“Constructive Knowledge” in Slip and Fall Suits: Time on Your Side

The Fourth Circuit recently affirmed summary judgment Keogh Cox obtained in Clark v. Premier Automotive Management, LLC, finding the plaintiff’s circumstantial evidence failed to establish an unreasonable risk of harm caused her to fall.

In Clark, the plaintiff claimed she was injured after slipped and fell in a puddle of water in a service garage. Keogh Cox attorneys Chad A. Sullivan and Cole C. Frazier filed a motion for summary judgment on behalf of the defendants in response. The defendants asserted that the plaintiff failed to submit sufficient proof to establish that standing water or a hazardous condition caused her fall. Specifically, the defendants maintained that the plaintiff could not establish (1) an unreasonable risk of harm existed within the garage or (2) the puddle of water existed on the garage floor for an extended period of time.

The plaintiff’s deposition testimony established that it rained earlier in the day, that she was walking quickly before she fell, and that she was wearing flip flops. The plaintiff also testified she assumed she fell in a puddle of water because her back was damp after her fall. She described the amount of water under her shoes as the size of a “softball.”

The defendants also attached the affidavits of two employees who worked at the service garage on the day of the incident. The affidavits acknowledged wet conditions on the day of the incident but denied any prior complaints or accidents in the area. The affidavits also established that the plaintiff fell in an uncovered area of the garage that slopes downward. Thus, there was no possibility for standing water or puddles to collect.

Based upon this evidence, the appellate court found that the defendants satisfied their burden of proof to show there was no unreasonable risk of harm. The court stated the burden then shifted to the plaintiff to establish that there was an unreasonable risk of harm and thus establishing a genuine issue of material fact. However, the court found that the plaintiff failed to meet her burden because all her arguments were based upon conclusory allegations and unsupported speculation. To support her claims, the plaintiff could only cite to the “possibility” of the existence of standing water or puddles. As such, the plaintiff only speculated whether a hazardous substance or an unreasonable risk of harm caused her fall. Such speculation was insufficient to establish a genuine issue of material fact.

In so holding, the court affirmed the dismissal of the plaintiff’s claims that Keogh Cox obtained through summary judgment.

References:

Clark v. Premier Auto. Mgmt., LLC, 2024-0397 (La. App. 4 Cir. 2/10/25), --- So.3d ---, 2025 WL 451473.

Generally, Louisiana Workers’ Compensation laws provide coverage for an employee who sustains personal injuries by an accident arising out of and in the course of his or her employment. La. R.S. 23:1021(1) defines “accident” as:

"An unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration."

In Rayborn, Sr. v. Continental Cement Company, LLC et al, the plaintiff-employee filed suit when the worker’s compensation carrier terminated benefits based on its assertion that the plaintiff’s left knee injury was not the result of an “accident” as defined in the statute. The evidence presented at trial established the following:

• After returning home from work one day, the plaintiff began to feel soreness behind his left knee and believed he “may have pulled a muscle.”
• The plaintiff sought medical attention at a local clinic 2 days later.
• The plaintiff told clinic staff that his “leg was hurting,” and that he “was at work climbing up and jumping down off of barges all week.”
• After returning from a pre-planned family trip one week later, the plaintiff told to his managers at work that he hurt his knee “some kind of way” and that he was “doing too much climbing up and jumping down from barges “and his knee “just started hurting.”
• The chart from follow-up clinic visits stated, “Patient had [an] injury while at work when he jumped from a height and later that day felt a discomfort in the left lateral knee.”
• Additional records noted the plaintiff “injured his knee on the job; however it was not readily apparent until [his] knee became stiff later that evening.”
• The plaintiff later consulted with an orthopedic surgeon whose initial chart entry stated, “Over the course of the week, his knee began bothering him in the patellofemoral area and it started to become tight and swollen.”

At the conclusion of trial, the workers’ compensation court ruled that the plaintiff successfully proved that he sustained a work-related injury of his left knee on a particular date by climbing and jumping while performing his work duties. On appeal, the workers’ compensation carrier argued that plaintiff’s assertion that he was injured “some kind of way” over the course of a week was not sufficient to meet the requirement of a specific, identifiable accident in the course and scope of employment under La. R.S. 23:1021(1).

In affirming the decision of the OWC judge, the appellate court highlighted numerous opinions from the Louisiana Supreme Court and other courts of appeal wherein the statutory definition of “accident” was liberally construed to reject an interpretation that excluded “those workers who are worn down, rather than immediately crippled by, their work.” The opinion notes that it is well-settled in the case law that an “accident” exists when “heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition.”

The opinion added, “It is presumed the legislature is aware of how Louisiana courts have interpreted the statute; yet, it has taken no steps to overrule more than thirty years of Louisiana jurisprudence.” In so holding, it is unclear whether the court considered La. R.S. 23:1020.1(D), in which the Legislature specifically rejected the jurisprudential doctrine requiring a liberal interpretation of Workers Compensation statutes in favor of an employee. Despite this statement from the Legislature on the construction of Workers Compensation statutes, the Rayborn opinion suggests that courts may continue to base their decisions on the liberal interpretation of “accident” that has been developed and adopted by Louisiana courts when analyzing what types of injuries are covered under Louisiana Workers’ Compensation Law.

References:

Rayborn v. Cont'l Cement Co., LLC, 2023-0403 (La. App. 1 Cir. 1/10/24), 2024 WL 132802.

The “open and obvious” defense remains alive and well in Louisiana according to an article penned recently by Professor John M. Church of the LSU Law Center for the Louisiana Association of Defense Counsel. In April 2013, the Louisiana Supreme Court announced Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), 113 So.3d 175, which muddied the waters regarding use of the “open and obvious” defense. Some read Broussard as a pronouncement that the “open and obvious” defense was essentially dead in Louisiana. However, as reflected in Professor Church’s article, subsequent Louisiana Supreme Court decisions have given new life to the defense.

The defense is based upon the premise that an “open and obvious” defect is non-hazardous, because a reasonably-attentive plaintiff could or should have avoided the harm in the exercise of due care. Before Broussard, courts routinely ruled that a defendant owed no duty to a plaintiff when the alleged defect was “open and obvious.” Following Broussard, courts began to shift the analysis from a question of duty (an issue of law) to a factor that should be considered when analyzing a potential breach of that duty (an issue of fact). As such, some courts concluded that the defense was not properly addressed at the summary judgment stage.

In October 2014, the Supreme Court appeared to alter course when it affirmed a summary judgment granted on grounds that the alleged defect presented an open and obvious condition. See Bufkin v. Felipe’s Louisiana, LLC, 2014-0288 (La. 10/15/14), — So.3d — 2014 WL 5394087. In reaching this decision, the Bufkin Court focused on the duty element of plaintiff’s case, which seemingly contradicted prior interpretations of Broussard. Thereafter, the Court went even further, affirmatively stating that “[a]ny reading of Broussard interpreting it as a limit on summary judgment practice involving issues of unreasonable risk of harm is a misinterpretation of the Broussard case.” Allen v. Lockwood, 2014-1724 (La. 2/13/15), 156 So.3d 650.

According to Professor Church, Bufkin and Allen reflect a shift back to an analysis of the open and obvious defense on the duty level and remove any doubt regarding whether summary judgment is appropriate in this setting. Professor Church anticipates that the Supreme Court will continue to clarify this doctrine in future decisions. For now, Broussard remains an obstacle, albeit shrinking, in the defense of trip and fall claims.

Author: C. Reynolds LeBlanc