Category: Premises Liability

Court Grants Summary Judgment and Takes Stock of Evidence Needed to Support Merchant Liability Claims

05.15.2024

In Hawkins v. Hi Nabor Supermarket, LLC, the First Circuit recently affirmed summary judgment in favor of Hi Nabor finding that Hi Nabor could not be liable to the plaintiff for injuries she allegedly sustained when she tripped and fell over a stocking cart while she was shopping in its store.^

The plaintiff claimed the stocking cart created an unreasonably dangerous condition that was foreseeable to the defendant. Hi Nabor filed a motion for summary judgment in response and attached affidavits of its employees, the store’s surveillance video of the incident, and excerpts of the plaintiff’s deposition.

The plaintiff failed to timely oppose Hi Nabor’s motion and then filed a motion for leave to file a late opposition. However, she did not attach or file any documents or exhibits in support of her opposition. The trial court granted Hi Nabor’s motion, and the plaintiff appealed the decision. On appeal, the plaintiff argued (1) summary judgment was granted “solely because an opposition was filed late” and (2) there was in sufficient proof that movers were entitled to judgment.

In response to the plaintiff’s first argument, the Court addressed the plaintiff’s failure to file an opposition to the defendants’ motion. See our prior blog for analysis of the impact of a party’s failure to timely oppose a motion for summary judgment here. The Court noted that a failure to timely oppose a motion for summary judgment does not automatically require that the motion be granted. However, if the mover meets its burden in its motion, and the plaintiff fails to file an opposition, the motion should be granted.

The court examined whether the defendant met its burden to support its motion in response to the plaintiff’s second argument. The Court found the defendant produced evidence to show that the stocking cart did not present an unreasonably dangerous condition such that liability could not attach.

The Court found that “stocking carts are necessary and useful in grocery stores to restock shelves, and that their common use and obviousness to a shopper make any risk slight.”* Further, surveillance video showed the size of the stocking cart (its’ tall sides were approximately the height of the plaintiff), the placement of caution cones around the stocking cart and the Plaintiff’s interactions with the cart prior to the accident.

In light of the evidence filed in support of its motion, the Court found Hi Nabor met its burden of proof to show that plaintiff could not establish the stocking cart presented an unreasonable risk of harm that was reasonably foreseeable. When the plaintiff failed to produce evidence to meet her burden of showing genuine issues of material fact regarding whether the cart presented an unreasonable risk of harm, summary judgment was properly granted. The Court’s decision highlights the importance of procedural requirements and reaffirms the principle that mere allegations of danger are insufficient and cannot defeat summary judgment without substantive proof.

References:

^Hawkins v. Hi Nabor Supermarket, LLC, 2023-0978 (La. App. 1 Cir. 2/23/24), 2024 WL 743080.

*Citing Russell v. Morgan’s Bestway of Louisiana, LLC, 47,914 (La. App. 2 Cir. 4/10/13), 113 So. 3d 448, 453.

Louisiana Second Circuit Applies Anti-Dram Shop Statute to Grant Summary Judgment

02.05.2024

Louisiana’s “anti-dram shop” statute, La. R.S. 9:2800.1, limits the ability of a claimant to hold a provider of alcohol liable for damages resulting from the acts of an intoxicated patron. Subsection A of the statute declares that the consumption of intoxicating beverages, rather than the sale, serving, or providing of those beverages, is the proximate cause of any injury or property damage that the consumer may cause. Under Subsection B, anyone who lawfully serves alcohol to a person of legal age is provided immunity for any injury caused by the consumer that occurs “off the premises.” This immunity extends to sellers of alcohol and social hosts.

The Louisiana Second Circuit recently examined these provisions of this statute in Rugg v. Horseshoe Entertainment, et. al. The plaintiff alleged she was injured when an intoxicated patron (John Doe) fell onto her at a hotel bar. She alleged that the defendant, which operated a casino bar, was liable because it ignored multiple complaints about John Doe’s drunken state prior to the incident and failed to escort him out.

The defendant moved for summary judgment, arguing that Louisiana’s anti-dram shop statute prevented any finding of liability on its part. In opposing the summary judgment, the plaintiff argued that the statute did not rule out liability because the injury occurred on the premises.

The Second Circuit determined that the immunity afforded in Subsection B of the statute was not available because, as the plaintiff argued, the injury occurred on the premises. However, Subsection A of the statute, which declares the consumption, not the serving, of alcohol is the proximate cause of injury inflicted by an intoxicated person, still applied.

Under these circumstances, the Court held it had to determine whether the bar owner violated general negligence principles. In conducting this analysis, the court was required to focus on two issues: 1) whether the alcohol provider acted reasonably under the circumstances, and 2) whether the alcohol provider took any “affirmative acts” that increased the chances of the incident.

The Court of Appeal granted summary judgment under the facts of the case. The court found no evidence in the record that Horseshoe acted unreasonably leading up to the incident. Testimony indicated that the complaints about John Doe’s behavior arose after the incident occurred, not before. Similarly, the court reasoned that the failure to escort John Doe out of the bar was not an “affirmative act” that increased the risk of the incident because the record did not indicate Horseshoe had any reason to do so prior to the injury.

In conclusion, the court noted “that in no case will the serving of alcohol be held as the proximate cause of a tort in which alcohol was involved.” Therefore, the plaintiff had to show Horseshoe did something more to cause her injury than just serve John Doe alcohol. Because the plaintiff failed to do so, summary judgment was granted. Under these facts, Louisiana’s dram shop statute still applied to protect the defendant provider of alcohol, even though the injury occurred on its premises and the statutory immunity was not available.

References:

La. R.S. 9:2800.1

Mechelle Rugg v. Horseshoe Entertainment, et al., 55,239 (La. App. 2 Cir. 1/10/24), 2024 WL 104143.

Summary Judgment Affirmed Because Alleged Defect was Open and Obvious

01.10.2024

The First Circuit Court of Appeals recently affirmed summary judgment in Rainey v. Knight, on grounds that the alleged defect was open and obvious. Its ruling shows that the open and obvious defense remains viable and supports summary judgment when reasonable minds can only agree that a condition is not unreasonably dangerous.

In Rainey, the plaintiff fell and was injured while leaving a veterinary hospital. Evidence showed the plaintiff frequented the premises for nearly twenty years before the incident. The plaintiff attempted to descend four steps from the hospital’s elevated porch but stepped off the porch and fell twenty-one inches to the ground. Rainey filed suit for his injuries, alleging the defendant failed to maintain its property. Specifically, he claimed that the elevated porch lacked a railing, which created a defect.

The defendant filed a motion for summary judgment and argued (1) the front porch ledge was an open and obvious defect and (2) the plaintiff could not show the defendant had knowledge of the allegedly dangerous condition of the porch. The defendant also produced evidence to show it had no prior problems with anyone falling from the porch.

The plaintiff opposed the defendant’s motion, but his opposition was filed one day late. Because the opposition was not filed timely, the appellate court noted it was unable to consider the plaintiff’s opposition and exhibits under the Louisiana Supreme Court’s ruling in Auricchio v. Harriston.

On appeal, the court focused its analysis on whether the defendant breached a duty owed to the plaintiff, applying Louisiana’s risk/utility balancing test to consider the utility of the condition, the likelihood and magnitude of harm, the cost of preventing the harm, and the nature of the plaintiff’s activities.

In examination of the likelihood and the magnitude of the harm, the appellate court noted that summary judgment may be granted if a condition is open and obvious. If reasonable minds could only agree that the condition was not unreasonably dangerous, that condition would be open and obvious, and the plaintiff would be unable to establish the defendant breached any duty owed to the plaintiff.

Considering the evidence before the court, the First Circuit found a reasonable person would have found the lack of a railing on the porch open and obvious and would have avoided the area where plaintiff fell when exiting the building. Importantly, the court found the lack of a railing was apparent to all who encountered it such that it was open and obvious.

The Rainey court also noted that the lack of reported complaints about the alleged condition indicated a low risk of harm. The height of the porch also showed the likelihood and magnitude of the plaintiff’s harm was minimal. In light of this evidence, the lack of railing around the entire porch was not an unreasonably dangerous condition. No reasonable factfinder could find that the defendant breached any duty owed to the plaintiff, and summary judgment was appropriately granted.

References:

Rainey v. Knight, 2023-0133 (La. App. 1 Cir. 11/3/23) (La. App. 1st Cir. Nov. 3, 2023)

Auricchio v. Harriston, 2020-01167 (La. 10/10/21), 332 So.3d 660

Court Addresses the Reach of the Louisiana Health Emergency Powers Act’s Immunity Provision for Claims Against Health Care Providers

07.13.2023

The Louisiana Health Emergency Powers Act (LHEPA), La. R.S. 29:760 et seq, was enacted in 2003 to allow the government to use extraordinary powers in order to respond to potential or actual public health emergencies. Historically, claims against medical providers have been governed by a negligence standard, which requires a plaintiff to prove the provider failed to act with reasonable care. However, La. R.S. 29:771(2)(c), which was enacted as part of the LHEPA, provides what has been described as a limited or quasi-immunity for health care providers:

During a state of public health emergency, any health care providers shall not be civilly liable for causing the death of, or injury to, any person or damage to any property except in the event of gross negligence or willful misconduct.

This provision imposes a heightened standard of gross negligence or willful misconduct for claims against health care providers and their employees. “Gross negligence” has been defined as “the entire absence of care and the utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.”* Therefore, absent a showing of gross negligence or willful misconduct, the provision provides immunity from civil liability for all claims against all health care providers.

The reach and application of this heightened standard of gross negligence under the LHEPA has been the subject of recent rulings from Louisiana courts. In Lejeune v. Steck, which was decided before COVID-19 in connection with a public health emergency declared following Hurricane Katrina, the Louisiana Fifth Circuit Court of Appeals ruled that the LHEPA’s heightened standard applied to all medical providers in the state while the state was in a public health emergency.^

In Lejeune, a doctor left a sponge in a patient during a surgery. The plaintiff argued that a general negligence standard should apply because the surgery occurred outside the Hurricane Katrina emergency area. However, the Court found that the plaintiff must prove gross negligence or willful misconduct because the LHEPA “does not provide for a limited set of health care providers, nor does it limit its application to only those medical personnel rendering emergency assistance voluntarily due to the emergency in the area.” Thus, the Court ruled the LHEPA was broad reaching and covered all health care providers in all areas of Louisiana during the public health emergency.

More recently, Governor Edwards invoked the LHEPA on March 11, 2020 in response to COVID-19. In line with the all-inclusive application seen in Lejeune, the Louisiana Second Circuit Court of Appeals recently held that the LHEPA applied to all claims against health care providers that arose during the public health emergency declared for COVID-19.

In Lathon v. Leslie Lakes Ret. Ctr., the Second Circuit applied the LHEPA to a premises liability claim.^^ The plaintiff slipped and fell in a puddle at Leslie Lakes Retirement Center. The accident occurred during the declared public health emergency. The retirement center filed a motion for summary judgment and argued that because it qualified as a health care provider, the gross negligence standard set forth in the LHEPA should apply to the plaintiff’s claim.

The court agreed and found that the statute dictated that immunity applied in favor of any healthcare provider for any personal injury or property damage claim as long as it arose during a public health emergency. In so holding, the Court stated that the purpose of the LHEPA was to alleviate the liability burden on healthcare providers during public health emergencies. Therefore, the Court found its ruling aligned with the purpose of the act. The Lathon decision is significant because it applied the LHEPA’s statutory immunity to personal injury claims against healthcare providers outside of a medical malpractice setting.

At least one justice on the Louisiana Supreme Court voiced a desire to address the constitutionality of this statutory immunity provision. However, the Court ultimately declined to review the Second Circuit’s ruling. Therefore, under Lathon, it appears the statutory immunity granted under the LHEPA applies to any claim brought against any healthcare provider for acts that occur during a public health emergency. While it remains to be seen how courts will address this issue in the future, these decisions show the reach and application of the LHEPA continue to evolve.

References:
*Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099 (La. 7/5/94), 639 So. 2d 216.

^Lejeune v. Steck, 13-1017 (La. App. 5 Cir. 5/21/14), 138 So. 3d 1280, writ denied sub nom. Daigle v. Steck, 2014-1408 (La. 10/3/14), 149 So. 3d 800.

^^Lathon v. Leslie Lakes Ret. Ctr., 54,479 (La.App. 2 Cir. 9/21/22); 348 So.3d 888, writ denied, 2022-01566 (La. 12/20/22); 352 So.3d 80.

What ifs….. Indemnifying Premises Liability Exposure

11.24.2021

If you are a property owner, stop and think about the “what ifs” before you enter into a lease with a property manager or lessee. For example, what if an invitee of the property that you own is hurt while on and/or because of a condition on the property? Who is responsible?

A property owner may be able to transfer its potential liability to a property manager or lessee of the property if the lease contains an indemnification provision. However, not all indemnification provisions are enforceable, and these critical provisions are often litigated.

The Eastern District Court of Louisiana recently enforced an indemnification provision, granting summary judgment to a landowner who sought indemnification from its property lessee in Avila v. Village Mart, LLC, Civ. A. No. 20-1850, 2021 WL 4439579 (E.D. La. 9/28/21). In the case, a shopping center leased retail space to a men’s store. Before the store opened, a painter was injured when he fell from a ladder. The owner of the shopping center argued that the lessee owed a defense. It argued indemnity applied because the plaintiffs’ claims arose out of the lessee’s buildout construction, over which the owner did not have any care, custody, or control.

In response, the lessee argued that the owner was not entitled to indemnification because the plaintiffs’ claims did not “arise out of or were connected with Tenant’s use, occupancy, management or control of the Leased Premises.” The lessee claimed that it was not using, occupying, managing, or controlling the leased space because the only permitted use of the space was to sell menswear, and the space was not being used for this purpose at the time of the accident.

Louisiana courts often apply a “but for” causation test to such “arising out of” language in indemnity provisions. Avila, 2021 WL 4439579, at *5, citing Kan. City S. Ry. Co. v. Pilgrim’s Pride Corp., No. 06-03, 2010 WL 1293340, at *6 (W.D. La. Mar. 29, 2010), and Perkins v. Rubicon, Inc., 563 So.2d 258, 259-60 (La. 1990). The court observed the lessee’s arguments contradicted language in the lease that allowed the lessee to use and occupy the store before it opened to the public. The lease also explained that the lessee was responsible for certain construction work and identified specific dates to begin work and to open the store. Thus, the lease contemplated use and occupancy before the store was open to the public. The court found that the lessee’s possession of the space and its construction obligations under the lease established its use and occupancy of the space. The court stated:

Given the broad language in the indemnity agreement – ‘arising out of or connected with’ – [the plaintiffs’] injuries, resulting from his work as a subcontractor painting the premises leased by [the retail space lessee,] are connected to [its] use and occupancy of the premises. … Because [the retail space lessee] was in possession of the space, and had assumed responsibility for the buildout and for contractors and subcontractors working on the buildout, the Court finds that the plaintiffs’ liability theories fall within the scope of the indemnity provision in the lease. Avila, 2021 WL 4439579, at *6.

The enforceability of indemnity provisions such as the one examined in Avila will continue to be litigated. In the meantime, Avila reminds us of the importance of sound indemnity language to anticipate the “what ifs.”

Summary Judgment Affirmed in Premises Liability Case Upon Court’s De Novo Review

05.17.2021

In Marrero v. I. Manheim Auctions, Inc., the plaintiff fell after he exited a building during a rainstorm and stepped off a curb into a parking lot. He claimed he stepped into a divot where asphalt had washed away. The defendant moved for summary judgment.

In opposition, the plaintiff offered an expert affidavit that cited a lack of handrails, code violations, and loose pebbles as contributing to the plaintiff’s fall. To recover in the case, the plaintiff possessed the burden under La. R.S. 9:2800.6 to establish three elements: 1) the parking lot presented an unreasonable risk of harm, 2) this risk of harm was reasonably foreseeable, and 3) the defendant possessed actual or constructive notice of the alleged defect.

The defense argued the plaintiff could not show the parking lot presented an unreasonable risk of harm that was reasonably foreseeable and produced an expert affidavit to show the divot was only 3/16” deep. Evidence also showed the plaintiff was familiar with the area where he fell. The defendant also had received no prior complaints about the area. The trial court found that the parking lot did not present an unreasonable risk of harm because the divot was only 3/16” deep and granted summary judgment.

On appeal, the plaintiff argued that the trial court should not have granted summary judgment in light of the competing expert affidavits regarding whether the parking lot presented an unreasonable risk of harm. However, when a motion for summary judgment is appealed, the court uses a de novo standard of review. Under this standard, the appellate court reviews all issues and considers all evidence submitted to the trial court in its ruling.

The First Circuit affirmed summary judgment but did so for different reasons than the trial court. The Marrero court found the plaintiff failed to produce any evidence of the third element, i.e., whether the defendant knew or should have known of the defect. Because the plaintiff failed to establish a material issue of fact as to all three required elements, summary judgment was granted. Marrero reminds that appellate courts may consider facts and legal issues the trial court did not address in its ruling.

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

03.16.2021

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

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

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

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

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

Real Estate Liability: Recovery Denied in “As Is” Sale Despite Quick Discovery of Mold

05.31.2019

In the recent case of Riedel v. Fenasci, 2018-0540 (La. App. 1 Cir. 12/28/18), _______ So. 3d _______, 2018 WL 6818716, home buyers sued the sellers and the involved real estate agents after mold was discovered shortly following the sale. This is a common fact pattern in humid South Louisiana. The buyers lost in the trial court when there was no evidence that the sellers or the agents knew of the problem. The result was affirmed by the First Circuit Court of Appeal.

The Riedels identified mold weeks after the closing and filed a claim with their homeowner’s insurer. But the claim was denied when the insurer’s inspection revealed long- term damage, rot, and deterioration in a ceiling due to water damage. That finding prompted the suit.

Against the sellers, the Riedels contended that they “had to have known” about the moisture and mold in the home prior to the sale. Because the home was sold “as is,” they had to establish fraud to recover. However, the sellers had not lived in the home for years and had received no complaints from tenants over this time. Under such facts, the claim of fraud was not supported.

The Riedels also sued both agents for negligent misrepresentation, and their own agent for breach of fiduciary duty. In assessing the claim against the agents, the Riedel Court agreed that real estate agents are liable for negligent misrepresentation when they fail to disclose hidden defects in the property which were known or should have been known to them. The Court also agreed that a purchaser’s real estate agent owes a fiduciary duty, the highest duty of care recognized by law. Nevertheless, when the plaintiffs’ own inspector found no visible evidence of mold prior to the sale and there was no indication that the agents possessed prior knowledge of the mold, the claim against the agents was also dismissed.

Marty Golden has been practicing law based in Baton Rouge, Louisiana for over thirty years, concentrating in civil litigation primarily involving injuries, property damage, insurance coverage, and contract disputes. Much of his practice is defending and advising real estate agents in suits by property buyers and sellers, but Marty also defends other professionals, insurance companies, manufacturers, and business owners. Marty has a special interest in all things procedural, because they are the rules of the road for litigators and knowing them better than his opponent gives him a leg up in court.

Louisiana Court is Clear: Res Ipsa Loquitur of Little Use in Pool Defect Case

12.20.2018

When Casey Krueger and his family went to the pool at the La Quinta Inn & Suites in Baton Rouge, they knew how they wanted to end their day. What the Kruegers (and La Quinta) did not know was that a piece of clear, broken glass was on the bottom of the pool. Mr. Krueger stepped on the glass and experienced a “large and deep cut” that caused permanent loss of some function of his toe. He filed suit alleging that La Quinta was negligent for the defective condition in its pool. Krueger v. La. Quinta Inn & Suites, 18-0052 (La. App. 1 Cir. 9/21/18). He also alleged the negligence of La Quinta was self- evident such that the doctrine of res ispa loquitur should apply to impose liability. His claims were rejected by the jury; the Louisiana First Circuit upheld the verdict.

“Res ipsa loquitur” is a Latin phrase that means “the thing speaks for itself.” The doctrine of res ipsa is used where a plaintiff relies solely upon circumstantial evidence to prove negligence. For res ipsa to apply, the plaintiff must: 1) prove that the injury is the kind which ordinarily does not occur in the absence of negligence; 2) eliminate other more probable causes of the injury (such as the conduct of the plaintiff or of third-persons); and 3) show that the negligence of the defendant fell within the scope of the duty owed to the plaintiff. Res ipsa is often cited where the defendant possessed exclusive control of the thing which caused the injury. Id.

In the Krueger case, La Quinta checked the pool twice a day and posted signs that banned glass from the pool area. There was also no evidence that it knew or should have known of the glass in the pool. After all, clear glass in a clear pool is hard to detect. Lacking direct evidence of negligence, the Kruegers hoped the res ipsa doctrine would make their case. With some justification, they contended that broken glass was not to be expected in a hotel pool. However, res ipsa was found not to apply. Because it was “possible that a third party caused broken glass to enter the pool,” the plaintiffs could not establish all three elements to the doctrine.

Collin is a Keogh Cox partner who litigates injury, commercial, and legal malpractice disputes. He lives in nearby Zachary, Louisiana with his wife Melissa and three all too active children. He is an outdoorsman, a league tennis player, a cook, and a hobbyist writer.

Less Than Obvious State of “Open and Obvious” Defense

08.25.2015

The “open and obvious” defense remains alive and well in Louisiana according to an article penned recently by Professor John M. Church of the LSU Law Center for the Louisiana Association of Defense Counsel. In April 2013, the Louisiana Supreme Court announced Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), 113 So.3d 175, which muddied the waters regarding use of the “open and obvious” defense. Some read Broussard as a pronouncement that the “open and obvious” defense was essentially dead in Louisiana. However, as reflected in Professor Church’s article, subsequent Louisiana Supreme Court decisions have given new life to the defense.