SLIP/TRIP AND FALLS IN LOUISIANA

            Louisiana law does not favor the victim in these types of personal injury cases.  A much heavier burden is placed on the injured person to prove that the landowner, merchant/store is at fault for injuries sustained.  The statute is La. R.S. 9:2800.6 that applies to all trip and fall or slip and fall cases where the location of the fall is at or in a store.  This is a “merchant liability statute.”  While there are countless cases on the topic, Jones v. Brookshire Grocery Co., 37,117 (La. App. 2 Cir. 5/14/03), 847 So. 2d 43 is a good outline of the standards.

            If a claim for premises liability (outside of a store) exists, applying La.C.C. Art 2315 (general negligence) or 2317.1 (premises liability), the same duty/risk analysis applies. 

            What duty does the merchant owe to its customers?

            A merchant owes a duty of reasonable care to its customers or “the general public” who use or enter his premises.  The merchant must exercise reasonable care to keep the aisles, passageways, and floors in a reasonably safe condition.  This includes reasonable efforts to keep the premises free of any hazardous conditions that may cause damage or injury.  And a landowner must discover any unreasonably dangerous conditions on the property; either correct/fix it or warn others of its presence.  This seems kind of vague – reasonable care? Reasonable efforts? Each case is fact driven so we must look at the specific facts of each case.

            What do you need to prove?

            In a claim against a merchant by someone injured while legally on their property for damages because of a fall, death or other loss sustained due to a condition existing on the property, the injured person (claimant) has the burden of proving, in addition to all other elements of the cause of action, ALL of the following:

1. The condition presented (created) an unreasonable risk of harm to the claimant AND that risk of harm was reasonably foreseeable.
2. The merchant either (a) created or (b) had actual or (c) constructive knowledge/notice of the condition that caused the damage BEFORE the incident.
3. The merchant failed to exercise reasonable care.  One way to determine reasonable care is to determine whether a written or verbal uniform policy exists regarding cleanup or safety procedures is insufficient, alone, to prove failure to exercise reasonable care.  Without a policy, the merchant would have a hard time explaining how they do so.

“Constructive notice” means that the condition existed for such a period of time that it would have/should have been discovered by a merchant who was using reasonable care.  Just having an employee in that area may not be enough, you would have to show that the employee knew or should have known of the hazard – was reasonable care used.

            Failing to prove any of these 3 will end the claim.[1] White also states that in addition to proving these 3 points, a plaintiff must present evidence that the hazardous condition existed for such a time that it would be sufficient to place the merchant on notice of the condition.  This is called the “temporal” element.[2] There is no set amount of time to pass, but the plaintiff must show it existed for long enough or “such a time period.”[3]

            You also need to show that the “thing” complained of was in the defendant’s custody.  So the “thing” contained a defect that presented an unreasonable risk of harm and that this defective condition caused the damages; and, the defendant knew or should’ve known of the defect.[4]

            What does the merchant have to prove?

            The merchant/store-owner has a duty of care to take reasonable protective measures, including periodic inspections of the property to ensure that it is kept free from hazards like substances on the floor or conditions that may cause a customer to fall.[5]  Determining “reasonable measures” is done on a case-by-case basis, as discussed in the Hardman and Ward cases.  So you look at the risks involved, the overall volume of business, time of day, section of store, type of business, etc. and the degree of vigilance must match those factors.

            Determining “Unreasonably Dangerous”

            While we are each entitled to our own opinions, in personal injury cases, in addition to our client’s opinions, we must look at how courts determine.  Courts use a risk-utility balancing test that includes these components:

1. The use or utility of the thing complained of;
2. The likelihood and magnitude of harm – including the obviousness and a noticeability of the thing;
3. The costs of preventing the harm – can it be fixed or removed?
4. The nature of the plaintiff’s activities at the time of the fall/injury – were they dangerous by nature?[6]

            Open and Obvious:

            Generally, a defendant has no duty to protect against “open and obvious” hazards.  So if the facts show the hazard should be obvious to everyone, then the condition may not be unreasonable and the defendant may owe no duty to the plaintiff.[7]  So the trip and fall duty is not just on the landowner, the pedestrian has a duty to see what should be seen and to determine if their pathway is clear.[8]  One factor to determine if the condition is unreasonably dangerous is if it may be observed by a potential victim – making it possible that even though you fell, if the condition is deemed to be open and obvious (other people would have seen it using “reasonable care”) then the landowner may not be liable.[9]  The hazard should be open and obvious to everyone who may potentially encounter it.[10]  But recently, the Louisiana Supreme Court stated that “open and obvious” is not stated in any of the premises liability statutes and is a “figment of judicial imagination.”[11]  

The more obvious the risk, the less likely it would be to cause injury because it would be avoided.  So location matters.  Was the hazard in a commonly traversed area?  Was it in an area not well trafficked?   I need to know was the hazard in an area where other visitors or shoppers would likely encounter it or in an area where they would be “forced” to go?

The Louisiana Supreme Court clarified where open and obvious is within the breach of duty element of the duty/risk analysis and is not a jurisprudential doctrine barring recovery, but only a factor of the risk/utility balancing test – considering the likelihood and magnitude of harm, and it’s not a consideration for determining the legal question of the existence of a duty. So it is improper to state that a defendant generally does not have a duty to protect against the open and obvious.  With limited exception, there is the duty to exercise reasonable care and to keep the property free from unreasonable risks of harm.  The breach of the duty element is a mixed question of law and fact.[12]

            Conclusion:

            Proving a slip and fall and trip and fall case in Louisiana can be very difficult.  Each case is fact intensive and must be properly evaluated.  Documentation is key in such cases.  When possible, taking photos at the scene are extremely important because it is common that a store/merchant does not have cameras showing that area or “the camera there is broken.” 

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[1]              White v. Wal–Mart Stores, Inc., 97–0393 (La.9/9/97), 699 So.2d 1081; Alexander v. Wal–Mart Stores, Inc., 96–1598 (La.App. 3d Cir.2/4/98), 707 So.2d 1292, writ denied, 98–0572 (La.4/24/98), 717 So.2d 1169. 

[2]              Turner v. Brookshire Grocery Company, 34,562 (La.App.2d Cir.4/4/01), 785 So.2d 161, citing Rodgers v. Food Lion, Inc., 32,856 (La.App.2d Cir.4/5/00), 756 So.2d 624, writ denied, 00–1268 (La.6/16/00), 765 So.2d 339; Davis v. Wal–Mart Stores, Inc., 31,542 (La.App.2d Cir.1/22/99), 726 So.2d 1101.

[3]              Kennedy v. Wal–Mart Stores, Inc., 98–1939 (La.4/13/99), 733 So.2d 1188.

[4]              Taylor v. Chipotle Mexican Grill, Inc., 18-238 (La. App. 5 Cir. 12/27/18), 263 So.3d 910, 914.

[5]              Hardman v. The Kroger Company, 34,250 (La.App.2d Cir.12/6/00), 775 So.2d 1093; Ward, supra; Stevens v. Winn Dixie of Louisiana, 95–0435 (La.App. 1st Cir.11/9/95), 664 So.2d 1207.

[6]              Bufkin v. Felipe’s Louisiana, LLC, 14-288 (La. 10/15/14), 171 So.3d 851, 856; Broussard v. State ex re. Office of State Buildings, 12-1238 (La. 4/5/13), 113 So.3d 175, 184.

[7]              Pitre v. La. Tech Univ., 95–1466, 95–1487 (La.5/10/96), 673 So.2d 585, 591.

[8]              Hutchinson v. Knights of Columbus, Council No. 5747, 2003–1533 (La.2/20/04), 866 So.2d 228, 235

[9]              Id.

[10]             Broussard, 113 So.3d at 184; Caserta v. Wal-Mart Stores, Inc., 12-853 (La. 6/22/12), 90 So.3d 1042, 1043 (per curiam); Hutchinson 5747, 03-1533 (La. 2/20/04), 866 So.2d 228, 234.

[11]             Farrell v. Circle K Stores, Inc., 2022-00849 (La. 3/17/23), 359 So. 3d 467, 475.

[12]             Id.