Louisiana Premises Liability Blog

Unlawful Entry on Farm Land, Even if Unintentional, Bars Recovery for Death of Motorist

David Melancon — Wed, 04 Apr 2012 10:55:00 -0600

William Daigre was killed in a single-vehicle accident when the tractor trailer he was operating left a rural roadway and rolled down a steep incline on the side of the road. Mr. Daigre’s family filed suit against the owner of the farm land adjacent to the roadway, the lessee of the land, and others for wrongful death. Mr. Daigre’s family alleged that the farming performed by the land owner and his lessee created a “drastic drop off” on the side of the road, which resulted in Mr. Daigre’s death.

The landowner and the lessee filed a motion for judgment on the pleadings on the basis of Louisiana Revised Statute 9:2800.4 (pdf), Louisiana’s limitation of liability statute for owners of farm or forest land. This statute provides, in part, that

"An owner of farm or forest land shall not be liable to any person, who unlawfully enters upon his farm or forest land, for damages for any injury, death, or loss which occurs while on the farm or forest land of the owner, unless such damage, injury, or death was caused by the intentional act or gross negligence of the owner.”

It was undisputed that the involved land was farm land so the only issues were whether Mr. Daigre’s had “unlawfully” entered the property, and if so, whether his death was caused by the intentional act or gross negligence of the land owner, or his lessee. The district court found that Mr. Daigre was unlawfully on the property and there was no evidence that the land owner intentionally caused his death or that his death resulted from the land owner’s gross negligence. Therefore, the court granted defendants’ motion, dismissing plaintiffs’ claims with prejudice. Plaintiffs appealed.

On appeal, the court addressed three issues: (1) was the area where the accident took place “farmland?” (2) was the decedent “unlawfully” on the property? (3) was Mr. Daigre’s death the result of an “intentional act” or “gross negligence” on the part of the owners/lessees? The appellate court readily found that the accident site was farmland. With respect to the second issue, there was no dispute that the decedent was driving off of the roadway when the accident occurred. However, plaintiffs contended that the momentary and inadvertent movement resulting in the decedent leaving the roadway was not an “unlawful act” as that term is defined in LSA-R.S. 9:2800.4 (pdf).

Defendants responded that Mr. Daigre had left the roadway, unlawfully, and entered their land adverse to laws requiring motorists to remain on the roadway, and that there were no allegations regarding an intervening or superseding cause forcing him from the road. The court, noting case law that held that it is unlawful to drive a vehicle on the shoulder of a road or in a roadside ditch, agreed with defendants’ position. The court further found that plaintiffs were unable to prove, and failed to argue, that there was any justifiable reason why Mr. Daigre left the road, as Mr. Daigre was deceased and there were no witnesses to the accident.

Finally, plaintiffs contended that the landowner’s removal of the foreslope adjacent to the shoulder of the road in order to create more farm land constituted an intentional act and/or gross negligence and precluded immunity under the statute. The court rejected this argument and found that the land owner did not consciously desire the physical results of their action and did not know that Mr. Daigre’s death was substantially certain to follow from the removal of the foreslope. Therefore, the appellate court affirmed the district court’s dismissal of plaintiffs’ case based on Louisiana’s limitation of liability statute for owners of farm or forest land.

Take-Away: Louisiana courts will not hesitate to enforce Louisiana’s limitation of liability statute for owners of farm or forest land, even when the result is the early dismissal of a plaintiff’s case.

This article was co-authored by Kerri Kane, an associate at Irwin Fritchie Urquhart & Moore, LLC.

Chain Of Fools - Examining the hidden dangers of safety devices

McDonald Provosty — Tue, 28 Feb 2012 09:50:42 -0600

Plaintiff Tommy Maddox was a delivery man who made deliveries to a grocery store owned by Defendant, Townsend & Sons, in Columbus, Mississippi. Prior to the accident at issue, Maddox had made deliveries to the store twice a week for eight months. On September 26, 2005, Maddox wheeled his delivery cart up a ramp to the top of the store’s concrete loading dock, which was situated approximately five feet off the ground. While waiting on the dock for his turn to unload, Maddox leaned or sat on a chain hanging about thirty inches high between two metal posts that supported the roof of the loading dock. The S-hook connecting the chain to the other post straightened under his weight and gave way. Maddox fell off the dock, breaking his pelvis and suffering other injuries.

Maddox and his wife brought suit against Townsend & Sons in the U.S. District Court for the Northern District of Mississippi. They alleged that Townsend & Sons failed to keep its premises reasonably safe and failed to warn Maddox of unknown dangers. Townsend & Sons filed a Motion for Summary Judgment, which requested that the Court dismiss the case outright on the basis that there were no factual issues and that the law favored dismissal rather than having the case be determined by a jury. The Court granted the defendant’s Motion and held the property to be reasonably safe. In doing so, it rejected the argument that the S-hook was the hazard and found the danger to be the five foot drop-off of the loading dock. The drop being obvious, the Court ruled that the premises were reasonably safe beyond any reasonable dispute of material fact because, under Mississippi law, premises owners do not have to warn against obvious hazards. The Maddoxes appealed this decision.

The United States Court for the Fifth Circuit began its analysis of the Maddox appeal by reciting the underlying Mississippi law with regard to premises owners. Under the circumstances of this case, Maddox was deemed an “invitee.” The Court further instructed that a premises owner is not an insurer of the safety of invitees, but owes a duty of reasonable care to maintain the premises in a reasonable safe condition. This duty also includes an ancillary duty to warn invitees of any dangerous conditions not readily apparent which the owner knew, or should have known, and a concomitant duty to conduct reasonable inspections to discover dangerous conditions existing on the premises. In similar cases, courts employ a two-part test requiring two separate inquiries: (1) whether the premises owner kept the premises reasonably safe, and (2) whether the owner warned of hidden dangers of which the owner knew or, in the exercise of reasonable care, should have known. A breach of either part supports a negligence claim against the premises owner. Importantly, the Court noted that these Mississippi liability principles are consistent with the approach followed in other states.

Maddox claimed that Townsend & Sons breached both duties when it (1) failed to keep its property reasonably safe by inspecting and replacing the S-hook, and (2) to warn him about the dangerous S-hook about which it should have known. Townsend & Sons stated that the purpose of the chain was to stop someone from backing off the dock when maneuvering a load, but the Court’s response was that a safety device that merely serves the intended purpose does not control the inquiry into “reasonable safety.” The Court reasoned that if a premises owner used a safety device to protect invitees from one kind of hazard but in so doing created a hazard of a different kind, then an issue of fact would remain of whether the owner should have anticipated that risk. The Court analogized a situation whereby a premises owner places safety reflectors on an entrance way to safely guide vehicles, but creates a tripping hazard for pedestrians.

The Court also examined whether Townsend & Sons failed to warn Maddox of the danger posed by the chain and five foot drop. One issue it discovered was whether the defendant should have anticipated that the chain posed as a convenient place for deliverymen to sit while waiting their turn on the busy loading dock, and whether they should have anticipated placing chairs on the dock or else directed the waiting deliverymen to an area that did not place them in harm of a five foot drop. The Court concluded that the evidence and testimony created an issue of fact as to the reasonable safety of the premises, and, thus, summary judgment was not appropriate.

Take Away: Premises owners owe invitees the duty to maintain their premises in a reasonably safe condition, and warn them of any hidden dangers; however, in so doing, premises owners must be careful that their safety devices and procedures do not create hidden dangers of their own.

Oh Craps: Casino Patron Who Slipped on Dice Is Out of Luck

David Melancon — Thu, 19 Jan 2012 15:13:17 -0600

Patricia Richardson was visiting Boomtown Casino when she slipped and fell on a die on the floor. The accident occurred while Richardson was walking by the craps table and talking to her brother. Richardson filed suit against the casino operators, alleging that she sustained injury as the result of the fall – Richardson v. Louisiana-1 Gaming, et al. The defendants moved for summary judgment, asserting that Richardson could not show that they had breached their duty of care. Defendants also argued that they did not have actual or constructive knowledge of the die on the floor before Richardson’s fall. The trial court granted defendants’ motion on the grounds that Richardson assumed the risk. The trial court reasoned that casino patrons have a heightened duty to look for dice on the floor near a dice table.

On appeal, Richardson argued that the assumption of risk doctrine had been abolished in Louisiana. She also asserted that there was an issue of fact as to whether the accident was foreseeable. The appellate court agreed with Richardson that the assumption of risk doctrine had been abolished in Louisiana. But the court upheld the ruling of the trial court on the ground that the damage-causing condition had not existed for a period of time before Richardson fell. In doing so, the appellate court relied on the undisputed testimony of the games supervisor at Boomtown, Jada Muhammad. Muhammad testified that the die was thrown by another player, bounced off the table, and landed on the floor. Richardson stepped on the die immediately after it hit the floor. Because Richardson stepped on the die just after it landed, the court reasoned that the defendants did not have constructive notice of the condition as required under La. Rev. Stat. § 9:2800.6 (pdf). Thus, Richardson could not prevail on her negligence claim.

Take-Away: A premises owner is not liable where the condition that causes the plaintiff’s injury does not exist for some period of time before the occurrence.

This article was co-authored by Camala Capodice, a member of Irwin Fritchie Urquhart & Moore LLC.

"You'll Shoot your Eye Out" Defogging Premises Liability for Hosts of "Dangerous" Sporting Events

David Melancon — Tue, 13 Dec 2011 15:09:00 -0600

Jason Berry took part in a paintball game hosted by his adult friend Joseph Dvorak. The event took place on property owned by Joseph’s parents. Prior to the commencement of the game, Joseph did not provide any instructions or warnings to the participants about how to properly defog a paintball mask. Shortly after the game began, Mr. Berry’s mask began to fog up and in an effort to defog the mask he removed it from his face. While his mask was raised, Mr. Berry was hit in the face by a paintball, causing injury to his right eye.

Mr. Berry subsequently filed suit against the Dvoraks and their son Joseph in the case Berry v. Lynch alleging that the Dvoraks and Joseph negligently failed to ensure that the proper safety procedures, inspections, and equipment were in place to guarantee that the paintball game was conducted in a reasonably safe manner. In response, the Dvoraks and Joseph filed motions to have the case dismissed. The Dvoraks contended that they were not liable because Mr. Berry failed to show that their conduct met the heightened standard of “recklessness,” as opposed to “simple negligence.” Joseph argued that he had no duty to warn Mr. Berry about how to properly use his safety mask because Mr. Berry, by his admission, knew that the mask was necessary for his protection. In his deposition, Mr. Berry admitted that he knew he needed eye protection to participate in a paintball game.

The trial court granted the Dvorak’s motion for summary judgment because Mr. Berry was unable to factually support his allegation that the Dvoraks had acted recklessly. The court, however, denied Joseph’s motion on the grounds that he had a greater duty to Mr. Berry because the game was his idea. At trial, the jury entered a verdict in favor of Joseph.

On appeal, Mr. Berry argued that the trial court erred in requiring him to prove that the Dvoraks’ conduct was reckless, rather than negligent, because the relevant case law requiring reckless conduct only applied to situations where defendants were co-participants with the plaintiff in an informal recreational sport and there was no dispute that the Dvoraks did not participate in the game. The appellate court agreed that the standard of negligence, not the heightened standard of reckless conduct, applied.

The court then addressed the issue of whether under the negligence standard the defendants owed a duty to Mr. Berry to provide him with instructions on how to properly defog his paintball mask. Under the general rule for premises liability, landowners are only liable to social guests for foreseeable injuries if: “the dangerous condition is unknown to the guest and the guest could not have discovered the danger himself; the host fails to exercise reasonable care to make the premises safe, or to warn the social guest of the danger; and the guest has no reason to know of the risk involved.” Parks v. Rogers. The court noted that Mr. Berry knew the risks of participating in paintball, was aware of the purposes of the mask, and knew that he would risk harm by taking it off. In light of these facts, the court found that the Dvoraks did not owe Mr. Berry a duty to instruct him on how to properly defog his mask and provide an explanation of the dangers of improper defogging. The court then affirmed the lower court’s grant of summary judgment in favor of the Dvoraks.

Take-Away: Under New Jersey law, a landowner’s status as a participant in a recreational activity can determine the standard of care owed to his social guests who take part in that activity. In addition, a landowner does not owe a duty to his guests to warn them of risks of which they are aware and which are inherent in the involved activity. The comparable Louisiana State laws that protect landowners from recreational use of their property are LA R.S 9:2791 (pdf) and LA R.S. 2795 (pdf).

This article was co-authored by Jonathan Phelps, a 2011 summer associate at Irwin Fritchie Urquhart & Moore LLC.

The Mooty Blues: Plaintiff's failure to identify what caused tripping injury leaves premises owner singing!

David Melancon — Tue, 08 Nov 2011 11:27:02 -0600

After shopping for a gift for her great-granddaughter’s wedding, 93-year-old Emelda Mooty tripped and fell in the parking lot of a shopping center in Harvey, Louisiana. Mrs. Mooty subsequently filed a lawsuit against the shopping center—Mooty, et al. v. Centre at Westbank LLC,. In the suit, Mrs. Mooty alleged that she tripped over an unpainted tire stop that was located in the handicapped parking portion of the parking lot, asserting that the tire stop was a “tripping hazard.”

After the plaintiffs’ depositions had been taken, the defendants filed a motion for summary judgment, claiming that there was no genuine issue of material fact, and asserting that, as a matter of law, defendants were entitled to judgment in their favor. Specifically, the defendants argued that, although Mrs. Mooty speculated that she tripped on the tire stop, she actually had no idea what caused her fall. The plaintiffs opposed the motion, arguing that defendants breached their duty to Mrs. Mooty and that issues of material fact remained unresolved. Furthermore, the plaintiffs supported their opposition with a report from an engineering and safety expert who opined that the tire stop did not conform to the requirements of the Americans with Disabilities Act (ADA). After a hearing on the motion, the trial court granted summary judgment in favor of the defendants.

On appeal, the plaintiffs argued not only that there was sufficient evidence to conclude that the defendants were liable for Mrs. Mooty’s injuries, but also that the trial court committed error by disregarding the ADA. The appellate court noted that, under Louisiana law, the potential liability of a defendant under these circumstances must be determined by a “duty-risk analysis” and that the essential first element of this analysis is causation. The court further noted that the deposition testimony of Mrs. Mooty failed to show that the tire stop was related to her fall. It pointed to specific statements in Mrs. Mooty’s deposition, such as, “I tripped on something, but I don’t know what it is.” The court concluded that because plaintiffs failed to prove the element of causation, the issue of whether the tire stop complied with the ADA requirements was irrelevant. The court ultimately affirmed the trial court’s grant of summary judgment and dismissed the plaintiffs’ case.

Take-Away: Even if a potential plaintiff falls and is injured on a landowner’s premises, the plaintiff must be able to establish what exactly caused the fall in order to succeed on a claim against the landowner. If the plaintiff cannot prove that element of the claim, the landowner will be entitled to judgment as a matter of law.

This article was co-authored by Kelly Brilleaux, an associate at Irwin Fritchie Urquhart & Moore LLC.

Wal-Mart Shopper Cannot Escape Her Burden of Proof

David Melancon — Fri, 07 Oct 2011 10:55:00 -0600

Lisa Taylor filed suit against Wal-Mart seeking to recover for injuries she allegedly sustained after she slipped on a wet substance on the floor near the checkout area of the Wal-Mart in New Orleans. Ms. Taylor’s lawsuit is governed by the Louisiana Slip and Fall Statute (pdf). Under this statute, Ms. Taylor is required to prove the following: (1) that a condition presented an unreasonable risk of harm to her and that risk of harm was reasonably foreseeable; (2) that Wal-Mart either created or had actual or constructive notice of the condition that caused the damage, prior to the accident; and (3) that Wal-Mart failed to exercise reasonable care. The Louisiana Slip and Fall Statute clearly imposes the burden of proof on Ms. Taylor. Therefore, she is required to show that either Wal-Mart actually knew of the existence of the liquid on which she allegedly slipped or that the liquid existed for some time period prior to her fall such that had Wal-Mart been exercising reasonable care, it would have discovered the liquid.

Wal-Mart filed a motion for summary judgment relying on the fact that, at her deposition, Ms. Taylor testified that she did not see a clear liquid on the floor and that she did not know how long the substance was on the floor before she slipped on it. Wal-Mart further relied on the fact that Ms. Taylor otherwise had no evidence that a liquid on the floor caused her to slip; nor did she have evidence demonstrating the length of time that the alleged liquid had been on the floor prior to her fall.

Ms. Taylor filed her own motion for summary judgment relying on a video recording of the location in which she fell covering the hour before she allegedly slipped and fell. Ms. Taylor argued that the video conclusively showed that for the hour prior to her fall, Wal-Mart made no effort to clean the liquid substance on which she slipped. She further argued that because the video doesn’t reflect the occurrence of a spill, the spill must have been in place before the commencement of the video recording, which would be over an hour before her fall. By making this argument, Ms. Taylor attempted to shift the burden of proof to Wal-Mart to prove that a liquid was not located on the ground. This burden shifting is a clear contravention of the Louisiana Slip and Fall Statute.

The court denied Ms. Taylor’s motion for summary judgment and granted Wal-Mart’s motion for summary judgment relying on the following facts: (1) the recording did not show visual evidence of a wet substance on the floor, (2) the recording only showed the passage of time, (3) the recording did not show other people slipping or taking care to avoid a liquid, and (4) the recording did not reflect that any person attempted to clean or secure the area. Accordingly, the court determined that Ms. Taylor’s argument would require the court to draw a conclusion that is not reasonably supported by the evidence, and, therefore, failed to satisfy Ms. Taylor’s burden of proving that the liquid existed. Because Ms. Taylor failed to meet her burden of proof, Wal-Mart was entitled to a judgment as a matter of law.

Take-Away: In a slip and fall action, the plaintiff always bears the burden of proving that an unreasonable risk of harm existed. The plaintiff cannot attempt to shift the burden of proof by forcing the defendant to prove that an unreasonable risk of harm was not present.

This article was co-authored by Lizzi Richard, an associate at Irwin Fritchie Urquhart & Moore LLC.

Tomb It May Concern: Comparative Fault Nixes 100% Liability For Unreasonable Risk Of Harm

David Melancon — Tue, 13 Sep 2011 15:33:26 -0600

While leaving a co-worker’s funeral with a friend in Moreauville, Louisiana, Arlene Chambers tripped on a section of sidewalk and fell. As a result of the accident, Ms. Chambers suffered a fracture of the radius of her right arm, which required surgery. Although the surgery and subsequent physical therapy were successful, Ms. Chambers later experienced problems with her both her right and left shoulders, which she attributed to the fall due to prolonged immobility of her wrist. Ms. Chambers ultimately filed a lawsuit against the Village of Moreauville —Chambers v. Village of Moreauville.

At the trial court level, the plaintiff called a number of experts to testify, including experts in the fields of civil engineering, economics, and vocational rehabilitation. After the bench trial, the court held that the Village of Moreauville was 100% at fault and awarded damages to Ms. Chambers for past and future pain and suffering, hedonic damages, future wage loss, past medical expenses, future medical expenses, and past wage loss. The Village appealed.

On appeal, the third circuit first addressed the issue of comparative fault. It noted that pedestrians are obligated to observe their path and remain mindful that every sidewalk contains irregularities. Furthermore, it noted that a condition that is “obvious” and “easily avoidable” cannot be considered to present an unreasonable risk of harm, which is a key element in any premises liability case. The court held that although there was a reasonable basis for the trial court’s conclusion that the sidewalk presented an unreasonable risk of harm, the record did not reasonably support a finding that Ms. Chambers was entirely free from fault. In particular, the court noted Ms. Chambers’ testimony that her attention was diverted at the time of the fall due to a conversation with a friend. Thus, the appellate court allocated 10% of the fault to Ms. Chambers and 90% of the fault to the Village.

Next, the court addressed whether the trial court was manifestly erroneous in its award of damages for future wage loss and future medical expenses. With regard to the award of future lost wages, the third circuit held that there was no evidence in the record that Ms. Chambers more probably than not would lose her job due to her injuries. Thus, it held that the award of future lost wages was too speculative and was therefore manifestly erroneous. On the issue of future medical expenses, the court held that, based on the history of Ms. Chambers’ treatment and the costs associated with that treatment, the trial court’s award of $10,000 was reasonable and therefore not manifestly erroneous.

Finally, the appellate court addressed whether the trial court had abused its discretion in awarding Ms. Chambers general and hedonic damages, which consisted of $200,000 for past and future pain and suffering and $25,000 for loss of enjoyment of life. The third circuit analyzed these awards separately. With regard to the award of general damages for past and future pain and suffering, it held that, based on Ms. Chambers’ initial and subsequent injuries resulting from the fall, the award was reasonable. The third circuit also held that Ms. Chambers’ injuries had negatively impacted the activities that she enjoyed outside of her employment and, as such, the trial court did not abuse its discretion in its award of hedonic damages.

Take-Away: Even if a condition presents an unreasonable risk of harm, courts are willing to assess a portion of fault to a plaintiff for not exercising “ordinary care.” So, property owners should always be mindful of the potential defense of comparative fault on the part of a plaintiff.

This article was co-authored by Kelly E. Brilleaux, an associate at Irwin Fritchie Urquhart & Moore LLC

Steppin On A Crack May Break Your Mother's Back But It Will Not Break The Municipality's Bank.

David Melancon — Thu, 18 Aug 2011 13:56:11 -0600

On the morning of June 15, 2005, Ms. Enola Wiltz and her husband brought their son to City Hall in Breaux Bridge, Louisiana to renew the son’s driver’s license. As Mrs. Wiltz was walking to the building, she stumbled, but did not fall, over a beveled crack in the sidewalk. As a result of the stumble, Mrs. Wiltz allegedly sustained leg and back injuries and incurred approximately $100,000 in medical expenses. Mr. and Mrs. Wiltz subsequently filed suit against the City of Breaux Bridge and its insurer.

Following a bench trial, the judge ruled that the Wiltzes failed to prove their case because they did not submit sufficient evidence that the crack in the sidewalk posed an unreasonable risk of harm. Furthermore, there was no evidence to demonstrate that the City knew or should have known about the crack in the sidewalk prior to the accident. The Wiltzes then appealed the trial court’s judgment, contending that it was clearly wrong in failing to find that “a beveled cracked sidewalk, covered and disguised by grass growth on a major sidewalk leading directly into the main organ of commerce for the City causing plaintiff’s accident and injuries did not create an unreasonable risk of harm.”

Under Louisiana Revised Statutes 9:2800 (pdf), Louisiana’s Public Entity Liability Statute, in order to prevail at trial, the Wiltzes had to prove that (1) the City owned or had custody of the sidewalk; (2) the sidewalk was defective in that it created an unreasonable risk of harm to others; (3) the City had actual or constructive knowledge of the defect and failed to take corrective action within a reasonable time; and (4) Mrs. Wiltz’s injuries were caused by the defect. The only issues before the appellate court were elements 2 and 3, i.e. whether the sidewalk was defective and the knowledge (actual or constructive) of the city about the crack. In a unanimous decision, the Third Circuit, in the case Wiltz v. ABC Ins. Co., affirmed the ruling of the trial court.

As a preliminary matter, the court noted that under LSA-R.S. 9:2800 a municipality is not required to maintain its sidewalks in perfect condition. Rather, plaintiffs had the burden of proving that that the sidewalk at issue was not maintained in a reasonably safe condition for persons exercising ordinary care and prudence. In making this determination, all relevant moral, economic, and social considerations must be weighed. In affirming the trial court’s conclusion that the sidewalk did not pose an unreasonable risk of harm, the appellate court relied on several factors. First, courts in two earlier cases found that larger cracks did not pose unreasonable risks of harm. Second, there was no evidence that anyone had complained about the crack before the accident. To the contrary, two public officials, including the mayor, testified that they had no knowledge of prior complaints about and/or injuries involving the crack. Finally, the vegetation growing out of the crack didn’t obscure the entire crack, but actually indicated in itself the existence of a crack.

Take-Away: Plaintiffs have a heavy burden in cases against governmental entities to prove that cracks in their sidewalks pose an unreasonable risk of harm. The size of the crack, the degree it is obscured from view and the complaint and injury history related to the defect are all part of the analysis.

This article was co-authored by Chris Irwin, an associate at Irwin Fritchie Urquhart & MooreLLC

Forgetful Workman Loses Claims After Backing Up Into Open And Obvious Manhole

Ed Trapolin — Mon, 13 Jun 2011 09:39:22 -0600

In Fluence v. Marshall Bros. Lincoln-Mercury Inc., Larry Fluence, a worker who was part of a paving crew that was pouring asphalt pavement at the Marshall Brothers car dealership’s lot, fell into an open manhole and severely injured his back. Mr. Fluence sued the property owner, Marshall Brothers, and the subcontractor that installed the underground drainage system and left the manhole cover off, Labiche Plumbing Inc. (Labiche).

Both Marshall Brothers and Labiche moved for summary judgment on the grounds that (1) they did not breach a duty to Mr. Fluence and (2) the open manhole did not present an unreasonable risk of harm. It was undisputed that Mr. Fluence was part of a crew that was hired to pave around the new drainage system, including the manhole, and that he had inspected the property on the morning of the accident and was aware of the open manhole. Moreover, the manhole was clearly visible from 20 feet away. Given these facts, Marshall Brothers and Labiche argued that the manhole was open and obvious and did not present an unreasonably dangerous condition to Mr. Fluence. In response, Mr. Fluence contended that he forgot about the hole later in the day when he was walking backwards in the parking lot and “smoothing off” the asphalt. And, although he should bear some fault for his carelessness, fault should also be assigned to Marshall and Labiche. The trial court disagreed and granted summary judgment in favor of Marshal Brothers and Labiche.

On appeal, Mr. Fluence argued that Marshall Brothers breached a duty to protect him or to warn him of a known dangerous condition while he was on the property. He further argued that Labiche had a duty to warn him of the condition, replace the manhole cover, or place a barrier to prevent people from getting near the hole. The appellate court noted that although a landowner owes a duty to people entering its premises to discover unreasonably dangerous conditions and to either repair them or warn of their existence, there is no duty to warn of an open and obvious condition. Quoting Louisiana case law, the court stated that whether a condition is unreasonably dangerous is determined by considering: “(1) the utility of the complained-of condition; (2) the likelihood and magnitude of the harm (which includes the obviousness and apparentness of the harm); and (3) the nature of the plaintiff’s activities in terms of its social utility or whether it is dangerous in nature.” Finding that Mr. Fluence admitted knowing of the open manhole prior to the accident and that his job entailed patching the holes up to and around the open manhole, the court held that Marshall Brothers and Labiche owed no duty to repair the condition or warn Mr. Fluence about the open and obvious condition. Accordingly, the appellate court affirmed the trial court’s ruling.

Take-Away: Property owners who hire workmen to perform work and repairs on their property may avoid liability for injuries suffered by the workmen if the injury results from an open and obvious condition, especially when the workmen acknowledge that they were aware of the condition before the accident occurred.

Issues Of Fact As To Whether Placement of Highway Billboard Is An Unreasonably Dangerous Condition for Motorist Saves Claims Of Paralyzed Mother Of Three Minor Children.

David Melancon — Tue, 07 Jun 2011 13:40:18 -0600

The case Falcon v. Louisiana Dept. of Transportation arises out of a motor vehicle accident involving a mother and her three children. On the day of the accident the mother was driving her vehicle with her three minor children as passengers. When she approached a T-shaped intersection, she allegedly ran a stop sign and then after attempting to turn left her vehicle was broadsided by a truck traveling on the intersecting highway. Although her children only sustained minor injuries, she suffered a severe closed head injury, which ultimately required that she be legally interdicted under the curatorship of her father “Plaintiff”.

Plaintiff filed a personal injury action on behalf of his daughter and her three children alleging that defendants’ placement of a large billboard at an intersection of two roads constituted an unreasonably dangerous condition to motorists. Named as defendants were the State of Louisiana, through the Department of Transportation and Development (“DOTD”), the owner of the land on which sign was erected and its insurer, as well as the owners of the sign and their insurers. The billboard in question measured sixteen (16) feet in width by approximately eight (8) feet in height and was alleged to have extended two feet into the State's right-of-way along La. Hwy. 1 in violation of La. R.S. 48:461.2. This statute provides, in part:

No outdoor advertising shall be erected or maintained within six hundred sixty feet of the nearest edge of the right of way and visible from the main traveled way of the interstate or primary highways in this state....

The defendants filed a motion for summary judgment asserting that the entire lawsuit should be dismissed because the placement of the billboard did not present an unreasonably dangerous condition to motorists and because the mother failed to act as a reasonable motorist. The trial court granted summary judgment as to the landowner, its insurer and the DOTD, but denied the motion as to owners of the sign and their insurers. With respect to those entities, the court found that there existed a genuine issue of material fact as to whether the billboard contributed to the accident. Plaintiff appealed the trial court’s dismissal of the landowner, its insurer and the DOTD on the basis that it was not appropriate to rule as a matter of law that an uncontested sight obstruction did not constitute an unreasonably dangerous condition. The only issues before the appellate court were whether there were genuine issues of material fact (1) as to whether the billboard presented an unreasonably dangerous condition and (2) as to whether the mother failed to act as a reasonably prudent motorist under the circumstances.

The appellate court first considered the issue of whether the billboard presented an unreasonably dangerous condition. The court noted that it was undisputed that at a certain point along the highway, the placement of the billboard obstructed the view of motorists. Thus, the only issue was whether the obstruction was sufficient to constitute an unreasonably dangerous condition. Finding that this inquiry was inherently a factual determination, the appellate court reversed the finding of the trial court and held that there were genuine issues of fact as to whether the billboard obscured the view of the mother thereby creating an unreasonable risk of harm.

The court next addressed the issue of whether the mother failed to act as a reasonably prudent motorist under the circumstances. Defendants argued that to defeat summary judgment Plaintiff had to overcome two separate presumptions: (1) that a left-turning motorist involved in a collision that occurs across the center line is at fault in causing the accident; and (2) that a motorist who runs a stop sign resulting in a collision is similarly at fault in causing the accident. Plaintiffs countered that there were factual disputes with respect to each contention put forth by defendants. First, the other driver in the accident testified that he did not know which direction the mother intended to travel and the investigating officer refused to state that she was definitively attempting to execute a left-hand turn. Second, one of the mother's daughters, who was a passenger in vehicle, testified that just prior to the accident her mother stopped at the stop sign. Lastly, Plaintiffs contended that it was the placement of the billboard that caused the accident – not the mother’s alleged failure to act in a reasonably prudent manner. The appellate court found that these issues of fact were sufficient to defeat defendants’ summary judgment motion and reversed the ruling of the trial court.

Take Away: Courts are reluctant to uphold the dismissal of a case via summary judgment when there are arguable issues of material fact as to the events and circumstances surrounding an accident, especially where a plaintiff has sustained catastrophic injuries.

This article was co-authored by John Garrett, an associate at Irwin Fritchie Urquhart & Moore LLC.

Recreational Riding of Oil Well Pump is not a Reasonably Anticipated Use of the Product

McDonald Provosty — Tue, 19 Apr 2011 13:49:35 -0600

This litigation arises from an accident that occurred in rural Rapides Parish on March 9, 2004, when thirteen year old Henry Goudeau climbed onto the moving pendulum of an oil well pump and attempted to “ride” the pendulum. As the pendulum continued its upward motion, Henry’s pants became entangled in other parts of the pump, resulting in severe personal injuries.

Henry’s mother, Robbie Payne, subsequently filed suit against the manufacturer of the pumping unit, Lufkin. In response, Lufkin moved to have the case summarily dismissed, arguing it was not liable for Henry’s injuries because it did not “anticipate” at the time it designed and manufactured the product in the 1950s that it would be “used” for recreational purposes, like “riding,” by persons, including teenagers. Ms. Payne opposed Lufkin’s argument by contending that it was a foreseeable risk children would attempt to play on the oil well pump, and she relied on similar cases from Louisiana, California, Texas, and Oklahoma in which children had been injured while attempting to “ride” on an oil well pumping unit.

The trial court agreed with Lufkin and dismissed Payne’s suit. The court found that Ms. Payne failed to present sufficient evidence to show the pump was unreasonably dangerous in itself and for the purpose for which it was intended – pumping oil. Additionally, the court reasoned that, since Henry was 13 at the time of his accident, he should have known not to attempt to ride the machine. Thus, the court ruled that the pump was not unreasonably dangerous for its reasonably anticipated use because its anticipated use was for pumping oil and not recreational riding. Ms. Payne appealed.

The trial court’s dismissal of Ms. Payne’s suit was reversed on appeal after the appellate court concluded that the evidence presented by Ms. Payne was not “insufficient to allow a reasonable juror to conclude Lufkin … should have expected an ordinary person in the same or similar circumstances to use or handle the pumping unit in this way.” Lufkin then appealed to the Louisiana Supreme Court.

The legal analysis concerning whether the Lufkin pump was unreasonably dangerous derives from the Louisiana Product Liability Act (“LPLA”). In accordance with its provisions, a manufacturer’s responsibility to a party injured by its product is set forth in La.Rev.Stat. 9:2800.54(A), (pdf) which provides:

The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.

The Supreme Court began its analysis of this issue with the definition of “reasonably anticipated use” under the LPLA, which is defined as “a use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.” What constitutes a “reasonably anticipated use” is ascertained from the point of view of the manufacturer at the time of manufacture, and Louisiana courts have determined that the words “reasonably anticipated” effectively discourages the jury from using hindsight. Additionally, this phrase also conveys that the manufacturer is not responsible for every conceivable foreseeable use of its product. Accordingly, the Supreme Court determined that – pursuant to the LPLA – Ms. Payne had to make a sufficient evidentiary showing that, at the time of manufacture, Lufkin should have reasonably expected an ordinary user or consumer of its pumping unit would use the pump as a “ride.”

The Court found that the evidence presented to the trial court by both Ms. Payne and Lufkin established that the pump was manufactured solely for the purpose of extracting oil from the ground, and not for an amusement park ride. Thus, Ms. Payne failed to adequately support her contention that Henry’s accident arose from a reasonably anticipated use of the Lufkin pumping unit. Therefore, the Supreme Court reversed the appellate court and re-instated the trial court’s summary dismissal of Ms. Payne’s action against Lufkin.

Take-Away: Under the LPLA, the reasonably anticipated use of a product is analyzed from the manufacturer’s perspective at the time of its manufacture rather than every conceivable foreseeable use of a product in hindsight.

Can't Blame It On The Rain

David Melancon — Thu, 31 Mar 2011 15:30:30 -0600

The case Billiot v. Big Wheels Travel Center demonstrates how a plaintiff needs to offer some evidence of a vice or defect in a property in order to survive a motion for summary judgment. Ms. Billiot alleged that she injured her right arm when she slipped and fell on an access ramp while walking into the Big Wheels Travel Center. In response to Ms. Billiot’s claims, Big Wheels filed a motion for summary judgment. In support of the summary judgment motion, Big Wheels submitted photographs depicting the ramp and affidavits of store employees confirming that there was nothing defective about the ramp at the time of the accident. Other than establishing that rain had fallen on the area where she slipped and fell and that the area was wet, Ms. Billiot offered no evidence of any vice or defect in the property. Given this lack of evidence, the trial court granted Big Wheel’s motion for summary judgment and in doing so noted that rain on a walkway in and of itself does not present an unreasonable harm.

Take-Away: Rain on an access ramp or walkway in and of itself does not constitute a vice or defect. In order to avoid summary dismissal of their case, plaintiffs must come forth with some evidence that there is a problem, vice or defect in the property.

Plaintiff Lets Case Roll Away

David Melancon — Tue, 29 Mar 2011 15:03:07 -0600

Bertha Gruver went shopping using a motorized cart provided by the Kroger Grocery Store. While shopping, Ms. Gruver partially dismounted from the cart and while one foot was on the cart and the other was on the ground she reached for a can on a shelf. At that time, according to Ms. Gruver, the cart rolled forward and caused her to fall.

Ms. Gruver filed suit against Kroger and John Duke, the store manager on duty at the time of the accident, alleging negligence in supervising and providing instructions for use of the cart. Ms. Gruver also sued the manufacturer of the cart under the Louisiana Product Liability Act (“LPLA”) (pdf) . The defendants filed a motion for summary judgment to dismiss all of Ms. Gruver’s claims, asserting that the accident and injuries were caused by Ms. Gruver’s own actions and that Ms. Gruver could not meet her burden of proof. The trial court granted defendants’ summary judgment motion and Ms. Gruver appealed.

The appellate court affirmed the judgment of the trial court in its entirety. In reaching its decision, the court noted that Kroger’s manager tested the cart’s brakes immediately after the accident and found no problems. The cart was then inspected by the store’s mechanic, who likewise found no problems with the cart. Although Ms. Gruver’s expert engineer theorized that the accident could have been caused by a safety switch on the seat, when he actually inspected and tested the cart the switch was working properly. Furthermore, plaintiff’s engineer testified that the cart was functioning as originally delivered and that the braking system, while an older system, was reliable. The Court found that the evidence presented by Ms. Gruver only suggested a potential for harm, not an actual harm, and therefore did not constitute an unreasonable risk of harm under Louisiana’s Merchant Liability Statute (pdf).

The appellate court also rejected Ms. Gruver’s claim that Kroger failed to provide operating instructions for the cart or train employees to provide such instructions. The appellate court noted that Ms. Gruver’s deposition testimony showed that she did not ask for instructions, read the instructions provided, or ask any Kroger employee for instructions to use the cart.

The Court then reviewed Ms. Gruver’s product liability claims, which are governed by the Louisiana Product Liability Act (LPLA). Ms. Gruver asserted two theories of liability under the LPLA; namely, unreasonably dangerous in design and failure to warn. With respect to the defective design claim, in order to satisfy her burden of proof Ms. Gruver would have to establish that there existed an alternative design available at the time of manufacture of the cart that would have prevented her fall and that the gravity of her potential injury outweighs the burden of adopting the alternative design. In support of her design defect claim, Ms. Gruver’s expert engineer opined that a ‘skirt guard’ on the grocery cart would have prevented the cart from rolling over people’s feet and that a dual electric/manual braking system would have stopped the cart immediately when the throttle is released. However, Ms. Gruver failed to present any evidence that the alternative design and braking system were available at the time the grocery cart was built. Nor was there any evidence that the risk of harm outweighed the cost of adopting the alternative design and braking system. As a final matter, the Court observed that Ms. Gruver’s engineer’s acknowledged that the cart’s brakes were “reliable” and that tests with a newer cart model did not show any “noticeable differences” in the resistance to rolling when the throttle is released.

The Court then turned to Ms. Gruver’s failure to warn claim. As a threshold matter, the Court noted that Ms. Gruver presented no evidence pertaining to the adequacy of the cart’s warning label. Additionally, Ms. Gruver admitted that she did not read the warnings and therefore she simply could not demonstrate that a different warning would have resulted in her decision not to use the cart. Given these facts, the court found that Ms. Gruver failed to satisfy her burden of proof as to her failure to warn claim.

Take-Away: If motorized carts are made available to business customers, appropriate operating instructions should be openly available to the customers. Also, when a customer is injured while using a motorized cart, immediately following the accident the cart should be tested by the manager on duty and then as soon as possible by a qualified mechanic or engineer to document the condition of the cart at the time of the accident.

This article was co-authored by Jeremy Bolton, an associate with Irwin Fritchie Urquhart & Moore LLC.

Three is Better than Two - Store's Placement of Third Mat in High Traffic Area was Reasonable

David Melancon — Thu, 27 Jan 2011 13:08:59 -0600

On a day when a hurricane was passing over the area, Dianne Milton went to the Hurry Back convenience store to purchase some items. The store typically placed a single 4x6 commercial grade rubber-backed mat on each side of the entrance. Because of the weather conditions, an additional mat, 3x10 in size, was placed next to the inside 4x6 mat, roughly perpendicular to the door.

Ms. Milton entered the store without incident and stood in line for a few moments prior to reaching the cashier. After her purchase, Ms. Milton turned to her right and started to move toward the door when her right foot caught the edge of the 3x10 mat, causing her to fall to the ground. She then quickly got to her feet and left the store. The entire incident was captured on the store’s surveillance cameras. The video showed that there were no bumps or wrinkles in the involved mat. Ms. Milton originally alleged that the mat was buckled where she tripped on it. However, after viewing the video, she revised her claim to allege that her foot slipped under the floor mat.

After a three day trial, the trial judge granted judgment in favor of the store owner and Ms. Milton appealed the decision. Ms. Milton’s lead witness at trial was Bobby Urban, who was accepted as an expert in the areas of mat construction and the intended use of various types of mats in ordinary circumstances. Mr. Urban testified that placing a mat so close to the checkout counter was hazardous because most people, after making their purchase, pivot and drag their feet toward the door. He added that if a mat was necessary, it should have been placed 3 or 4 feet away from the counter or flush with it. Mr. Urban did, however, agree that during a major rain event, he would place more mats in areas where water was being tracked in.

On appeal, the court in Milton v. E&M Oil Company & State Farm Fire & Casualty Co. considered whether the store owner was liable for Ms. Milton’s injuries under Louisiana’s Merchant Statute (pdf). Specifically, the appellate court addressed the issue of whether the presence of the 3x10 mat presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable. The court affirmed the district court’s finding that the placement of the mat did not constitute an unreasonable risk of harm, noting that there was nothing inherently and unreasonably dangerous about the mat. And, the decision to move the mat on the day of the accident to an area where patrons would walk in with wet feet and dripping clothes was rational, outweighed the risk of taking no action, and was an adequate precaution to protect both the store and its patrons. The court also affirmed the trial court’s finding that the risk was not reasonably foreseeable. In doing so, the court noted that despite the heavy foot traffic, nobody else stumbled or tripped while walking over the mat. Also, the plaintiff’s expert acknowledged that the grade of the 3x10 mat is commonly used in other stores and the surveillance video clearly shows that the 3x10 was free of wrinkles, buckles or bumps, was lying flat on the floor, and was not fraying or unraveling. Based on these facts, the court found that the probability that a patron would trip and fall on the mat was minimal at best.

Take-Away: The mere fact that an accident occurs does not elevate the condition of the premises or thing to an unreasonable vice or defect.

Plaintiff's Claims Lost By Hole In Evidence

Ed Trapolin — Tue, 14 Dec 2010 14:47:55 -0600

While waiting for her child’s school bus to arrive at the intersection of two streets in Farmville, Louisiana, Carol Smithwick stepped off of the sidewalk onto the shoulder of the road. Upon doing so, she stepped in a shallow hole in the ground and injured her ankle. After the accident, Mrs. Smithwick filed a lawsuit against the City of Farmville in Smithwick v. City of Farmville.

Mrs. Smithwick sought to recover damages pursuant to La. R.S. 9:2800 (pdf), which limits the liability of public entities for defective or dangerous premises. In order to prevail, Mrs. Smithwick had to prove the following elements: (1) custody or ownership of the defective thing by the City; (2) that the defect created an unreasonable risk of harm; (3) that the City had knowledge of the defect; (4) that the City failed to take corrective action within a reasonable time; and (5) that the defective thing caused the plaintiff’s injury.

At the trial court level, Mrs. Smithwick was not able to prove one of the essential elements of her claim: that the City had actual or constructive knowledge of the hole that caused her injury. The court dismissed the case, and Mrs. Smithwick appealed.

On appeal, the court addressed the issue of whether the city had either actual or constructive knowledge of the hole. The appellate court defined “actual knowledge” as knowledge of dangerous defects or conditions, and defined “constructive knowledge” as the existence of facts which imply actual knowledge. The court noted that constructive knowledge is ordinarily established when plaintiffs prove that the defect existed over a sufficient length of time that reasonable diligence would have led to its discovery or repair.

Ms. Smithwick first argued that the City had actual knowledge of the hole, as evidenced by the deposition testimony of a city employee who stated that he had observed a hole while trimming the grass in the area. The court pointed out, however, that the employee’s trial testimony clarified that the hole he had noticed was in a different area next to a water line, and thus was not the hole that caused Ms. Smithwick’s injury. Ms. Smithwick also argued that the City had constructive knowledge of the hole. She argued that the city personnel responsible for trimming the grass in that area must have seen the hole prior to the accident. The court reasoned that because no one knew how or when the hole was formed, it was speculative to assume that it even existed when the grass in the area was last trimmed.

After considering all of the facts, the court concluded that there was no evidence that the hole had been noticed or should have been noticed by city employees. The appellate court ultimately held that the trial court was not clearly wrong in finding that Ms. Smithwick failed to prove that the City of Farmville had actual or constructive knowledge of the hole. Accordingly, Ms. Smithwick could not recover damages from the City of Farmville.

Take-Away: Although a person may be injured by a defect on public property, that person will not be able to recover if there is no evidence that the public entity had knowledge or constructive knowledge of the harmful defect’s existence.

This article was co-authored by Kelly Brilleaux, an associate at Irwin Fritchie Urquhart & Moore LLC.

Pink Slip & Fall Redux

Ed Trapolin — Mon, 06 Dec 2010 13:45:02 -0600

On July 7, 2010, the Louisiana Supreme Court reversed the Louisiana Third Circuit Court of Appeal’s decision in Ardoin v. CLECO Power, L.L.C. The Louisiana Supreme Court noted that an employee's exclusive remedy against his employer for injuries suffered in the course and scope of his employment is provided by the Workers' Compensation Act. Louisiana worker’s compensation law provides that compensation coverage is not automatically and instantaneously terminated by the firing or quitting of an employee. Instead, the employee is deemed to be within the course of employment for a reasonable period of time during the winding up his affairs and leaving the premises. The question before the Court was whether Mr. Ardoin’s injuries occurred within a reasonable time of his termination.

The Ardoin Court found that the Third Circuit correctly applied Louisiana jurisprudence that holds that an employee who is injured during a reasonable period of time needed for winding up his affairs is considered to be within the course and scope of employment. The Ardoin Court, however, disagreed with the Third Circuit that Mr. Ardoin’s accident occurred beyond a reasonable period of time. The Court held that the relevant factors to be considered in deciding whether Ardoin’s injury occurred within a “reasonable period of time to wind up his affairs” were: (1) the purpose that prompted him to return to work; and, (2) the relationship between that purpose and the conditions surrounding his work. Because Mr. Ardoin was on Cleco’s premises to clean out his office with Cleco’s permission, after his termination, and at a time imposed by Cleco, the court concluded that this was a reasonable amount of time. Thus, he was deemed to be within the course and scope of his broadly defined “employment” with Cleco. Accordingly, he could recover for his injuries under the Louisiana Worker’s Compensation scheme.

Take-Away: Whether an employee is acting within the course and scope of employment is not always clear, especially in post-termination settings, and may turn on the employer’s control over the time and manner of the winding-up of post employment activities.

This article was co-authored by, McDonald Provosty, an associate at Irwin Fritchie Urquhart & Moore LLC.

Blue Tarp Blues

Ed Trapolin — Tue, 23 Nov 2010 12:51:03 -0600

Lori Jackson’s roof was damaged in Hurricane Katrina, causing water to leak into her kitchen. Ms. Jackson did not have the roof repaired or inspected by a professional. She also did not request that her insurer send a roofer to secure her roof with a tarp. Approximately a month later, with Hurricane Rita threatening southeast Louisiana, Ms. Jackson asked her boyfriend, Melvin Millien, to place a tarp over the damaged portion of her roof to prevent more water from leaking into her house. Mr. Millien regularly performed his own home maintenance and occasionally helped Ms. Jackson with her home repair, but he was not a professional roofer and had no expertise in the area of roofing. Despite his lack of expertise, Mr. Millien secured the tarp to Ms. Jackson’s roof. As he was attempting to climb down from the roof, he slipped on a loose shingle and fell to the concrete slab below. As a result of the fall, Mr. Millien suffered a fractured leg and a smashed heel, which injuries required surgery and physical therapy to repair. Mr. Millien sued Ms. Jackson and her homeowner’s insurer.

It was established at trial that Mr. Millien slipped on a loose shingle located near the edge of the roof. Mr. Millien testified that the errant shingle was not located in the area of the roof onto which he had affixed the tarp. He further testified that he did not know the signs of wear and tear on a roof, nor did he know the extent of the damage to Ms. Jackson’s roof, and that he could not tell that the shingle was loose before he slipped.

The trial court awarded Mr. Millien $62,500.00 plus legal interest, applicable medical expenses, and costs. 25% of fault was apportioned to Mr. Millien, while defendants were found to be 75% at fault. Defendants appealed, arguing that any potential danger on Ms. Jackson’s roof was “obvious, universally known, and easily avoidable” and that the roof did not therefore present an unreasonable risk of harm. The Louisiana Fifth Circuit Court of Appeal affirmed.

The appellate court noted that a landowner has a duty to discover any unreasonably dangerous conditions, and to either correct the condition or warn of its existence. Generally, a landowner has no duty to protect against an open and obvious danger. If the condition complained of should be obvious to all, the condition is not unreasonably dangerous. There is, however, no fixed rule for determining whether a thing presents an unreasonable risk of harm. Many factors are considered and weighed, including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; (6) the social utility involved; and (7) the degree to which a potential victim can observe the risk.

In Millien v. Jackson, the Fifth Circuit agreed with the trial court that Ms. Jackson’s roof posed an unreasonable risk. By Ms. Jackson’s own admission, the roof was damaged following Hurricane Katrina and she failed to have it repaired. She also failed to inform Mr. Millien that she had not performed routine maintenance on her roof or that the roof had not been inspected by a professional. And Ms. Jackson did not request that her insurer send a professional roofer to place the tarp on her roof. The Court found that the probability of harm occurring in such a case was relatively high because the roof was already damaged when Mr. Millien placed the tarp. The Court also found that the potential gravity of harm was high because of the roof was more than twelve feet off the ground. But most importantly, the Court found that the social utility of Mr. Millien’s actions was high because he agreed to assist Ms. Jackson in preserving her property under difficult conditions, despite the fact that he was under no legal obligation to do so. The significance of Mr. Millien’s conduct was substantial – by affixing the tarp on Ms. Jackson’s hurricane-damaged roof to prevent further damage from a second hurricane, he attempted to protect the property of an individual with no other recourse.

Take-Away: The social utility of a plaintiff’s actions is an important factor in determining whether he should be granted a right of recorvery for injuries suffered from a defective condition.

This article was co-authored by Kelly Juneau, an associate at Irwin Fritchie Urquhart & Moore LLC.

Casino Fight Does Not Result in Jackpot in Court

Ed Trapolin — Tue, 09 Nov 2010 12:47:03 -0600

On July 8, 2005, Deidre Morales and her husband, Brian Morales, visited the Boomtown Casino in Harvey, Louisiana. While playing a nickel slot machine, Ms. Morales won the jackpot. Either Ronette Thompson or her boyfriend, who were at the casino with Ms. Thompson’s mother and father, had played the same nickel slot machine before Ms. Morales hit the jackpot. As she was waiting for the attendant to arrive to pay her, Ms. Morales was confronted by Ms. Thompson and an argument began.

After the slot machine attendant, Aja Washington, arrived to make payment, Ms. Morales reportedly asked Ms. Washington to call security or to tell Ms. Thompson to “shut up.” Ms. Washington told Ms. Morales to ignore Ms. Thompson and moved Ms. Morales into the aisle. At this point, a fight began between Ms. Morales, Ms. Thompson, and Ms. Thompson’s father – Stewart Thompson. Security immediately reported to the scene of the fight, broke it up, and called the police.

The Morales' filed suit against Boomtown, Ms. Thompson, and Mr. Thompson. They claimed, in relevant part, that Boomtown was responsible for Ms. Morales’ damages because: (1) the slot machine attendant, Ms. Washington, did not prevent the fight from occurring; (2) Ms. Washington did not evaluate the risk to Ms. Morales; and, (3) Boomtown’s surveillance and security teams did not prevent the fight. Boomtown responded by filing a Motion for Summary Judgment. Boomtown argued that it did not have a legal duty to prevent the “unexpected and spontaneous criminal acts” of the Thompson’s and that it acted reasonably by providing security to protect Ms. Morales. The Morales countered that the fight was reasonably foreseeable and that Ms. Washington should have called security when asked by Ms. Morales.

After the judge heard the arguments of each side and reviewed the videotape of the incident at Boomtown, he ruled in favor of Boomtown and dismissed the Morales’ suit. The Morales appealed, arguing that there were genuine issues of material fact that prevented summary judgment, including whether the fight was reasonably foreseeable, whether the attendant should have recognized the danger and called security, and whether the Boomtown employees were properly trained to prevent the attack.

On review, the Louisiana Court of Appeal for the Fifth Circuit upheld the trial court’s dismissal of the Morales’ suit. The Court reasoned that, generally, businesses do not have a duty to protect patrons from criminal activity of others, but are under an obligation to protect patrons when the criminal acts are reasonably foreseeable. The predictability and severity of the risk determines the duty owed by the business owner. The appellate court agreed that Boomtown did not have a duty to protect Ms. Morales, because the Morales’ failed to produce evidence to prove that the fight was reasonably foreseeable

In fact, there was a two to three minute span of time between the slot machine attendant’s arrival and the fight. Even Ms. Morales testified that she did not know that Ms. Thomson was going to touch her until she approached her and pushed her. She also testified that she asked the attendant to call security or to tell Ms. Thompson to “shut up.” In response, the attendant moved Ms. Morales into the aisle and told her to ignore Ms. Thompson. The attendant confirmed that she also had no reason to expect that a physical fight would occur and security arrived on the scene within seconds.

Take-Away: Business owners must take reasonable steps to protect their patrons from reasonably foreseeable injuries or physical altercations, but are not guarantors of safety in unpredictable situations.

This article was co-authored by Kerri Kane, an associate at Irwin Fritchie Urquhart & Moore LLC.

"Pop" Goes The Sprinkler Head - And The Plaintiff's Case

Ed Trapolin — Tue, 26 Oct 2010 08:23:38 -0600

Over two years after Hibernia National Bank opened a branch in New Orleans East in 1996, Esther Lingoni tripped over a landscape sprinkler head located at the intersection of two sidewalks and was injured. Ms. Ligoni sued Hibernia and its insurer, St. Paul Fire and Marine Insurance Company, its architect for the project, Sizeler Architects, Inc. (Sizeler), the project landscape architect, Daly-Sublette Landscape Design & Development, Inc. (Daly-Sublette), the general contractor, Shamrock Construction Co., Inc. (Shamrock), and the landscape contractor, Paradise Gardens Landscaping, Inc. (Paradise). Ms. Ligoni argued that the defendants were liable to her because the sprinkler head was located too close to the sidewalk and posed an unreasonable risk of harm. Ms. Ligoni settled with Hibernia and its insurer. The other defendants moved for summary judgment under Louisiana Code of Civil Procedure article 966 (pdf).

The design professionals, Sizeler and Daly-Sublette, argued that Ms. Ligoni did not have an expert who would testify regarding the professional standards of architects or landscape architects. Therefore, she did not have any evidence that they breached a duty owed to Ms. Ligoni. Additionally, they argued that her only expert was a safety expert whose only document was that her trip and fall was probably caused by a defective sprinkler “pop-up head” that was in the up position when the accident occurred.

For their part, the contractors, Shamrock and Paradise, argued they were immune from liability under Louisiana Revised Statute 9§2771 (pdf) because they followed plans and specifications provided to them by a third-party. Under that statute, a contractor cannot be liable for damage or destruction caused by following plans and specifications provided to it by a third-party. A contractor, however, may not be shielded from liability if the plans and specifications are obviously defective and a reasonable contractor would know that following the plans and specifications would result in an unsafe or substandard condition. The trial court granted the motions and dismissed Ms. Ligoni’s claims.

On appeal, Ms. Ligoni argued that the trial court erred in granting summary judgment because a genuine issue of material fact existed regarding whether the plans and specifications were properly prepared and whether the installation of the sprinkler system was in compliance with the plans and specifications. Additionally, Ms. Ligoni argued that expert testimony was not required in a case where common sense would dictate whether the sprinkler head was too close to the sidewalk and presented a tripping hazard.

In affirming the dismissal, the appellate court noted that both of the contractors presented evidence that neither of them played any part in the preparation of the plans and specifications for the project and that they each had complied with the plans and specifications provided to them. Moreover, there was no evidence that the plans and specifications were defective or that compliance with them created a dangerous condition. In addition, because the accident occurred two years after installation, after project approval, after the expiration of project warranties, and while another company was maintaining the premises, there was no evidence that the condition that allegedly caused the accident was the same that existed when the project was completed. Therefore, the district court did not err in finding that the contractor defendants met their burden or persuasion and that the plaintiff did not present evidence to rebut the strong showing made by them.

As to the design professionals, Sizeler and Daley-Sublette, the appellate court also affirmed the summary judgment as to them, because Ms. Ligoni had no evidence that either of them had breached a professional duty or that their services fell below the local standard of care for similar professionals. Critically, the appellate court agreed with the district court that she failed to present credible evidence in support of her case. In fact, her own expert was of the opinion that her accident was, more likely than not, caused by a defective or broken sprinkler head that was in the up position. Her expert, although not a design professional, did not suggest that the location of the sprinkler was improper or that the location was the cause the accident. Accordingly, the appellate court found no error in the district court’s ruling.

Take-Away: Contractors may be shielded from liability for slip and fall claims when they follow plans and specifications provided to them by a third party and the plans and specifications themselves are not obviously defective or a contractor should know that strict adherence would create an unreasonably dangerous condition.

Cleanup On Aisle 13

Ed Trapolin — Tue, 12 Oct 2010 12:03:03 -0600

Lena Gregory was shopping at a Brookshire grocery store in Farmerville, Louisiana, when she slipped on a clear substance on the floor. At the time Mrs. Gregory fell, Brookshire employees were working to clean other areas of the store where a child had thrown up minutes before. The child had gotten sick at the front of aisle 13 and in other parts of the store. When employees found out that the child had gotten sick, they began cleaning the dirty areas. One employee stood guard at the front of aisle 13. Mrs. Gregory saw vomit in a few places and was careful to avoid those areas while she shopped. She cautiously walked to the back of aisle 13, where she suddenly slipped and fell on a clear substance spilled on the floor. Nobody knew what the substance was, how it got on the floor, how long it had been there, or whether it was related to the sick child.

Mrs. Gregory sued Brookshire under the Louisiana slip and fall statute (pdf). To succeed with her suit, Gregory v. Brookshire Grocery Company, Mrs. Gregory had to prove that: (1) the clear substance created an unreasonable, foreseeable risk of harm; (2) Brookshire knew or should have known about the clear substance that spilled; and, (3) Brookshire did not demonstrate reasonable care in cleaning up that spill.

Because there was no evidence that Brookshire had actual notice of that particular mess, Mrs. Gregory had to establish that the store had constructive notice of it. To do that, she needed to prove that the clear substance had been there for enough time before she fell that the store should have found the spill if it had exercised reasonable care. The trial court rejected Mrs. Gregory’s claims, holding that she did not prove that the grocery store should have known about the clear substance on which she slipped.

Mrs. Gregory appealed, arguing that Brookshire did not have formal safety procedures in place when she fell. She also argued that the store was not reasonably careful, because it did not have a written or verbal cleanup policy and because store employees may not have checked all the aisles for spills on the day she fell. After reviewing the case, the court of appeal affirmed the trial court’s decision.

Primarily, she did not prove that the store lacked an effective cleanup plan, especially since the positive evidence established that the employees immediately began cleaning after they heard about the sick child. The appellate court also held that Mrs. Gregory could not prove that the store had notice of the spill or that it acted unreasonably on the day in question. There was no evidence that Brookshire had actual or constructive notice of the clear substance on which she slipped. Although store employees knew about the child getting sick, nothing showed that the clear substance was at all related to that child. Although the store was aware of one hazard on the premises but not about the particular spill on which Mrs. Gregory slipped. More importantly, nobody knew how long the substance had been there, which was crucial for proving constructive notice.

Take-Away: The best defense to a slip and fall claim is adequate policies to address dangerous conditions as they occur or are discovered. Moreover, knowledge of one dangerous condition will not necessarily put a merchant on notice of all possible hazards on the premises.

This article was co-authored by Ali Spindler, a 2010 summer associate, at Irwin Fritchie Urquhart & Moore LLC.