Slip and Fall

UPDATE ON SLIP AND FALL CASES IN LOUISIANA

By: Michael C. Palmintier

12/13/12

***

Consider the lowly “Slip and Fall”. It could certainly be seen as the “redheaded stepchild” of all personal injury work undertaken in the American Civil Justice System. For the practitioner on either side of such cases, this cause of action holds none of the glamor found in other areas, none of the engineering challenges of products liability, none of the scientific inquiry of medical malpractice and none of the tradition of maritime law. It’s the slapstick of modern tort law, the stuff of Keystone Cops or old Saturday morning cartoons – a banana peel in the halls of justice.

And yet, when we consider that the U.S. economy has become driven to a large extent by the retail sale of goods in stores designed for pedestrian consumers, directed toward shelves lined with shiny products for sale; when we contemplate literally billions of trips per year by buyers of all ages down these corridors of consumption; when we keep in mind the extent to which the art and science of display has evolved to the end that the prospective buyer is mesmerized into the purchase of everything from avocados to zip-locked bags…..it comes as no surprise that folks slip, trip, stumble and fall down the aisles of American consumerism every day.

As a result, a considerable body of tort law has developed around the injuries sustained when these annoying and embarrassing incidents happen. Indeed, they are no laughing matter and the injuries sustained by consumers can be catastrophic and even deadly. Likewise, the price to commerce created by these disruptions and the cost of remedying them is considerable. The statutory and jurisprudential law which has grown up around the “Slip and Fall” is extensive and challenging. Louisiana law on this subject is no exception. It is this body of law, including the statutory pronouncements which have significantly affected it, which is the subject of this brief paper.

 

THE EVOLUTION OF THE BURDEN OF PROOF IN SLIP AND FALL CASES.

Louisiana courts long recognized a duty owed by store owners to their patrons. Generally, this was a duty to exercise ordinary care to keep aisles, passageways, and floors in reasonably safe condition. The duty included the requirement of a reasonable effort to keep floors free from objects which might give rise to a slip and fall.

[See, e.g., Bartell v. Serio, 180 So. 460, 462 (La. App. Orl. 1938) (citing Farrow v. John R. Thompson Co., 137 So. 604, 605 (La. App. Orl. 1931)); Hay v. Sears, Roebuck & Co., 224 So. 2d

496, 498 (La. App. 3d Cir. 1969); Tripkovich v. Winn-Dixie La. Inc., 284 So. 2d 80, 81 (La. App.

4th Cir.), writ denied, 286 So. 2d 663 (1973) (citing Fontanille v. Winn-Dixie La., Inc., 260 So. 2d

71 (La. App. 4th Cir. 1972))] 1

 

1 Pamela A. Turgeau, White v. Wal-Mart Stores, Inc.: The Louisiana Supreme Court Ends the Reign of the

Plaintiff in Slip and Fall Cases Against Merchants, 44 Loy. L. Rev. 193, 208 (1998)

In the second half of the 20th century, Louisiana courts began to lean toward injured

parties in the struggle to prove that this duty had been breached. Toward the end of the 1960’s the circuits were divided as to just how far this favor would extend. [See, for example, Lang v.

Winn-Dixie Louisiana, Inc. 230 So.2d 383 (La. App. 1st Cir. 1969), writ denied, 233 So. 2d 252 (La. 1970) and Lofton v, Travelers Ins. Co. 208 So. 2d at 742 (La. App.3rd Cir, 1968)]. Gradually, the Supreme Court adopted the most plaintiff-favorable course in a series of decisions which culminated in its 1987 holding in McCardie v. Wal-Mart Stores, Inc., 511 So. 2d 1134

(La. 1987). This was a case in which the plaintiff was significantly injured when she slipped on a clear liquid and fell on the floor of one of the cosmetic counters in defendant’s store. The trial court ruling in favor of the merchant-defendant was upheld by the Second Circuit. On writs, the Court reversed in favor of plaintiff in a concise ruling with profound implications. It found:

“The law is clear that once a person proves that he slipped and fell in a store because of a foreign substance on the floor, the burden shifts to the store owner to exculpate itself from the presumption of negligence which has arisen. The store owner is required to prove that its employees did not cause the hazard and that it exercised such a degree of care that it would have known under most circumstances of a hazard caused by customers. Diligent protective measures by store operators will lead to the actual discovery of most hazards. The degree of diligence, of course, must be commensurate with the risk involved, as determined by the overall volume of business, the time of day, section of the store, and other such considerations. Brown v. Winn-Dixie of Louisiana, Inc., 452 So.2d 685 (La.1984).” (Id. at page 112, Emphasis ours.)

In hindsight, the holding in McCardie seems to have been the proverbial straw that broke the legislative camel’s back. In the following year, the Louisiana Legislature adopted R.S.

9:2800.6 . In its original form, this statute addressed the burden of proof for slip and fall injuries. It recognized the duty of the merchant to keep its premises reasonably safe and defined a shift in the burden of proof to the defendant, once the plaintiff proved that the accident was caused by a hazardous condition. But it also began the imposition of the legislative will on the courts’ perceived excesses in the creation of difficult evidentiary standards for store owners sued for injury on their premises.2

2 The title of the 1988 version of Louisiana Revised Statute § 9:2800.6 was “Liability of a Merchant for Injuries Sustained by a Person While on the Premises of the Merchant”. It directly over-ruled the portions of McCardie which implied that every employee of the merchant must be called to meet the shifted burden of proof:

….. C. In exculpating himself from liability under this Subsection, the merchant need not introduce the testimony of every employee of the merchant or any particular

proportion thereof, but is only required to introduce the testimony of any employee shown to have actually created the hazardous condition and those employees and management personnel whose job responsibilities included inspection or cleanup of the area where the accident giving rise to the damages occurred.

accident giving rise to the damages occurred.

With this modest beginning, the tide had turned against plaintiffs. In subsequent

amendments, the statute became more rigorous in its establishment of plaintiffs’ burden of proof. For example, the 1990 amendment was an extreme departure from the more restrained earlier version. It read:

 

LSA-R.S. 9:2800.6

  • 2800.6. Burden of proof in claims against merchants
  1. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
  2. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, and in addition to all other elements of his cause of action, that:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable; and

(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and

(3) The merchant failed to exercise reasonable care.

  1. Definitions:

(1) “Constructive notice” means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business.

  1. Nothing herein shall affect any liability which a merchant may have under Civil Code

Arts. 660, 667, 669, 2317, 2322 or 2695. (Emphasis ours)

The new law shifted the burden from the its prior division between the merchant and its patron. It placed that burden of proof squarely upon the “claimant”.

patron. It placed that burden of proof squarely upon the “claimant”.

 

An early interpretation of the 1990 amendment to 9:2800.6 by the Louisiana Supreme Court came in, Welch v. Winn-Dixie, 655 So. 2d at 309, (La. 1995). This was a slip and fall case in which plaintiff alleged she slipped and fell in oil allowed to remain in the defendant’s aisle. The Court reversed the lower courts and found that the plaintiff had met the statutory requirements for constructive notice by showing that the defendant had no written inspection procedures, no documentation of inspections, and no consistent safety policies for its employees to follow. The majority ruled that the length of time that a substance is on the floor becomes less relevant where the defendant has no mechanism for the detection of a dangerous condition.

Then, in White v. Wal-Mart, 699 So. 2d at 1082, (La. 1997), the Court overruled Welch and presented an entirely different perspective on the requirements of 9:2800.6. The case involved a slip and fall caused by a clear liquid on the floor of a Wal-Mart store and dealt with the issue of constructive notice. Plaintiff had been down the aisle once and was proceeding in the opposite direction when she fell. She did not see where the spill came from and couldn’t specify how long it had been there. After losing in both lower courts, Wal-Mart sought writs, arguing the improper application of 9:2800.6. It argued that the appellate court erred by basing its finding of constructive notice on Wal-Mart’s failure to show that the spill had not been on the floor at an earlier time.

In reversing the Fifth Circuit, the Court held that 9:2800.6 (specifically the 1990 amendments to the Act) does not allow for shifting the burden to the merchant to prove that it did not breach the statutory duty. It found that a claimant relying on constructive notice has the burden of presenting positive evidence to prove that the injury-causing condition existed for “some period of time” sufficient to place the merchant on notice

as to its existence. Id. 1082. The Court analyzed the language of the statute in light of principles of statutory interpretation. It concluded that constructive notice is one of the defined elements of the Act and that the statute clearly and unambiguously requires a plaintiff to prove that the defendant had constructive notice of the hazardous condition prior to the plaintiff’s fall.

In a sweeping departure from previous case law defining the burden of proof for constructive knowledge, the Court stated:

“There is a temporal element included: “such a period of time …” The statute does not allow for the inference of constructive notice absent some showing of this temporal element. The claimant must make a positive showing of the existence of the condition prior to the fall. A defendant merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall. Notwithstanding that such would require proving a negative, the statute simply does not provide for a shifting of the burden.” Id. 1084.

“Though there is no bright line time period, a claimant must show that “the condition existed for such a period of time … ” Whether the period of time is sufficiently lengthy

 

that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in

minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. This is not an impossible burden.” Id.

1084 and 1085.”

The decision in White made clear that the previous era of plaintiff-favorable treatment in slip and fall cases was at an end. Reaction to the holding, beginning with a vigorous dissent

by Chief Justice Calegero, was unequivocal in its criticism of the majority. Though the opinion must be described as a quantum shift in the jurisprudential landscape of this area of the law– one which is decidedly pro-defendant – it is undeniable that the legislature left the Court little room for interpretation to the contrary. What’s more, the opinion was handed down in a time which can fairly be described as one of legislative constriction of tort law in the state of Louisiana.

This era included the First Extraordinary Session of 1996, in which ACTS NOS. 1, 2 and 3 were expressly described as “Tort Reform”, making recovery by plaintiffs for injuries caused by others more difficult. In fact, during this special session, which occurred before White was handed down; 9:2800.6 was again amended, this time to specifically address holdings by the Supreme Court which was perceived to be plaintiff-favorable. It seems likely that the Court was influenced by this palpable shift in legislative attitude. Examples of those changes are highlighted here:

LSA-R.S. 9:2800.6

  • 2800.6. Burden of proof in claims against merchants

 

Currentness

  1. [Same as the 1990 amendment]

In a negligence claim brought against a merchant by a person lawfully on the merchant’s

 

B.

premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk

of harm was reasonably foreseeable.

(2) The merchant either created or had actual or constructive notice of the condition

which caused the damage, prior to the occurrence.

(3) The merchant failed to exercise reasonable care. In determining reasonable care, the

 

absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

  1. Definitions:

(1) “Constructive notice” means the claimant has proven that the condition existed for

such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise

 

at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.

Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. D.

660, 667, 669, 2317, 2322, or 2695.

 

Although it interpreted the 1990 amendments, the holding in White has implicitly been held to apply to these 1996 changes. The case has remained the guidepost for slip and fall cases in Louisiana for over 15 years. Perhaps it owes its longevity to the breadth of its interpretive language, which has allowed plaintiffs in the lower courts to maintain access to recovery, though on a much more limited basis.

 

PRACTICE IN THE WAKE OF WHITE V. WAL-MART.3

It comes as no surprise that since the passage and amendment of 9:2800.6 and the Court’s ruling in White, attorneys for injured people have struggled to meet the considerable challenge of proving constructive notice in slip and fall cases. In fact, the overwhelming majority of recent cases considered here deal with just such situations. Nonetheless, the practitioner should not lose sight of the availability of other approaches to the establishment of liability on the part of merchant defendants. The first means of success for plaintiffs is established in the Act itself.

 

Merchant-created conditions.

Section B. of the statute eliminates the shift in the burden of proof established in

McCardie and other cases. At the same time, it expressly preserves plaintiffs’ cause of action

 

3 As can be seen throughout the cases cited here, the great majority of findings by Courts of Appeal and by Federal District Courts are responses to Motions for Summary Judgment, mostly granting and/or sustaining them in favor of the merchant.

 

where the merchant creates the dangerous condition through its own actions or failures to act. It provides:

….[T]he claimant shall have the burden of proving, in addition to all other elements of his cause of action, that:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable; and

(2) The merchant either created or had actual or constructive notice of the condition

which caused the damage, prior to the occurrence; and

(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

[9:2800.6(B)]

Thus, where the unreasonable risk of harm is one actually created by the merchant, through its employee, representative or agent, plaintiff’s burden is met.

Melancon v. Popeye’s Famous Fried Chicken, (La.App. 3 Cir. 3/16/11) 59 So.3d 513 (2011) Plaintiff slipped and fell on a wet surface while entering a fast food restaurant. Her primary theory was that the merchant created the dangerous condition by mopping during regular business hours. This argument was rejected on MSJ in the trial court. In Affirming, Judge

Gremillion found that for various reasons mopping does not create an unreasonable risk of harm. The court qualified this notion with a reference to the clear evidence (through the video surveillance in the store) that proper placement of signs warning of the wet floors had occurred when plaintiff inattentively walked through and fell. He said:

“Jurisprudence has specifically found that mopped floors do not create an unreasonable risk of harm when the appropriate signage is used to warn patrons of the condition of the floor. See Rowell v. Hollywood Casino Shreveport, 43,306 (La.App. 2 Cir.2008), 996 So.2d 476; Lee v. Ryan’s Family Steak Houses, Inc.,

06–1400 (La.App. 1 Cir. 5/4/07), 960 So.2d 1042, writ denied, 07–1577 (La.10/12/07), 965 So.2d 405.”

(Id. At page 4.)

Pellegrin v. Louisiana Gaming-1, (La.App. 5 Cir. 4/24/12) 93 So.3d 645 (2012)

Plaintiff tripped and fell at a casino, when she came into contact with a raised area in carpet in the gaming area. She contended that there was “positive, un-rebutted evidence … that the alleged carpet defect was created by the merchant or its employees” and that there was direct and circumstantial evidence that defendants had actual or constructive notice of the defect. (It was also

 

contended that the trial court erred in failing to consider its claims of strict liability as contained in

La. C.C. arts. 2322 and 2317.1.) Summary judgment was affirmed.

Plaintiffs correctly argued:

“…. that because defendants created this particular defect in the carpet, it is unnecessary for them to also prove defendants had notice of the defect. … Savoie v. Southwest Louisiana Hosp. Ass’n, 03–982 (La.App. 3 Cir. 2/25/04), 866 So.2d 1078; Ruby v. Jaeger, 99–1235 (La.App. 4 Cir. 3/22/00), 759 So.2d 905; Rodriguez v. Wal–Mart Stores, Inc., 02–104 (La.App. 3 Cir. 6/5/02), 820 So.2d 1190.

The Appellate Court distinguished these cases, finding (as did the district court judge) that no evidence had been presented to show that the defendant itself created the dangerous condition.

It found that the voluminous evidence submitted by the plaintiff, both direct and circumstantial, was.. “not sufficient to prove that the “rumple” in the carpet was created by Boomtown employees. The cases cited by plaintiffs are therefore not controlling under the facts of the present case.” Comment: This is a questionable holding in light of the posture of the case on summary judgment and the evidence submitted, which included deposition testimony of defendants employees, third party witnesses and so forth.

Gray v. Wal-Mart Louisiana, L.L.C., U.S. Fifth Circuit Court of Appeal August 7, 2012 ; Slip Copy (2012) 2012 WL 3205524;

Plaintiff slipped in a puddle of water at the defendant’s store, shortly after Hurricane Gustav. Suit

in state court was removed to the US District Court for the Western District of Louisiana on grounds of diversity. Plaintiff alleged that the dangerous condition was caused by the defendant through its employees. The 5th cir. affirmed the district court grant of summary judgment, stating:

 

“Here, then, in order to show that Wal–Mart “create[d]” the condition that caused Gray’s injury, Appellants must create an issue of fact regarding whether a Wal–Mart employee was responsible for causing the leak that injured Gray. But Appellants pointed neither the district court nor this court to any evidence showing that Wal–Mart’s employees were responsible for the holes in Wal–Mart’s roof, nor any evidence showing that Wal–Mart was responsible for maintaining its own roof. In the absence of evidence

connecting Wal–Mart employees to the roof leak, no issue of fact exists regarding whether

Wal–Mart “created” the roof leak that injured Gray.” (Gray, supra, at III.)

Burkhamer v. Wal-mart 2005 WL 1155848 USDC, E.D. La. No. Civ.A.04-1309. May 6, 2005. In this MSJ, the merchant argued that Plaintiff couldn’t establish constructive notice. In denying the motion, the court held:

“However, the issue of constructive notice is not reached provided that Plaintiff

can demonstrate the merchant created the hazardous condition alleged. After reviewing the evidence in a light favorable to the non-moving party, the Court finds that sufficient evidence exists to allow a reasonable fact-finder to infer that the spill was created by Defendant.

Specifically, the proximity of the clear substance in relation to the cooler/freezer allows a reasonable fact-finder to infer that the spill was created by a leaking

 

cooler/freezer. This inference is further supported by the accident report, which states that there were no cups, bottles, or other customer spill generating evidence in the area. Consequently, a genuine issue of material fact exists…”

 

Conditions not created by the merchant – Actual notice.

If the dangerous condition was not created by the Merchant-defendant, plaintiff may still prevail if he can show that the merchant had notice of the condition. As the statute states, this notice can be “actual” or it can be “constructive” [9:2800.6 (B) (2)]. It is not surprising that actual notice cases are few and far between, since the proof requires a showing of the state of mind of

the representative of the merchant. Nonetheless, this type of proof can be made and the case law demonstrates plaintiffs’ efforts to bring the defendant within this specific provision.

Colar,v. Winn–Dixie Montgomery, Inc. 2011 WL 293756 C A No. 09–755–JJB. | Jan. 26, 2011

USDC M.D. Louisiana. (Brady, J.);. In this case involving a slip and fall in liquid in defendant’s store, plaintiff alleged, among other things, that the defendant had actual notice of the danger because an employee was quickly on the scene after her fall. She argued that this was proof that

the employee was near the spill and knew about it. The district court rejected this position, stating:

“Plaintiff argues that because one of Winn Dixie’s employees (Lydia Sicard) came to plaintiff’s aid after she fell, the employee was in the vicinity and thus had notice of the substance on the floor. However, plaintiff’s own statement of facts indicates that Ms. Sicard was not in the area where plaintiff fell (lobby) but was in another section (“the nearby floral shop”). Plaintiff has produced no evidence that any employee had actual knowledge of the substance before plaintiff fell.” 9:2800.6

Davis v. Target Corp. of Minnesota, 2012 WL 3158875, Slip Copy (2012); Civil Action No.

11–0802. | Aug. 3, 2012. USDC E.D. Louisiana. (Lemelle, J.) In this slip and fall, video showed a child spilling a drink and plaintiff falling 25 seconds later. Davis contended that Target had actual notice due to the presence of at least three Target employees in the immediate vicinity. In the alternative, he contended that due to the proximity of the employees, a genuine issue of material fact exists as to Target’s alleged constructive notice. The MSJ was granted. The court addressed both actual and constructive notice. As to the former, the judge stated:

“Actual notice, as is apparent by its name, requires some actual witnessing of the condition/event, or at least an actual knowledge of a routine and expected dangerous condition at a certain location. See Ward v. ITT Specialty Risk Services, Inc., 739 So.2d 251, 254 (La.App.2d Cir.1999); Barton v. Wal–Mart Stores, Inc., 704 So.2d 361 (La.App. 3d Cir.1997).”

 

The court first pointed out that there were no admissions by employees that they witnessed the spill. He then considered plaintiffs’ arguments as to the video. After viewing the tape, he stated:

“While this does put the employee in the same general corridor that contains the spill for 1–2 seconds, there is no evidence that the employee saw the spill or otherwise should have seen it. See (Rec. Doc. No. 29–2 at 32); (Defs.’ Video). A claim to the contrary amounts to little more than a bare assertion. See Bergeron v. Am. Nat. Prop. & Cas. Co., No. 07–9484, 2009 WL

1969247, at 3 (E.D.La. July 08, 2009) (citations omitted).”

The plaintiff also argued from the video that two other store employees were twenty to thirty feet away and that this was actual notice, citing Blackman v. Brookshire Grocery Co., 966 So.2d 1185,

1191 (La.App. 3d Cir.2007). Again, the court rejected plaintiffs’ contentions:

“However in that case, actual notice occurred due to a customer informing a manager of the spill prior to the accident. Id. The court commented on the presence of five or six employees in the area only in relation to the store’s ability to respond to the spill within the time frame presented by the facts of that case. Id. This does not support Plaintiff’s contention of actual notice.”

Comment: One must question this extensive evaluation of fact evidence within the context of a Motion for Summary Judgment. Was there an issue of fact revealed in the video from which a jury might reasonably have decided that the employee saw the danger, but did nothing to correct it? Did the court substitute its conclusion for that of the trier of fact?

 

Conditions not created by the merchant – Constructive Notice.

9:2800.6 specifically provides that where the dangerous condition was not created by the merchant and where no evidence of actual notice exists, plaintiffs may still prove the case where they can show that the defendant had constructive notice of the danger. The statute goes on to define constructive notice:

  1. Definitions:

“Constructive notice” means the claimant has proven that the condition existed for

 

(1)

 

such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

 

Logic tells us that this is the point of greatest contention in this area of the law. After all, as seen above, it is a rare case in which a store employee would admit to having known about a danger and done nothing about it. Likewise, merchant-created defects in the premises seem not as common as those created by third parties. Indeed, this logic is supported by the actual numbers of cases

 

reported on the subject. By a margin of at least two to one, constructive notice cases outnumber the other areas of inquiry. The cases also reveal the creativity of both plaintiffs and defendants in their struggle to prevail on this element of the slip and fall burden of proof.

In the years since White and the amendments to 9:2800.6, certain methodologies have developed in the attempt by plaintiffs to meet the “temporal element” required to prove constructive notice. These strategies rely on circumstance and implication – the deduction of conclusions from the existence of facts in the record. Naturally, these methods of proof begin to recur in the case law as plaintiffs have succeeded through their application. Examples of these methods of proof include:

  • Cart Tracks – Whether or not a liquid on the floor reveals cart tracks, foot prints or other indications that the substance had been there long enough that customer traffic had passed through it and therefore that the condition has existed for enough time to give rise to liability.
  • Video surveillance – The use of the ubiquitous video surveillance of most stores to show that a danger has existed for a sufficient time to give rise to liability.
  • Aging of a foreign substance – showing that the produce or other substance on which plaintiff slipped had been on the floor long enough that it would turn brown, or change in some other way to indicate a greater length of time had passed.
  • The size of the spill – the larger the spill, the longer it has been there, since liquids have a tendency to spread when they are spilled.
  • The rate at which a drip occurs– relative to the size of the spill, this may show that the substance has been in place for a greater time if the drip is slow and the spill is large.
  • Employee proximity [See 9:2800.6 (C)].

These efforts also demonstrate the difficulty of proving notice on the part of any party. Fortunately for plaintiffs, courts have, to some extent, accepted these methods of proof, especially within the context of the showing of genuine issues of material fact for purposes of the defeat of summary judgment.

Woods, et ux v. Wal-Mart Louisiana, LLC. 2012 WL 5926178, USDC, W.D. Louisiana, Civil action no. 11–cv–1622. | Nov. 26, 2012. Magistrate Judge Kathleen Kay heard this Motion for Summary Judgment in a case against the merchant for injuries sustained as a result of a slip and fall in Jennings. After review the history following 9:2800.6 and White, the court quoted the core principle set forth in that case:

“Though there is no bright line time period, a claimant must show that “the condition existed for such a period of time….” Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time

 

before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall.

Plaintiff had presented considerable evidence through her own testimony and that of witnesses that the spill had been there a long time because it was “discolored”, had “track marks”, was “dirty” and had “buggy marks” in it. In denying the MSJ the court stated:

“Several courts have concluded that, under Louisiana law, testimony regarding the presence of shopping cart tracks and dirt in a spill raises a material issue of fact as to whether the defendant had constructive notice of the condition. Similarly, at least two courts have found that dirty produce on the floor satisfied the temporal requirement. Several other courts would have considered testimony regarding the presence of buggy tracks and dirty as sufficient to satisfy the temporal requirement had such evidence been presented. (Pellegrin v. Winn Dixie Montgomery, LLC, CIV.A. 10–4521, 2011 WL

4729015 (E.D.La. Oct.5, 2011); Johnson v. Wal–Mart Louisiana, LLC, CIV.A. 08–1216,

2009 WL 2447922 (W.D.La. Aug.10, 2009) Lacy v. ABC Ins. Co., 97–1182 (La.App. 4 Cir.

4/1/98), 712 So.2d 189, 192; Beninate v. Wal–Mart Stores, Inc., 97–802 La.App. 5 Cir.

12/10/97, 704 So.2d 851, 856;”

Demouy v. Sam’s Wholesale, Inc., 2011 WL 1117 (La.App. 1 Cir. 6/10/11). Plaintiff alleged that she was injured in the check out line when she slipped and fell. She claimed that there was a spill and a grape which caused her to fall. To prove constructive notice, she showed a video which lasted

2 minutes and 18 seconds. She argued that, since no spill and no grape appeared on the tape, that the danger had been in existence for at least that time. The trial court disagreed and granted summary judgment. In affirming, the First Circuit held:

“[T]he video is inconclusive as to whether the spill occurred in the two minutes and eighteen seconds prior to plaintiff’s fall and it does not reveal whether water and/or grapes are present on the floor during this period of time. Mere speculation or suggestion is not enough to meet the stringent burden imposed upon a plaintiff by LSA–R.S. 9:2800.6. Allen v. Wal–Mart Stores, Inc., 37,352, p. 5 (La.6/25/03), 850 So.2d 895, 898. Accordingly, plaintiff is unable to meet her evidentiary burden of proof at trial to make a positive showing that the dangerous condition existed for some period of time prior to her fall as required by LSA–R.S.

9:2800.6.”

Carter v. Zurich America Ins. Co., 2012 WL 702270 (USDC MD La. March 1, 2012) (Brady, J.) Laytonia Carter slipped in some water while shopping in one of defendant Academy’s stores in Baton Rouge. Two Academy employees were standing talking and facing a walkway. As she approached

 

and drew even with them, she slipped and fell in “a sizable water puddle.” The merchant filed MSJ and plaintiff responded. She pointed out that it took her 20–25 seconds to get down the aisle and that the employees had been standing there during this time frame. Since there were no customers there she reasoned that the puddle must have been there for at least that time period. Defendant argued that there was no direct evidence that the employees actually saw the puddle, and there was evidence that the store manager had inspected the area a few minutes prior to the accident and did not see any water or other substance on the floor. Confronted with this quandary, the court stated:

‘The court finds that plaintiff has produced “some evidence” of the temporal element, albeit less than a minute. The next question is whether the 25 second time frame was long enough under the circumstances of this case to place the merchant defendant on notice. It has been said that the question of whether the period of time is sufficiently lengthy that the merchant should have discovered the condition is necessarily a fact question. White at 1084. The court likewise concludes that undisputed facts of this case render summary judgment inappropriate. The court agrees with plaintiff that established facts in this case are sufficient to distinguish this case from the cases cited by defendant.”

Flowers v. Wal-Mart Stores, Inc., — So.3d —- (2012), 12-140 (La.App. 5 Cir. 7/31/12) Plaintiff slipped and fell in a puddle of water as she was obtaining a gallon of water from the shelves where such items were stored. As she was approaching the jugs, she noticed one which was only a third full. Then, as she was turning to place the jug which she was to purchase in her cart, she slipped in a dinner plate-sized puddle. When she fell her container of water also fell and burst. Its contents were joined with the water already there. Plaintiff had argued that these facts were sufficient to defeat summary judgment since as she testified she believed that the water came from a slow leak in the nearly empty bottle. The district court granted MSJ.

In affirming, the court rejected the plaintiff’s deductive reasoning and distinguished three previous cases in which constructive notice was demonstrated. [See Rodgers v. Food Lion, 32,856 (La.App. 2 Cir. 4/5/00), 756 So.2d 624, 628; Smart v. Winn–Dixie of Louisiana, Inc., 99–435, (La.App. 5 Cir. 9/28/99), 742 So.2d 1062,; Spano v. Sav–A–Center, Inc., 210 F.3d 369 (5 Cir.2000)] Among other “points of distinction”, the court noted:

“In Smart, Spano, and Rodgers, the courts considered the puddles’ large size in giving credence to the plaintiffs’ assertions that the liquid existed for some period of time prior to the falls. In those cases, evidence was presented that the size of the puddles ranged between two and four feet in diameter. In this case, however, Ms. Flowers’ own testimony was that the puddle was about the size of a dinner plate, which is typically between ten and 12 inches in diameter.” …..

“The only similarity between the present case and the above-cited cases is Rodgers’ finding of the “absence of an observable, rapid leak.” We are mindful, however, that particular finding in Rodgers was coupled with additional findings regarding the puddle’s large size as well as the possibility that Food Lion may have neglected to check the area for several hours before the accident. In this case, however, the size of the puddle was

comparably smaller than the puddle in Rodgers, and Ms. Flowers did not present any

evidence regarding when the area was last inspected.”

The case stands as an example of the exactitude demanded by some courts in slip and fall, constructive knowledge cases.

 

PRACTICE POINTS.

  • Removal to Federal Court. It can be safely argued that no case under 9:2800.6(B) based on constructive knowledge is removable to Federal Court on the basis of diversity jurisdiction. This is so by virtue of the specific requirements of the statute that plaintiff show notice (knowledge) of the danger, either actual or constructive in order to succeed. By definition, such a notice requirement mandates the participation of a human being in the acquisition of the essential knowledge. Unless the store employee lives in another state, but works in Louisiana, that person will be a Louisiana resident. Diversity is destroyed by the particular requirements of the law.
  • Get ready for MSJ. Inevitably the argument will be that “summary judgment is appropriate because plaintiff will be unable to present evidence sufficient to prove all of the essential elements of her claim as required by 9:2800.6.”
  • Immediately try to preserve the evidence. Do not rely on the assumption that you will be allowed an adverse presumption when the merchant defendant has not preserved the video, photos or other physical evidence. The theory of spoliation of evidence, if proven, entitles the prevailing party to an evidentiary presumption, that presumption being – had the evidence not been destroyed it would have been detrimental to the adverse party’s case. However, the case law is laden with cases in which the elements of the evidentiary concept, such as intent or fraud, are not met by the complaining party and the presumption not applied. In Gladney v. Milam, 911 So.2d 366, 39,982 La.App. 2 Cir. 9/21/05, (La.App. 2 Cir. 2005), for example, the 2nd Circuit pointed out:

 

“In civil litigation, the theory of spoliation of evidence refers to an

intentional destruction of evidence for the purpose of depriving the opposing parties of its use. Holloway v. Midland Risk Insurance Co., 36,262 (La.App. 2d Cir.10/30/02), 832 So.2d 1004. Generally, a litigant’s failure to produce evidence that is available to him raises a presumption that the evidence would have been detrimental to his case. However, this adverse presumption is not applicable when the failure to produce the evidence is adequately explained. Holloway, supra.”

  • The Video is crucial. (See the cases cited herein.)
  • Initial client and witness interviews must be conducted with great care.