When Is A Merchant Liable For A Patron Falling On Business Premises?

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.

After the accident, both gentlemen proceeded into the store. Mr. Waddles did not report the incident to the store’s management and treated his injuries at home. However, he was still experiencing pain in his hand and knee two days later and returned to the store to report the incident. The store’s manager, Mr. Hightower, recorded the incident report. Almost a year after the incident, the Plaintiff filed a claim against Brookshire’s Grocery Company. The Trial Court held that the Defendant, Brookshire’s Grocery Company, was not liable for the Plaintiff’s injuries because Louisiana case law established that a landowner does not have a duty to eliminate elevations in concrete parking lots. Further, the Trial Court noted that when a concrete deviation is between one and three inches and has no history of prior injury or complaints, the condition is not an unreasonable risk of harm and the landowner is not liable for injuries sustained by others.

Mr. Waddles, displeased with the Trial Court’s ruling, filed an appeal. He asserted that the Trial Court was wrong in not finding the Defendant liable for his injuries for five reasons: (1) there is no law that states that a prior accident must have occurred; (2) the case law upon which the Trial Court relied is distinguishable from the instant case because the crack/hole in the concrete was more than one to three inches in depth; (3) the Trial Court failed to consider case law which deems cross-walk areas to have a heightened standard of care; (4) the Trial Court was wrong in finding that the Plaintiff did not meet his burden of proof and should have found that the defect in the parking lot was unreasonably dangerous; (5) the Trial Court was wrong in not awarding Mr. Waddles damages for injuries that he sustained.

The Louisiana Second Circuit Court of Appeal recognized that the Plaintiff was correct in stating that the relevant statute does not require a prior accident to have occurred. However, the Trial Court was not wrong in considering it. See Burnes v. Caddo Parish Sch. Bd., 146 So.3d 270 (La. Ct. App. 2014). Secondly, the Court of Appeal noted that although the facts of the case law relied upon by the Trial Court and the facts of this case differed, again the Trial Court was not wrong in considering it. Moreover, the Plaintiff did not provide any information regarding the size of the defect in the parking lot. Thirdly, the Plaintiff did not provide anything that showed that the Defendant knew of the defect in the concrete or that the condition of the defect created an unreasonable risk of harm. This was precisely the Plaintiff’s burden of proof pursuant to La. R.S. 9:2800.6, which the Trial Court determined the Plaintiff failed to meet. Finally, since none of the Plaintiff’s assignments of error were upheld, there was no cause to award damages and the holding of the Trial Court was affirmed with all court costs assessed to the Plaintiff.

This case is a prime example of how common belief can be down-right wrong. Generally, the common belief is that a patron will prevail in cases where he/she is injured on a merchant’s premises and the merchant will end up paying a large sum to the injured party. This notion is constantly projected to the public by way of the media. However, this is not always the outcome. In fact, a Plaintiff that is injured and does not win his/her case may end up owing much more money than he/she bargained for. On top of hefty medical bills, a losing party can also end up owing court costs. These types of cases can become somewhat of a slippery slope.You should always contact a good attorney to evaluate the risks of pursuing litigation.


Written by Berniard Law Firm Blog Writer: Leila Arefi-Pour

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