Imagine shopping at the grocery store, selecting fruit, when suddenly you are flat on your back. Not just embarrassing but also painful and potentially injury-causing. Who should be liable in this type of case? In a similar case involving a Lake Charles Kroger store, the answer lay in who had notice of the hazard.
Glenda Parks was shopping at Kroger, perusing the produce section. After she passed the grape display, she slipped and fell. A store employee was working close by and helped Parks up. Parks proceeded to shop in the same area, then walked back to the grapes where she had fallen. She noticed several grapes on the floor, including some smashed ones. The Kroger employee was cleaning up the grapes and the surrounding floor. Parks was in the store for approximately twelve minutes in total.
Parks filed a lawsuit against Kroger, and Kroger filed a motion for summary judgment. The Fourteenth Judicial District Court for the Parish of Calcasieu agreed with Kroger that Parks would not be able to show that Kroger had the requisite notice of the hazard. Parks appealed to the Louisiana Third Circuit Court of Appeal.
A Louisiana merchant does have a duty to exercise reasonable effort in keeping their premises free of hazards. La.R.S. 9:2800.6. In proving a slip and fall claim, the injured party must show a condition that presented a foreseeable and unreasonable risk of harm. Additionally, the merchant had actual or constructive notice of the hazard. Finally, the injured party must show the merchant failed to exercise reasonable care in regard to the hazard.
To proceed under a theory of constructive notice, the injured party must show the hazard existed for such a period of time that the merchant would have discovered it if using reasonable care. La. R.S. 9:2800.6(C)(1). The time period requirement is not specific in length. However, the injured party must provide factual support that the hazard existed for some time before the fall. See White v. Wal-Mart Stores, Inc., 699 So. 2d. 1081 (La. 1997). Speculation, unsupported allegations, or improbable inferences will not provide the factual support necessary to keep a lawsuit from being dismissed before trial. See Richard v. Liberty Mutual Ins. Co., 123 So. 3d. 345 (La. Ct. App. 2013).
The main issue before the Third Circuit was whether Parks could show Kroger should have known about the fall hazard before Parks’ fall. There was a Kroger employee in the produce area before the fall. This same employee was available to help Parks up after she fell and cleaned up the grapes that Parks slipped on. The Kroger employee testified that it is common for grapes to be on the floor of the produce section because so many shoppers take grapes from the bags before purchasing. In this specific case, however, there was no evidence that any Kroger employee had noticed the grapes before the incident. Parks herself did not even see the grapes before her fall. Parks did not provide the necessary facts to support her claim that Kroger should have known about the hazard before the fall. Therefore, the Third Circuit agreed with the District Court and dismissed the lawsuit.
This case highlights that to proceed under a theory of constructive notice; concrete evidence must be presented that the merchant truly should have known about the hazard. While the time period required is never specified, courts are looking for a sufficient time combined with a set of facts that show a merchant reasonably should have discovered the hazard. A good attorney can help evaluate whether there is enough factual support for a lawsuit to survive summary judgment.
Additional Sources: Glenda L. Parks v. The Kroger Company
Written By: Stephanie Burnham
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