Tag: constructive notice

Keogh Cox Obtains Summary Judgment in Premises Liability Action

03.31.2026

The First Circuit Court of Appeals affirmed the Trial Court’s ruling that granted summary judgment in a premises liability case filed following an accident that occurred at the LSU Hilltop Arboretum. The Louisiana Supreme Court recently denied writs seeking review of the lower courts’ rulings. Keogh Cox attorneys, Brian T. Butler and C. Reynolds LeBlanc, defended the case.

In Hebert v. Louisiana State Univ. Sys. Bd. of Supervisors Through Louisiana State Univ., the plaintiff went to the LSU Hilltop Arboretum to attend a wedding. Before the wedding, she went to the ladies’ room located in the outdoor pavilion area. The door to the restroom is controlled by an automatic door closer. The plaintiff alleged that the door began to close with “excessive force” when she exited the ladies’ room, and her finger was injured when it slid into the hinge-side of the door.

The plaintiff claimed the automatic door closer was defective because it was not properly adjusted at the time of the accident. The plaintiff retained an expert professional engineer to support her claims. The expert inspected the door and the door closer approximately 19 months after the incident. He testified that when he inspected the door, it was closing too fast, was out of adjustment, and had been improperly maintained. The plaintiff argued these findings showed the door was also defective at the time of the accident.

The expert also said the doors should have been inspected and adjusted every six months. The plaintiff argued the alleged problem with the door would have been discovered if it was inspected as her expert recommended.

Keogh Cox filed a Motion for Summary Judgment on behalf of the defendants. First, we argued the plaintiffs failed to produce evidence that the door was defective on the date of the accident. While the expert opined the door was defective when it was inspected nineteen months after the accident, the plaintiff had no evidence to show the alleged defect existed at the time of the accident. Keogh Cox asserted that the expert’s testimony claiming a defect was pure speculation. The court agreed and found the plaintiff failed to show the door presented an unreasonable risk of harm.

Second, we argued the plaintiff could not show LSU had prior notice that the door was defective at the time of the accident. As the door to the primary restroom on the premises, it was frequently used. There was no evidence of any prior complaints or reports of problems with the door before the accident. The plaintiff argued that notice could be found because LSU did not have a set inspection plan for the door as her expert recommended.

The court rejected this argument, stating “The opposite is true; in the absence of other facts such as recorded complaints about a defect or hazard, the lack of a plan of inspection implies that the public entity has no knowledge of dangerous defects or conditions.” Thus, the court found the plaintiff failed to show LSU had notice of the alleged problem with the door.

Reference:

Hebert v. Louisiana State Univ. Sys. Bd. of Supervisors Through Louisiana State Univ., 2025-0246 (La. App. 1 Cir. 11/7/25), 424 So. 3d 809, writ denied, 2025-01542 (La. 2/10/26), 425 So. 3d 1205.

“Constructive Knowledge” in Slip and Fall Suits: Time on Your Side

05.07.2020

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.