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The Supreme Court "Cleans Up" the Liability of Merchants for Slip-and-Falls Caused by Independent Contractors

Published on: November 23, 2015

In Thompson v. Winn-Dixie Montogomery, Inc., et al., 2015-C-0477, – So.3d —, the Louisiana Supreme Court recently held that a merchant is not solidarily liable for “slip and fall” damages caused by the actions of an independent contractor, a janitorial services company. Additionally, the Thompson Court addressed the best practices for an appeals court to raise an issue “sua sponte,” i.e, on its own.

The facts of the case are straightforward. The plaintiff slipped on a puddle of water in front of a meat case in a grocery store. The merchant, Winn-Dixie, kept a floor mat in front of the meat case to address any condensation. At the time of the fall, the mat was rolled up to permit the area to be mopped. Winn-Dixie had contracted with Southern Cleaning Services, Inc. (“SCSI”) to provide janitorial services. SCSI then subcontracted with KAP Cleaning Services, Inc. (“KAP”) to perform this work. KAP’s employee was the one who rolled up the mat and was preparing to mop the meat case area when plaintiff fell.

Plaintiff settled with SCI and KAP prior to trial. However, KAP’s “third party fault” was still an issue at trial. The trial court found KAP 70% at fault and Winn-Dixie 30% at fault.

Hoping to impact the fault allocation on appeal, the plaintiff argued that Winn-Dixie possessed an exclusive duty over floor safety and was liable under La. R.S. 9:2800.6 (the “Merchant Liability Statute”) because its manager did not conduct inspections every thirty minutes as required by Winn-Dixie policies, and because the floor mat was undersized. Additionally, plaintiff argued that Winn-Dixie should have been aware of the water in front of the meat case because of a history of alleged “leaks.”

In response to plaintiff’s arguments, Winn-Dixie offered the testimony of its refrigeration maintenance technician, who explained that the meat case does not circulate water and, therefore, cannot leak. However, the technician conceded that condensation could develop depending on the temperature and humidity levels in the store.

The appeals court accepted the plaintiff’s arguments and reversed. In assessing 100% fault to Winn-Dixie, the appellate court held that: (1) Winn-Dixie could not delegate the statutorily-imposed duties of the Merchant Liability Statute; and (2) Winn-Dixie possessed “operational control” of KAP’s employee. The appeals court decision suggested that the independent contractor could never be assessed fault in connection with floor safety because Winn-Dixie possessed the duty under the law.

The Louisiana Supreme Court in Thompson reversed the appeals court. While the act of contracting with an independent contractor does not eliminate the merchant’s statutory duties, the independent contractor may also be liable if there is evidence of negligence on its part. Accordingly, the Court held that all fault must be assessed because a merchant is not solidarily liable for the actions of an independent contractor.

The Thompson Court also addressed whether Winn-Dixie controlled and supervised KAP’s employee to the extent that it had “operational control.” On this subject, the Court noted that the issue of “operational control” was not pled, briefed or argued by any party and was instead raised sua sponte by the appeals court. In this context, the Court instructed that, if an issue is raised sua sponte, the best “practice [for the appeals court] is to invite additional briefing from the parties prior to rendering judgment.”

The Thompson Court felt that it was erroneous for the appellate court to raise an issue without briefing or input from the parties on that issue. Nevertheless, it also found that the evidence in the record was insufficient to establish that Winn-Dixie exercised operational control over KAP. After determining the Winn-Dixie was not responsible for the actions of KAP’s employee, the Court applied the “Watson factors” and determined that the trial court had reasonably apportioned fault based upon the record created at trial.

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Subcontractor’s Status as Plaintiff’s “Two-Contract” Statutory Employer Establishes Owner’s Immunity

In Louisiana, a “statutory employer” is entitled to protection from tort suit. With limited exceptions, the defense must be supported by a contractual provision declaring the defendant to be a statutory employer in a manner consistent with La. RS 23:1061. In Spears v. Exxon Mobil Corporation & Turner Industries Group, LLC, 2019-0309, 291 So. 3d 1087 (La. App. 1^st Cir. 2019), the defendant-premises owner successfully asserted the defense, notwithstanding multiple issues with respect to the nature and terms of the agreement and an alleged lack of privity with the plaintiff’s immediate employer.

In Spears, the plaintiff was injured when he slipped and fell on the production floor at the Exxon plastics plant. Spears filed suit against multiple parties, including Exxon, alleging it failed to provide a safe premises. The plaintiff worked for Poly Trucking who operated at Exxon under a contract with Polly-America. Poly-America, LP and Exxon, in turn, were signatories to an agreement entitled "STANDARD PURCHASE ORDER" which stated that Polly-America was to:

"… provide pickup/delivery service… For all containers of Polyethylene scrap as well as Polyethylene's scrap recovery vacuum service for a quoted amount of one dollar.”

The "STANDARD PURCHASE ORDER" also contained a section expressly recognizing Exxon:

“… as the statutory employer of employees of Poly America and subcontractors while such employees are engaged in the contracted work.”

Exxon filed a motion for summary judgment based upon its status as Spears’ statutory employer. The Trial Court granted the motion and dismissed Exxon with prejudice. On appeal, Spears argued that the contract between Exxon and Poly-America presented multiple issues of fact and law which necessitated a reversal of the summary judgment. The issues identified by the plaintiff included the following:

The agreement upon which Exxon relied was a “Contract of Sale,” not a “Contract for Services;”
The agreement specified that the signatory contractor (Poly America) was an "Independent Contractor;"
The plaintiff’s immediate employer (Poly Trucking) was neither a signatory to, nor specifically identified anywhere in the agreement; and,
Although the agreement designated Exxon as the statutory employer of the “employees of Poly America,” Exxon is not specifically designated as the statutory employer of the employees of Poly Trucking, the plaintiff’s immediate employer.

The First Circuit Court of Appeal expressly rejected each of the plaintiff's arguments.

First, the Court pointed out that the law does not mandate that the contract containing the statutory employment language be of any particular type. As such, whether the contract was considered a contract of sale or for services was irrelevant.

Secondly, the Court rejected the claim that contractual language describing Exxon as an “independent contractor” required a rejection of the statutory defense. The Spears Court reasoned that nothing in La. RS 23:1061 prevents an independent contractor from entering into a written agreement whereby the principal to that contract is recognized as the statutory employer of the employees of the contractor and its subcontractors.

Finally, the Court rejected the claim the defense should be rejected because the plaintiff’s immediate employer was not a party to the contract. As discussed in Spears, the law provides that the contract establishing statutory employment can be with either the plaintiff’s immediate employer or the plaintiff’s statutory employer, and Poly America qualified as the plaintiff’s statutory employer under the “two contract” theory because the work that Poly America subcontracted to the plaintiff’s immediate employer (Poly Trucking) was included within Poly America’s “STANDARD PURCHASE ORDER” contract with Exxon.

The Spears opinion highlights that the statutory defense should be maintained, even under unusual facts, when the requirements of La. RS 23:1061 are satisfied.

Insight

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

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.

Insight

Merchant Liability: No Evidence of Creation or Knowledge of Spill on Premises

In Cooper v. Albertsons Companies, LLC, 20-124 (La. App. 3 Cir. 10/21/20), 2020 WL 6163099, the Third Circuit Court of Appeals affirmed summary dismissal of plaintiff’s claims against a merchant and premises owner. The plaintiff, a vendor, made deliveries to a pharmacy on a regular basis. He slipped on a clear substance believed to be vinegar. The trial judge granted a defense summary judgment, and plaintiff appealed.

Because there was no evidence of Albertsons’ actual knowledge of the condition, the plaintiff had to demonstrate under Louisiana’s “slip and fall” statute, La. R.S. 9:2800.6, that it either created the condition or possessed “constructive knowledge” to defeat the motion for summary judgment.

No Creation of the Condition- In response to the motion for summary judgment, Cooper argued that the size and dispersal of the liquid provided circumstantial evidence sufficient to create a genuine issue of material fact regarding whether the merchant created the condition. The court noted that circumstantial evidence “must exclude every other reasonable hypothesis with a fair amount of certainty.” The plaintiff did not possess evidence to show that Albertsons’ employees stocked shelves that morning or even that any employee worked in the area before the fall. Simply, no facts supported an inference that Albertsons caused the spill.

No Constructive Knowledge- Cooper also failed to show how long the liquid was on the floor before he slipped. The liquid was clear, and no evidence established the spill was visible to anyone. No footprints, tracks, grocery-cart wheels, or the like were identified to suggest the length of time the liquid had been on the floor either.

Under the evidence presented, the Third circuit affirmed and found for the merchant. Handled by Keogh Cox attorneys, the Cooper case is a recent example that summary relief should be considered when plaintiff’s proof of a mandatory prerequisite to recovery in a “slip and fall” claim is lacking.