Tioga Slip and Fall Case Study Part 1: The Plaintiff’s Burden of Proving Notice

In a previous post, we explored the elements of a negligence action that arose after a customer slipped and fell on a pool of vomit left by another customer while visiting a store in Farmerville. One of those elements is “notice,” or whether the merchant created or was aware of the unsafe condition that caused the plaintiff’s injury. In the Farmerville case, the plaintiff was unable to show that the store owner had notice of the vomit on the floor that caused her fall, and so her suit was not successful.

The recent case of Peoples v. Fred’s Stores of Tennessee, Inc., No. 09-1270 (Ct. App. of La., 3d Cir. 2010), illustrates how the plaintiff’s ability to prove notice can result in a different outcome. On August 10, 2004, Virginia Peoples and her husband, Wyndell, entered the Fred’s Store in Tioga. Upon passing through the entranceway, Peoples tripped over some boxes laying on the floor just inside the door which extended into the walkway. The boxes contained gazebos that were part of a clearance sale. Peoples fell forward into a display of stacked coolers, where she hit her chin before landing on the concrete floor. Pain in her neck and right wrist, shoulder, and arm prompted her to go to the emergency room at LaSalle General Hospital, where she was diagnosed with a pinched nerve and a radicular neck injury.

Peoples sued Fred’s Store for negligence, a bench trial was held, and Peoples was awarded nearly $200,000 in damages. Fred’s Store appealed, arguing, among other things, that the trial judge improperly concluded that Fred’s Store had notice of the improperly placed boxes that caused Peoples’s fall.

On appeal, the court reviewed Louisiana’s law on premises liability and the essential element of notice in a negligence action. Peoples argued that Fred’s Store had notice of the boxes because store employees had created the display and therefore had placed the boxes in the unsafe location. This theory is one of “actual notice,” given that the store employees who created the dangerous condition by definition had to be aware of it. At trial, Fred’s Store countered that the boxes had been safely arranged by store employees, but must have been moved by other customers. The judge was not convinced: he concluded that the boxes “were part of a display that was created by Fred’s” and dismissed the store’s argument that other customers could have repositioned the long, 80-pound boxes (which required at least two people to pick up) without any store employees’ noticing. The judge held that “Fred’s did have actual or constructive knowledge of the condition.” It’s interesting to note that the trial judge seemed open to the argument that Fred’s Store would have had constuctive notice under their own theory that customers moved the boxes, but this was not explicitly discussed. In any event, the Court of Appeals agreed that actual notice existed that found that “the record contains ample support for the factual finding made by the trial court that Fred’s created the floor display that caused Mrs. Peoples to trip and fall.”

The primary distinction between this case and the case in Farmerville is the identity of the party who caused the dangerous condition. Louisiana law requires merchants to exercise “reasonable care” in policing their premises for unsafe conditions caused by customers or other visitors. But a stricter standard applies when the danger is caused by store employees themselves, presumably because they are the very individuals who are charged with the duty under Louisiana law to exercise that reasonable care “to keep [the store’s] aisles, passageways, and floors in a reasonably safe condition” in the first place. La.R.S. 9:2800.6.

Given the complexity and fact-intensive nature of proving notice and the other elements of a negligence case, it is critical that you have competent counsel to represent you if you have been injured due to unsafe conditions at a store or other place of business.

Call the Berniard Law Firm toll-free at 1-866-574-8005 to speak with an attorney who can help.

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