PARKING LOT ISSUES AND CASES
Louisiana law is not written in favor of those people who trip and fall or slip in fall in parking lots. While the standard of care is slightly lower than a slip and fall or trip and fall inside of a retail store, it is still very difficult to prove/win these cases. I will outline what is the standard of care, what questions must be asked in every case and my overall impression of what every injured person must be aware of when making a decision to pursue legal action against the parking lot owner and/or manager.
Risk of Harm:
In determining whether the risk of harm is unreasonable, there are numerous factors. The two main factors are:
- The degree to which a danger may be observed by a potential victim. How easy is it to see?
- The number of falls previously caused by the “alleged” defective condition.
Questions to be asked if its believed to be a deviation from the normal surface
While many questions are very case specific, here are a few questions that I ask in all cases.
- Have falls been caused by this condition before? If so, how many and when?
- Was the ground wet or dry?
- Has my client been to this place before? If so, has my client walked past or over this “defect” before? Are they familiar with the parking lot and how so?
- Was the “defect” located in a walkway or in an area where it would be anticipated people would be or could be expected to walk?
- When the fall occurred, what was my client doing? Talking on the phone, distracted?
Louisiana Civil Code Article 2317.1 is our guide
Damages caused by “ruin, vice or defect” is fully described in this article. The law states that the owner or custodian of the property is responsible for damages that occur due to the “ruin, vice or defect” but only if we can show that the owner knew of the problem, or by “exercising reasonable care” that he should have known of the problem; AND that the problem could have been prevented or fixed by using reasonable care; AND that he failed to do so.
Is there a fixed rule or standard to determine an Unreasonable Risk of Harm
No. There is no standard as each case is different, each fall is different, and the specific facts are unique to each case. Therefore, a judge or jury must determine if the “thing” presents an unreasonable risk of harm. It will determine whether the social value and utility of the hazard outweigh and justify its potential harm to others.[1] So the judge or jury will determine if the alleged defect presents an unreasonable risk of harm based on those case specific facts.[2]
Irregularities in surfaces are common
It is common for streets, sidewalks, driveways, and parking lots to have deviations and not perfectly smooth surfaces – irregularities. Courts have recognized this and noted that it is not the duty of the owner of these locations to eliminate all variations in elevations along the cracks, seams, joints, and curbs. These surfaces are not required to be smooth and free from deviations because to require that would be impossible.[3] But the defendant landowner can’t rely on this “unreasonable analysis” alone.
Not every minor imperfection or irregularity in the “thing” or spot of the fall is a defect that gives rise to delictual responsibility. That irregularity or imperfection must be of such a nature as to constitute a dangerous condition which would reasonably be expected to cause injury to a regular person exercising ordinary or normal care, meaning a regular person behaving normally and walking normally in that particular situation.[4] The law only requires property owners to keep their property (premises) in a safe condition for use in a manner consistent with the purpose for which the property is intended to be used.[5] So you can see that is a general statement from the courts and now understand why each case is fact specific.
What makes it unreasonable
The answer is a mixture of facts and law. The judge or jury will ultimately determine if the area of the fall presented an unreasonable risk of harm. Many items are taken into consideration and because it requires a balancing of the risk and utility of the area, it is not a simple rule of law that can be applied to the facts of all cases. So the facts and circumstances of each case must be considered in making this determination.[6]
Does the size of the crack or deviation matter?
Yes it does! A crack of less than 1/8” wide and a height difference of ½” that caused a
person to fall and no known history of falls at that spot was noted, was found by the court to not be sufficient enough to make the landowner liable.[7]
Why would the courts and law support un-smooth parking lots in many cases? Many courts follow this – the cost to eliminate all such minor defects is too much; the cost to keep surfaces free from defects is impossible and cost prohibitive.[8]
Conclusion
So what does this all mean? Trip and fall cases are difficult to win. Courts have stated that each case must be evaluated on its own facts and circumstances. The law seems to favor the property owner. Is the spot where you fell one of those cost prohibitive acceptable defects referenced above? Have others fallen there and been injured? These are all questions that should be answered to know if you have a claim or not. I have handled trip and fall cases and would be honored to evaluate your situation.
[1] Reed v. Walmart Stores, Inc., 97-1174 (La. 3/4/98), 708 So.2d 362.
[2] Johnson v. Brookshire Grocery Co., Inc., 32,770 (La. App. 2d Cir. 3/1/00), 754 So.2d 346, writ denied, 00-0938 (La. 5/26/00), 762 So.2d 1107.
[3] Reed
[4] Deville v. State Farm Ins. Co., 617 So. 2d 1255 (La.App. 3 Cir. 1993).
[5] Kerry v. Basco, 96-289 (La.App. 3 Cir. 10/9/96); 687 So. 2d 420.
[6] Dupree v. City of New Orleans, 99-3651 (La. 8/31/00), 765 So.2d 1002; Waller v. Shelter Mut. Ins. Co., 41,215 (La. App. 2d Cir. 6/28/06), 935 So.2d 288.
[7] McGehee v. Seville Square Condominiums Homeowners Association, Sabrier, and Scottsdale Insurance Company, No. 2002 -CA – 719 (La. App. 1 Cir. 12/11/02), 836 So.2d 306
[8] Reed.
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:
- The condition presented (created) an unreasonable risk of harm to the claimant AND that risk of harm was reasonably foreseeable.
- The merchant either (a) created or (b) had actual or (c) constructive knowledge/notice of the condition that caused the damage BEFORE the incident.
- 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:
- The use or utility of the thing complained of;
- The likelihood and magnitude of harm – including the obviousness and a noticeability of the thing;
- The costs of preventing the harm – can it be fixed or removed?
- 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.”
[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.