Premises Liability: Defense Summary Judgment in an Accident Involving Rolling Chair

A recent decision from the Louisiana Third Circuit Court of Appeal re-affirms the merchant liability rules. In Carolyn R. Miller and Steven Rathjen v. Willis Communications, et. al., 19-787 (La. App. 3 Cir. 6/24/20), the plaintiff was an elderly patron of an AT&T store. Plaintiff and her daughter were assisted at the customer service desk, and plaintiff took a seat in a rolling chair. When she attempted to stand up, the rolling chair moved, and she fell to the floor breaking a hip.

Plaintiff filed suit under the merchant’s liability statute, La. R.S. 9:2800.6. Per the statute, if a negligence claim is brought against a merchant by a person lawfully on the merchant’s premises for injuries sustained because of a fall, then plaintiff must prove: 1) that the condition of the merchant’s premises presented an unreasonable risk of harm that was reasonably foreseeable; 2) that the merchant created the risk or had actual or constructive knowledge of the condition; and 3) that the merchant failed to exercise reasonable care to address the unreasonable risk of harm. Plaintiff argued that an unreasonable risk of harm was created when she was given a chair on rollers on flooring allegedly unsafe for use with a rolling chair.

The defendants filed a motion for summary judgment, which was denied by the trial court. The appellate court reversed and entered summary judgment. The appellate court found that the critical element of plaintiff’s burden of proof was missing – any defect in the rolling chair. Plaintiff admitted that the chair was not defective. Instead, she argued that she should not have been given a rolling chair to sit in because of her age, obvious mobility issues, and because the rolling chair was unsafe on the flooring of the store.

Evidence was presented that: 1) plaintiff’s daughter was able to maneuver the rolling chair without incident; 2) the daughter did not believe that plaintiff would have trouble navigating the rolling chair; and 3) no other customer had ever fallen out of one of the rolling chairs. Simply, what occurred at the AT&T store was an accident, for which AT&T and its employees were not responsible. Plaintiff, well aware of her own physical limitations, chose to sit in a rolling chair that she physically was unable to get out of on her own. Based upon this evidence, the court reasoned that plaintiff did not prove that: 1) the rolling chair posed an unreasonable risk of harm; or 2) the merchant possessed actual or constructive knowledge of any defect.

Following decisions which imposed harsh standards upon retailers, the Louisiana Legislature adopted the merchant’s liability statute to limit recovery to cases involving true negligence. The Carolyn R. Miller decision demonstrates that the statute is properly used in motion practice to resolve cases where the merchant lacks advance knowledge of the claimed unreasonable risk. Sometimes, an accident is just an accident.

Virginia “Jenny” McLin is a partner at Keogh Cox who practices in the fields of corporate litigation, insurance defense and workers compensation defense. When she is not practicing law, Jenny can be found volunteering with the Junior League of Baton Rouge; cheering for the LSU Tigers with her husband Ryan; or shuffling her two kids to and from dance practice.

By Brian Butler

Many do not realize modern vehicles are always ready to record critical driving information. As with airplanes, most passenger vehicles are now equipped with Event Data Recorders (EDR), or "Black Boxes." This information may be critical after an accident to show what happened, and who was at fault.

EDRs may record pre-event data for five seconds before and one second after an accident, possibly including vehicle speed, engine speed, percent throttle, change in velocity, and whether the brakes were applied. The make and model of the vehicle will determine what data is available. If you want this data, you must act quickly because it will be “overwritten” at some point if the vehicle continues in use.

It is also important to retain a competent expert to download the data. In Laborde v. Shelter Mutual Insurance Co., 82 So. 3^rd 1237 (La. 3/9/2011), the trial court excluded the printout of data downloaded from a Black Box because of the boxes "chain of custody" and the method the information downloaded. It is important that your legal team knows how to obtain and preserve this evidence.

Data from Black Boxes can be useful in many ways. In some cases, it may help to prove that the accident involved a low impact or to show that no brakes were applied. In other cases, it may harm your position, but the data is almost always relevant. There are costs in downloading and interpreting the data. But in the right case, the secrets kept in the Black Box may be the only way to reveal the truth.

Brian has been doing defense work for the last 28 years. He has handled all types of defense matters over his career, but in recent years his practice has been focused in serious injury or damage cases and has worked extensively with experts involving complex cases, fire cases, and forensic work.

The Louisiana Products Liability Act (“LPLA”) contains the exclusivetheories of recovery against a manufacturer for damages caused by its product.The term “manufacturer” within the LPLA includes “the seller of a product whoexercises control over or influences a characteristic of the design,construction, or quality of the product that causes damage.” The rapid growthof e-commerce raises a unique question – how do we classify internet retailers?

Internet retailers generally act as a middleman for third partymanufacturers and online consumers. In this respect, they are not technically“sellers” as defined by the LPLA because they typically do not have controlover the design or construction of the products they sell. Nevertheless, theproper categorization of internet retailers may become important when someoneis injured by a product, as was the case in State Farm Fire and CasualtyCompany v. Amazon.com, Inc., 2019 WL 5616708 (Miss. N.D. 10/31/19) ---F.Supp.3d ---.

In State Farm Fire and Casualty Company v. Amazon.com, Inc., two hoverboards purchased through Amazon caught fire inside a Mississippi home and the home was destroyed. In considering Amazon’s possible liability, the Mississippi Court asked whether Amazon was a “service provider” or a “marketplace.” In Mississippi, a finding that Amazon was a “service provider” would insulate it from the claim. However, if Amazon acted as a “marketplace,” it could be exposed by the common law to a negligent failure-to-warn claim. The Mississippi Court held that, because Amazon operated as a marketplace, the claim against it could go forward.

If similar facts arose in Louisiana, could Amazon or similar retailers be exposed under the LPLA? If an internet retailer established policies that forced a “true” manufacturer to negatively alter product quality, would the LPLA provide a remedy? For example, if an internet retailer sets a price ceiling, this artificial figure, especially if unreasonably low, might pressure a manufacturer to lower product safety. Is setting a price range the exercise of enough control or influence over the “design, construction, or quality of a product” to render internet retailers subject to suit under the LPLA? That is a question likely to be answered in cases to come.