Court Gives Guidance on Elements of a Slip and Fall: You’ve Got to Keep them Separated

The Louisiana Supreme Court recently issued a ruling on the application of the "open and obvious" doctrine in slip and fall cases. The facts of Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), presented problems for both sides. A UPS driver tripped and fell over an offset between the floor and an elevator. The elevator in a State building had problems for years. One problem was that the elevator would not align properly between floors causing an offset between the floor and the elevator. However, the UPS driver delivered products to this particular State building daily and was well aware of the problem. At the time of the incident, he noticed that the elevator was not properly aligned but nevertheless attempted to pull a dolly with approximately 300 pounds of computer paper over the offset. The inertia created caused the plaintiff to lose control. Plaintiff sued the State, the owner of the building, for injury to his back.

To recover damages from an owner of a building for a slip and fall, a plaintiff must prove: 1) ownership of the building; 2) owner's knowledge of the defect; 3) that damage could have been prevented by reasonable care; 4) that the owner failed to exercise reasonable care; 5) causation of damages; and 6) that the defect in the building created an unreasonable risk of harm. La. C.C. art. 2322; Entrevia v. Hood, 427 So. 2d 1146 (La. 1983). It was the "unreasonable risk of harm" element that was at issue before the Broussard Court.

Louisiana jurisprudence has created a risk-utility balancing test to determine if a defect in a building poses an unreasonable risk of harm. The risk-utility balance test consists of four factors: 1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature. Dauzet v. Curnest Guillot Logging, Inc., 08-0528 (La. 12/2/08), 995 So. 2d 1184.

In applying this balancing test, the jury found the State 62% liable and Plaintiff 38% liable for Plaintiff's damage. The court of appeal reversed that decision. It found that, where the Plaintiff knew of the defect, the defect was "open and obvious" such that the State had no duty to protect against the condition.

The Louisiana Supreme Court disagreed. Under the specific facts of the case, the Court found that Plaintiff's knowledge of the defect was insufficient to meet the open and obvious test. According to the Court, for a defect to be considered open and obvious it must be open and obvious to all. "Thus, in order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition." Broussard, p. 17.

The Supreme Court reasoned that the open and obvious question is not based upon the plaintiff's particular state of mind. Such an analysis is akin to assumption of the risk - a theory of law that was omitted when Louisiana enacted its comparative fault regime. Instead, the open and obvious to all standard is, according to Broussard, "sensible . . . and does not undermine the comparative fault regime by allowing a plaintiff's negligence to operate as a bar to recovery in a case where the defendant's conduct poses a risk of harm to the hypothetical blameless plaintiff." Id. p. 18.

The true impact of the Broussard decision remains to be seen. Under one reading, the opinion's impact should be limited to its specific facts. Under any interpretation, Broussard preserves the rule that an allegedly defective condition which is obvious to all will bar recovery to the plaintiff.

Louisiana’s “slip and fall” statute La. R.S. 9:2800.6 was enacted in response to an elevated burden of proof imposed upon retailers. To recover, a patron must prove both the existence of an unreasonably dangerous condition and that the merchant created or possessed actual or constructive knowledge of the condition. Two recent Louisiana decisions demonstrate that the plaintiff’s burden to show knowledge is often difficult to meet.

In Fountain v. Wal-Mart Stores, Inc., 19-669 (La. App. 3 Cir. 3/18/20), 2020 WL 1307417, Fountain entered the store while it was raining. After shopping for 30 to 40 minutes, he visited the Garden Center and fell in a puddle of water he estimated as 8 inches by a foot and a half. There was no direct evidence Wal-Mart was aware of the alleged defect. Without actual knowledge, Fountain possessed the burden to demonstrate “constructive notice.” To prove constructive notice, the plaintiff must come forward with “positive evidence showing that the damage-causing condition existed for some period to time, and that such time was sufficient to place the merchant defendant on notice of its existence.” Under case facts, the trial court determined that Fountain had not demonstrated this “temporal” element and dismissed the case on motion practice. The dismissal was upheld by the Louisiana Third Circuit.

In Opposition to the Motion for Summary Judgment, Fountain made a three-fold argument. First, he alleged that a Wal-Mart employee told him that the water on the floor came from a lady who shook a broken umbrella in the area. The court held that Fountain’s self-serving testimony and reliance upon a hearsay statement was insufficient to establish notice.

Next, Fountain alleged that a manager’s testimony that a large amount of water was found in the general area showed that Wal-Mart “knew or should have known.” Nevertheless, there was no evidence as to how long the water had existed on the floor.

Finally, Fountain cited to video surveillance showing that numerous persons could have tracked water into the area. Distinguishing cases where employees had worked in the precise area of the hazard, the Fountain court stated “our de novo review of the record reveals Mr. Fountain failed to present evidence as to length of time the puddle was on the floor prior to the accident. Therefore, he did not carry his burden of proving that Wal-Mart had constructive knowledge of the condition.”

Similarly, in Bryant v. Ray Brandt Dodge, Inc., 19-464 (La. App. 5 Cir. 3/17/20), 2020 WL 1270963, summary judgment was upheld where the plaintiff lacked positive evidence of how long the condition (a few spots of water) existed prior to the accident. The plaintiff argued that an employee who used the restroom approximately five minutes before was the most likely cause of the alleged hazard. However, this argument was rejected as “mere speculation.”

In these cases, whether an unreasonably dangerous condition is present is a critical issue. However, as seen in Bryant and Fountain, how long the condition existed is sometimes just important. In many cases, time is not on the plaintiff’s side.

Tori works toward efficient, cost-effective resolution strategies, whether in or out of the courtroom. When she is not in the office or in a courtroom, she can be found with her husband and two kids at ballfields, ballet recitals or her local church.

Louisiana law does not recognize "strict liability" for slip and falls and a merchant is not automatically liable for someone’s injuries simply because he or she fell on the merchant’s premises. Before plaintiffs can recover damages for a slip and fall that occurs in a merchant’s store, La. R.S. 9:2800.6 requires plaintiffs to prove three separate elements in addition to causation and damages: 1) that the condition that caused the accident presented an unreasonable risk of harm that was reasonably foreseeable; 2) that the merchant either created the condition or had actual or constructive notice of the condition (the “notice element”); and 3) that the merchant failed to exercise reasonable care. A recent decision from the Louisiana Fifth Circuit highlights that evidence used to establish one element is not always good enough to establish another. Instead, all three of these elements are required for liability to attach.In Batiste v. United Fire and Casualty Company, 17-482 (La. App. 5 Cir. 3/14/18), the plaintiff claimed she slipped and fell on water in a grocery store aisle. Batiste admitted that she did not know where the water came from, how long the water had been on the ground, or whether any employees knew the water was present. As such, the plaintiff conceded that she could not show that the grocery store created the condition or had actual knowledge of the puddle before she fell.However, Batiste claimed the store had constructive notice of the condition. To support this argument, the plaintiff pointed to evidence that a grocery store employee failed to confirm she completed a walk-around inspection of the store before the accident, in violation of company policy. Batiste argued that the puddle of water would have been discovered had the inspection been performed and that the failure to perform the inspection was proof that the grocery store possessed “constructive notice.”The court disagreed. To establish constructive notice, plaintiffs “must come forward with ‘positive evidence’ showing the damage-causing condition existed for some period of time” sufficient to place the merchant on notice of the defect. Without this “temporal element,” constructive notice cannot be inferred. An employee’s failure to perform a pre-incident inspection could not establish this temporal element. Therefore, the court found that plaintiff’s claims were properly dismissed. In closing, the court observed:

While the evidence regarding the adequacy and timing of the floor inspection may be relevant for proving a failure to exercise reasonable care to discovery a hazardous condition, a delay in the performance of such procedures offers no proof of how long any such condition may have been on the floor, a separate and equally essential requirement of the Batistes’ burden of proof under Section 9:2800.6.

The plaintiff’s claims were dismissed because she could not establish each element of her claim. Evidence of one element was not evidence of another. Reynolds LeBlanc is a partner at Keogh Cox. His practice areas include commercial litigation, personal injury claims, appeals, and other matters. Reynolds is a former teacher, who in his free time plays music and perpetually talks himself into training for his next marathon.