Category: Injury

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

“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.

Is timing everything where workers compensation benefits are forfeited based on fraud? It depends…

In Moran v. Rouse’s Enterprises, LLC, 19-2392019(La. App.5 Cir. 12/26/19)- – – So. 3d – – -, the Louisiana Fifth Circuit held that there is a forfeiture of all benefits when a worker’s compensation claimant commits fraud, regardless of when the fraudulent conduct occurs. The court declined to follow opinions from the First and Third Circuits concluding otherwise.

In Moran, the claimant obtained treatment for injuries to her back, right knee, and right shoulder after a slip and fall at work for Rouses supermarket. In her deposition, the claimant Moran testified that she experienced knee pain only once before her fall; it was “years ago” and not “serious.” Moran also claimed that she experienced no prior shoulder or back pain. However, medical records established:

•             Complaints of knee pain on at least 8 separate occasions between 2012 and the job injury;

•             Complaints of right knee, right wrist, and back pain after a slip and fall in 2013; and

•             A right shoulder impingement diagnosis 2 months before the on-the-job accident.

Rouses and its workers compensation carrier affirmatively alleged a violation of La. R.S. 23:1208, Louisiana’s workers compensation fraud statute, following the claimant’s deposition. Paragraphs “A” and “E” of section 1208 provide in pertinent part:

A.            It shall be unlawful for any person… to willfully make a false statement or representation… for the purpose of obtaining or defeating any benefit or payment under…this Chapter.    

***

E.            Any employee violating this Section shall… forfeit any right to compensation benefits under this Chapter.

As part of their fraud defense, the defendants specifically denied responsibility for all worker’s compensation benefits, i.e. benefits that that might have otherwise been due both before and after the fraudulent deposition testimony.

Following trial, the workers compensation judge determined that Moran carried her burden of proving the occurrence of on-the-job injury and disability. Nevertheless, the trial court also ruled that the claimant made false statements for the purpose of obtaining workers compensation benefits in violation of section 1208, thereby forfeiting the right to both the pre and post-deposition benefits that she was claiming.

On appeal, Moran argued that the forfeiture requirement of section 1208 applies prospectively only. Moran cited opinions from the Louisiana First and Third Circuits. After addressing the statute and the case law, the Moran court affirmed the decision of the workers compensation judge finding that the forfeiture of benefits provided for in of Section 1208 is clear and unambiguous. The opinion states that “…if the legislature had intended to limit the application … it would have clearly expressed that in the statute.”

There are no Louisiana Supreme Court opinions which specifically address whether the Section 1208 forfeiture applies retroactively or prospectively only. Given the defined split in the Louisiana appellate courts, the issue is ripe for consideration by the state’s highest court.


Ed is a Keogh Cox partner who litigates Worker’s Compensation, automobile and premises liability as well as subrogation claims. He is an avid runner and enjoys traveling with his wife Jennifer and their three children.

A Matter of Control of a Bike Results in No Liability under the LPLA

A Louisiana man logged onto eBay. To save some money, he bought a used racing bicycle. While riding this bike through his neighborhood, he noticed an unlevel section of the roadway and attempted a “bunny hop” over the gap in the pavement. The front wheel disconnected when he landed. The cyclist lost control and flipped over the handlebars, sustaining serious injuries. He later filed suit against Specialized, the manufacturer of the bicycle, under the Louisiana Products Liability Act (“LPLA”). See Delahoussaye v. Boelter, — So.3d—, 2019-0026 (La. App. 1 Cir. 11/15/19).

The evidence in Delahoussaye showed that the bike was missing its “secondary retention device,” which keeps the wheel from disengaging if the “quick release” on clamp on the front fork is not engaged properly. Also, no warnings were found on the bike. Based upon this evidence, the cyclist claimed Specialized should be liable because the bike was defective; unreasonably dangerous in its design, construction, and manufacture; and inadequate in its instructions and warnings.

To recover from a manufacturer under the LPLA, a plaintiff must show that the product (here, the bike) was unreasonably dangerous at the time it left the manufacturer’s control. Photographs of the bike showed a light, silver spot on the bike where the secondary retention device had been located. This confirmed that the secondary retention device was removed after it originally was manufactured. Evidence also showed that warning stickers originally on the bike had been removed.

These changes were made after Specialized lost control of the bike. Because the bike was not defective when the product left Specialized’s control, Specialized, as the bike’s manufacturer, could not be liable under the LPLA for injuries the plaintiff sustained when he lost control of the bike. In short, this case came down to a matter of control.


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.

Throw Me Something Mister? Liability for Mardi Gras Krewes

As part of the unique aura that surrounds Mardi Gras in South Louisiana, the expression “Laissez les bons temps rouler” is forever linked to the spirit of the season. The Cajun French phrase meaning “Let the good times roll” captures the eccentric soul of Carnival. However, it might be difficult to let the good times roll after being struck by a bag of beads hurled from the second deck of float. If the spectator suffers a severe injury as a result, who is liable? Does the injured party have any recourse against the person who threw the beads? Against the Mardi Gras krewe organizers?

The Fourth Circuit Court of Appeal held that spectators assume the risk of injury when attending a parade. Citron v. Gentilly Carnival Club, Inc., 14-1096 (La. App. 4 Cir. 4/15/15), 165 So.3d 304. The foundation of the decision was based on the Mardi Gras Immunity Statute, La. R.S. 9:2796, which has two parts: (1) creates broad immunity for krewes which sponsor parades; and (2) states that anyone who attends such a parade “assumes the risk of being struck by any missile whatsoever which has been traditionally thrown, tosses or hurled by members,” which include, but are not limited to: beads, cups, doubloons, and many other things.

To impose liability on a krewe, there must be evidence of the krewe’s—as opposed to its member’s—gross negligence. Palmer v. Zulu Soc. Aid & Pleasure Club, Inc., 09–0751 (La. App. 4 Cir. 3/1/10), 63 So.3d 131 (emphasis added). Furthermore, a carnival krewe or organization may not be vicariously liable for its members’ acts. To the contrary, Louisiana jurisprudence has rejected the argument that a krewe is vicariously liable for its members’ acts. Kibble v. B.P.O. Elks Lodge No. 30, 640 So.2d 267, 269 (La. App. 4th Cir. 1993).

The Mardi Gras Immunity Statute imposes an extremely high burden of proving the “loss or damage was caused by the deliberate and wanton act or gross negligence” of the krewe or organization. Gross negligence has been defined as the “entire absence of care” and an “extreme departure from ordinary care or the want of even scant care.” Ambrose v. New Orleans Police Department Ambulance Service, 93–3099 (La. 7/5/94), 639 So.2d 216. In calculating whether an act was grossly negligent in the context of Mardi Gras Immunity Statute, the Citron court considered several factors: (1) the weight of the object thrown, (2) the distance the object was throw, and (3) the manner in which the object was thrown. Citron, 165 So.3d at 317.

Ultimately, the statute absolves krewes from liability for injuries caused by objects thrown to parade spectators, except in extreme and unusual circumstances. Therefore, be alert during parades this Mardi Gras season and Laissez les bons temps rouler.


Cole Frazier joined Keogh Cox as an associate in 2019 after working at the firm as a law clerk during law school. He earned his J.D. and Diploma in Comparative Law from Louisiana State University, Paul M. Hebert Law Center. During his time at LSU Law, he also studied comparative law at Jean Moulin Lyon 3 University in Lyon, France. Cole received his Bachelor’s degree in Business Administration with a concentration in Pre-law from Nicholls State University in 2015. He was elected to the Southland Conference all-academic team twice as a member of the Nicholls State football program.