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

Louisiana law does not recognize "strict liability" for slip and falls and a merchant is not automatically liable for someone’s injuries simply because he or she fell on the merchant’s premises. Before plaintiffs can recover damages for a slip and fall that occurs in a merchant’s store, La. R.S. 9:2800.6 requires plaintiffs to prove three separate elements in addition to causation and damages: 1) that the condition that caused the accident presented an unreasonable risk of harm that was reasonably foreseeable; 2) that the merchant either created the condition or had actual or constructive notice of the condition (the “notice element”); and 3) that the merchant failed to exercise reasonable care. A recent decision from the Louisiana Fifth Circuit highlights that evidence used to establish one element is not always good enough to establish another. Instead, all three of these elements are required for liability to attach.In Batiste v. United Fire and Casualty Company, 17-482 (La. App. 5 Cir. 3/14/18), the plaintiff claimed she slipped and fell on water in a grocery store aisle. Batiste admitted that she did not know where the water came from, how long the water had been on the ground, or whether any employees knew the water was present. As such, the plaintiff conceded that she could not show that the grocery store created the condition or had actual knowledge of the puddle before she fell.However, Batiste claimed the store had constructive notice of the condition. To support this argument, the plaintiff pointed to evidence that a grocery store employee failed to confirm she completed a walk-around inspection of the store before the accident, in violation of company policy. Batiste argued that the puddle of water would have been discovered had the inspection been performed and that the failure to perform the inspection was proof that the grocery store possessed “constructive notice.”The court disagreed. To establish constructive notice, plaintiffs “must come forward with ‘positive evidence’ showing the damage-causing condition existed for some period of time” sufficient to place the merchant on notice of the defect. Without this “temporal element,” constructive notice cannot be inferred. An employee’s failure to perform a pre-incident inspection could not establish this temporal element. Therefore, the court found that plaintiff’s claims were properly dismissed. In closing, the court observed:

While the evidence regarding the adequacy and timing of the floor inspection may be relevant for proving a failure to exercise reasonable care to discovery a hazardous condition, a delay in the performance of such procedures offers no proof of how long any such condition may have been on the floor, a separate and equally essential requirement of the Batistes’ burden of proof under Section 9:2800.6.

The plaintiff’s claims were dismissed because she could not establish each element of her claim. Evidence of one element was not evidence of another. Reynolds LeBlanc is a partner at Keogh Cox. His practice areas include commercial litigation, personal injury claims, appeals, and other matters. Reynolds is a former teacher, who in his free time plays music and perpetually talks himself into training for his next marathon.

The Louisiana Supreme Court recently issued a ruling on the application of the "open and obvious" doctrine in slip and fall cases. The facts of Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), presented problems for both sides. A UPS driver tripped and fell over an offset between the floor and an elevator. The elevator in a State building had problems for years. One problem was that the elevator would not align properly between floors causing an offset between the floor and the elevator. However, the UPS driver delivered products to this particular State building daily and was well aware of the problem. At the time of the incident, he noticed that the elevator was not properly aligned but nevertheless attempted to pull a dolly with approximately 300 pounds of computer paper over the offset. The inertia created caused the plaintiff to lose control. Plaintiff sued the State, the owner of the building, for injury to his back.

To recover damages from an owner of a building for a slip and fall, a plaintiff must prove: 1) ownership of the building; 2) owner's knowledge of the defect; 3) that damage could have been prevented by reasonable care; 4) that the owner failed to exercise reasonable care; 5) causation of damages; and 6) that the defect in the building created an unreasonable risk of harm. La. C.C. art. 2322; Entrevia v. Hood, 427 So. 2d 1146 (La. 1983). It was the "unreasonable risk of harm" element that was at issue before the Broussard Court.

Louisiana jurisprudence has created a risk-utility balancing test to determine if a defect in a building poses an unreasonable risk of harm. The risk-utility balance test consists of four factors: 1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature. Dauzet v. Curnest Guillot Logging, Inc., 08-0528 (La. 12/2/08), 995 So. 2d 1184.

In applying this balancing test, the jury found the State 62% liable and Plaintiff 38% liable for Plaintiff's damage. The court of appeal reversed that decision. It found that, where the Plaintiff knew of the defect, the defect was "open and obvious" such that the State had no duty to protect against the condition.

The Louisiana Supreme Court disagreed. Under the specific facts of the case, the Court found that Plaintiff's knowledge of the defect was insufficient to meet the open and obvious test. According to the Court, for a defect to be considered open and obvious it must be open and obvious to all. "Thus, in order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition." Broussard, p. 17.

The Supreme Court reasoned that the open and obvious question is not based upon the plaintiff's particular state of mind. Such an analysis is akin to assumption of the risk - a theory of law that was omitted when Louisiana enacted its comparative fault regime. Instead, the open and obvious to all standard is, according to Broussard, "sensible . . . and does not undermine the comparative fault regime by allowing a plaintiff's negligence to operate as a bar to recovery in a case where the defendant's conduct poses a risk of harm to the hypothetical blameless plaintiff." Id. p. 18.

The true impact of the Broussard decision remains to be seen. Under one reading, the opinion's impact should be limited to its specific facts. Under any interpretation, Broussard preserves the rule that an allegedly defective condition which is obvious to all will bar recovery to the plaintiff.

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.