Author: Tori Bowling

“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.

New Orleans Ladies On Parade for Equal Pay

When President John F. Kennedy signed the Equal Pay Act, he called it a “first step” and one which “affirms our determination that when women enter the labor force they will find equality in their pay envelopes.”  Despite the many federal statutes passed since the Equal Pay Act, “equal pay” remains a hot-button issue and the subject of protests aimed at correcting an actual and/or perceived disparity. Locally, the New Orleans Police Department estimates that between 10,000 and 15,000 protesters took part in the Women’s March in New Orleans on Saturday, January 21, 2017.

New Orleans Mayor Mitch Landrieu issued an executive order during the week following the protests wherein he requested that a pay disparity survey be conducted by the Civil Service Commission.  He further announced a ban of questions about salary history during the hiring process for New Orleans city employees, noting, “It is unacceptable that, on average, women make just 79% of what men make. We need equal pay for equal work.”

Mayor Landrieu’s order is limited to city jobs and follows a year when some state officials, including Gov. John Bel Edwards, were dealt a defeat in the Legislature on a separate equal pay measure.  The state “equal pay” measure ultimately passed the Senate, but was defeated in a House committee.

The right of employees to be free from discrimination in their compensation is protected under many federal laws, including the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.  Specifically, the Equal Pay Act requires that men and women be given equal pay for equal work.  Pay differentials are permitted only when they are based on seniority, merit, quantity or quality of production, or a factor other than sex.  Of course, these bases provide affirmative defenses that can be raised by the employer in the event of a lawsuit.

Whether the recent protests will become a catalyst for further “equal pay” legislation is not known; what is known is that the issue has been around since before John F. Kennedy and does not appear to be going away anytime soon.

Lawsuit “Tripped Up” by Open and Obvious Defense

Louisiana premises liability law continues to evolve in the wake of the Louisiana Supreme Court’s decision in Broussard v. State, 113 So.3d 175 (La. 2013). The Broussard decision was believed to limit the application of the open and obvious defense in the context of a Motion for Summary Judgment on liability.