as an entertaining night out for a concert with friends, ends with painful injuries.  Instead of enjoying your favorite music with companions, you must go to the hospital to treat injuries sustained due to negligent maintenance of the concert venue.  You are now recovering from your injuries and are faced with medical expenses.  You know that you shouldn’t be responsible for the medical bills; after all, you are hurt because someone failed to do their job.  But who exactly is responsible?  Determining the party responsible for personal injuries was a recent issue in a case out of Baton Rouge.

In March of 2006, Ms. Shannon Rodrigue went to a concert with her friends at the Riverside Performing Centroplex in Baton Rouge, Louisiana.  As Ms. Rodrigue and her friends waited in line to enter the Centroplex, a Spectator Management Group (“SMG”) employee instructed the group to go around the side of the building and go down a flight of stairs in order to get their seats.  As the group proceeded to head down the stairs, Ms. Rodrigue missed a step and fell down the flight of stairs.  The fall was the result of a poorly lit stairwell.  Ms. Rodrigue sustained several injuries to her head, back, neck, knees, and wrists.

Ms. Rodrigue filed a lawsuit against several parties whom she believed were responsible for the poorly lit stairwell that ultimately led to her injuries.  The parties included the Centroplex, the Centroplex’s insurer, and the City of Baton Rouge-Parish of East Baton Rouge; SMG and its insurer.  In response to Ms. Rodrigue’s filing of the lawsuit, SMG and its insurer filed a motion to have Ms. Rodrigue’s lawsuit against them dismissed.  SMG asserted that Ms. Rodrigue had no claim against them and their insurance company because they did not have custody of the stairwell where Ms. Rodrigue fell.  SMG further claimed that even though Ms. Rodrigue and her friends were directed to the stairwell by one of its employees, SMG was not aware of the lighting situation of the stairwell before her fall. The  District Court for the Parish of East Baton Rouge granted SMG’s motion and Ms. Rodrigue’s claims against it were dismissed.  Ms. Rodrigue appealed to the Louisiana First Circuit Court of Appeal.  

to-market-1510735-1024x768No legal case is without controversy, but some of the most controversial types of cases involve a slip and fall injury. For some, it is hard to believe that a “little fall” could actually cause substantial injury. Often times, those who bring a slip and fall action are seen as milking the situation to try to get money from a business. However, when a person is injured he or she must prove that the injury was the result of someone’s alleged negligence. This proof requires that the injured individual show that the facts surrounding the incident support his or her claim. When coupled with a stringent legal standard, a dispute of what occurred at the time of the injury complicates the matter. The following slip and fall lawsuit filed against the Albertsons in Shreveport, Louisiana, shows the difficulty in bringing such claims to trial.

Yvonne and Aristide Ton were visiting an Albertsons’s grocery store in 2013. Upon arriving at the store, Ms. Ton went straight to the display of pumpkins out front, while Mr. Ton went to get a cart. After looking at the pumpkin display, Ms. Ton looked around for her husband, took a step or two, and then fell injuring her shoulder. Ms. Ton could not identify exactly what happened when she fell, but she claimed in her lawsuit that the fall was caused by a “defect in the concrete.” Albertsons responded by claiming that the concrete area where Ms. Ton fell posed no reasonable risk of harm. Albertsons provided witness testimony stating that the area where Ms. Ton fell had no prior history of falls and that the store had received no complaints regarding the area around the pumpkin display.

Under Louisiana Law, a business must “keep aisles, passageways, and floors in a reasonably safe condition.” La. R.S. 9:2800.6. This duty imposes a reasonable effort on the business to keep its premise free of any unsafe conditions which may cause injury. To bring a slip and fall claim against a business, the injured person must prove three things: 1) the floor surface presented an unreasonable and foreseeable risk of harm 2) the business created or knew of the unsafe floor surface and 3) the business failed to use reasonable care.

beauty-salon-4-1570299-1024x1015When going to the nail salon, the last thing anyone thinks about is falling and getting seriously injured. Slip and fall accidents happen all the time, and it is important to gather as much evidence as possible and retain a good personal injury attorney in order to build the best possible case for yourself. The courts do not look favorably on those who make a claim and have very little evidence to back it up, as Pamela Burnett (“Ms. Burnett”) discovered when trying to win damages from the Lucky Nails salon.

On August 20, 2012, Ms. Burnett went to the Lucky Nails salon in Baton Rouge, Louisiana to get a standard nail polish change. All was going well at the salon, but as she was walking toward the pedicure chairs after choosing a polish color, she slipped and hit her head on the foot rest of one of the chairs. Ms. Burnett filed a lawsuit against the nail salon and its insurer, State Farm Insurance Company. Ms. Burnett alleged that the nail salon was negligent in maintaining the property and the floor of the salon. The defendants filed a motion for summary judgment because Ms. Burnett could not prove that there was a foreign substance or hazardous condition on the floor, that the nail salon created or had actual or constructive notice of the hazard, and that the salon failed to exercise reasonable care. The Trial Court found the evidence did not demonstrate that there was anything obvious on the floor. Ms. Burnett testified that the floor felt slippery, but was unable to identify what kind of substance was on the floor. The Trial Court granted the defendants’ motion for summary judgment on September 9, 2014, and dismissed the suit with prejudice. Ms. Burnett appealed this decision to the Louisiana First Circuit Court of Appeal.

On appeal, the First Circuit addressed Ms. Burnett’s argument that the Trial Court failed to look at the most critical evidence of the case. This evidence was a video recording of Ms. Burnett’s fall at the nail salon. The Trial Court stated that they were unable to see the video, however, they had plenty of still photographs taken directly from the video recording. The photographs clearly depicted the floor of the salon and they showed no substance or liquid on the floor. The First Circuit was able to view the video but found that it did not matter that the Trial Court was unable to view it because it did not present any new conclusions to reverse the summary judgment decision.

grocery-store-1-1161348-1-1024x681When a merchant sets up shop, he/she may become liable for any accident that occurs on the business’s premises. However, the merchant is not automatically at fault. Sometimes a person is injured and the merchant is not to blame, either because the plaintiff was careless or failed to satisfy his burden of proof. The law in Louisiana that governs a merchant’s liability for negligence also governs the plaintiff’s burden of proof when bringing a claim against a merchant. This law also provides a list of elements, which the plaintiff must prove in order to succeed in their claim. See La. R.S. 9:2800.6.

The first part of the law sets forth a merchant’s duties such as keeping their aisles, passageways, and floors free from hazardous conditions. The second part, which deals with an injured plaintiff bringing a negligence claim against a merchant, provides a test. Although this part is directed towards a claimant, it also puts merchants on notice as to their duties towards customers. In order for the plaintiff to prevail, the plaintiff must meet all elements of the test. A person who was lawfully on the merchant’s premises and sustained damages, injuries, or death must prove: (1) the condition which caused the plaintiff’s misfortune presented an unreasonable risk of harm and the risk must have been reasonably unforeseeable; (2) the merchant either created the condition or knew of the condition prior to the plaintiff’s injury; and (3) the merchant failed to exercise reasonable care. The absence of a merchant’s “clean up policy,” written or verbal, will not be enough for the plaintiff to prove a failure of reasonable care on the part of the merchant.

In this case, a store patron appealed the District Court’s judgment that allowed a grocery store to escape liability after the patron fell and injured himself in the store’s parking lot due to uneven pavement. The Plaintiff, Mr. Jerome Waddles, and a friend, Mr. Donald Robinson, arrived at Brookshire’s Grocery Store in Bossier City, LA. As the two walked towards the store, Waddles tripped on the uneven pavement and fell relatively hard. At trial, Mr. Waddles and Mr. Robinson described the area as a “crack and a hole.” Despite the damaged pavement being located in a heavily-trafficked area, the was no history of any prior incident.

shopping-cart-1550709-1024x768When you suffer a personal injury such as a slip and fall and pursue a remedy in court, you must be able to support your allegations with sufficient evidence. After conducting initial discovery, a party may move for summary judgment and seek to have the case dismissed before it is ever heard by a trier of fact. When a party moves for summary judgment, it argues that the initial discovery shows that there are no issues of material fact to be decided by the trier of fact and that it is entitled to judgment as a matter of law. The opposing party, the party seeking to avoid having their case dismissed, must then present evidence to show that there are issues of material fact that should be heard at trial. In a recent case from the Louisiana Second Circuit Court of Appeal, a plaintiff conveniently “corrected” her deposition testimony attempting to defeat a motion for summary judgment. While the suspect changes were ultimately admitted, this was not sufficient to allow the case to go forward at trial.

In this case, Ginger Crawford slipped and fell on a wet floor in the dairy section of a grocery store owned by Brookshire Grocery Company in Springhill, Webster Parish, Louisiana. In response to a request by Brookshire, Ms. Crawford gave a deposition in which she swore to the court her version of the incident that happened in Brookshire’s Grocery. The deposition was certified by the court reporter. Brookshire then filed a motion for summary judgment, relying heavily on Ms. Crawford’s deposition. Brookshire’s motion argued that the case should be dismissed before trial because based on the initial discovery, it was evident that Ms. Crawford could satisfy her evidentiary burden under Louisiana’s Merchant Liability Statute. More specifically, Brookshire asserted that Ms. Crawford could not satisfy the “temporal” element of her claim.

In order to succeed in a slip and fall claim, a plaintiff must satisfy each and every element of Louisiana’s Merchant Liability Statute. See L.A. R.S. 9:2800.6.  First, the condition that caused the fall must have presented an unreasonable risk of harm to the plaintiff and that risk of harm must have been reasonably foreseeable. Second, the merchant must have either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. Third, the merchant must have failed to exercise reasonable care. In determining whether the merchant exercised reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient to prove failure to exercise reasonable care.

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.