Insight

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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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.

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

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.

Insight

Less Than Obvious State of “Open and Obvious” Defense

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