Retailer Liability in Louisiana Issues And

Retailer Liability in Louisiana Issues and Answers By The Truitt Law Firm, LLC Jack E. (Bobby) Truitt Jennifer Cortes Poirier THE TRUITT LAW FIRM, L.L.C., 251 HIGHWAY 21, MADISONVILLE, LOUISIANA 70447 TELEPHONE: (985) 792-1062 ~ FACSIMILE: (985) 792-1065 ~www.truittlaw.com ~ [email protected] LOUISIANA SEMINAR Issues and Answers for Retailers in Louisiana A. Slip/Trip and Fall Liability 1. From McCardie v. Wal-Mart to White v. Wal-Mart: A History of the Jurisprudence In 1987, the Louisiana Supreme Court ruled, in McCardie v. Wal-Mart Stores, Inc., 511 So.2d 1134 (La. 1987), that Wal-Mart was liable to a patron who had slipped and fallen on a foreign substance in one of its stores. Wal-Mart defended the claim by putting forth testimony from its employees that it maintained a “safety sweep” whereby an employee inspected the store’s aisles before and after lunch; he was required to punch a time clock showing when these inspections took place. The time card on the date in question was incomplete. The Supreme Court reviewed the prior case law of Louisiana and held that Wal-Mart had failed to exculpate itself from liability. The Court held that, once the plaintiff proved that she had an accident as a result of a foreign substance, the burden of proof shifted to the retailer to show that it was not at fault. The Court stated: “The burden of proof shifts to the owner of the store to exculpate itself from the presumption that it was negligent. The result of this shift in the burden of proof is to relieve the plaintiff of his burden to show the defendant's actual or constructive knowledge of the spill.” Id. at 1136. The Court went on: “The store operator is required to prove that his employees did not cause the hazard and that he exercised such a degree of care that he would have known under most circumstances of a hazard caused by customers.” As expressed in many of these types of cases, the reason that the courts offered for “shifting” the burden of proof to the merchant was that the merchant usually erected displays and signs to distract a patron’s attention from the floor so that the merchant should have the heavier burden of proof. See Broussard v. Wal-Mart Stores, Inc., 741 So.2d 65 (La. App. 3rd Cir. 1999) (customer's duty to use reasonable care and to avoid obvious hazards is diminished if shelved merchandise distracts the customer). However, the McCardie decision caught the attention of the Louisiana Legislature, which enacted Louisiana Revised Statute 9:2800.6 the following year, to legislatively overrule the “burden shifting” of the McCardie decision; however, the eventual version of the statute would evolve in light of court decisions. La. R. S. 9:2800.6, as it now exists and which is still the applicable law for accidents occurring on a retailer’s premises, provides as follows: A. 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. B. 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, 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. C. 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. D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695. A law review article written shortly after the passage of R. S. 9:2800.6, referred to the coming era, in the wake of the passage of this statute, as the “end of the reign of the plaintiff in slip and fall cases against merchants,” and while that might have been overly optimistic, the Supreme Court would soon interpret the statute and make it very difficult for a plaintiff to prevail in a slip and fall case. “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 (1998). Thus, the pendulum had pretty much swung from one extreme (the burden shifting to the merchant to exonerate itself) to the other extreme (the plaintiff having the burden of proof on every element of proof). Although the Louisiana Legislature had clearly expressed its intentions on the issue of retailer liability in the State, the courts set about to judicially erode what the legislative branch had tried to etch in stone. In Welch v. Winn Dixie Stores, Inc., 655 So.2d 309 (La. 1995), the Supreme Court tried to re-write the statute. There, the plaintiff claimed that she had slipped and fallen in cooking oil on the floor of the store. The trier of fact found in her favor and awarded damages, but the Court of Appeal reversed the lower court and held that the plaintiff had failed to carry her burden of proving that the merchant had actual or constructive notice of the hazard. The Supreme Court, reversed, though, and ruled in favor of the patron. The Supreme Court looked at several cases decided since the passage of the statute and stated the following: To date, this Court has not addressed plaintiff's required burden of proof set out in La.R.S. 9:2800.6 as amended in 1990. However, several Louisiana appellate courts have expressed opinions on the issue. In Oalmann v. K-Mart Corp., 630 So.2d 911 (La.App. 4th Cir.1993), the Fourth Circuit Court of Appeal affirmed a judgment for plaintiff who fell at a K-Mart when she slipped in a puddle of water inside the store on a rainy day. K-Mart's Accident Report noted the weather as “rainy”, which was sufficient for the court to conclude that K-Mart had knowledge of the weather conditions on the day of the accident and should have known that the floor would become slippery, presenting a dangerous condition. The court specifically noted that there was no evidence establishing precisely how long the floor was wet prior to plaintiff's fall. However, the dangerous condition created by the water was still foreseeable by the defendant because of the volume of business and the constant influx of customers. Even in the absence of precise evidence, the Court concluded that the accumulation of water at the entrance existed for such a period of time that K-Mart should have discovered the danger, and thus, K-Mart had the requisite constructive knowledge. Oalmann, 630 So.2d 911, 912. In Parker v. Winn-Dixie Louisiana, Inc., 615 So.2d 378 (La.App. 5th Cir.1993), the Fifth Circuit Court of Appeal found Winn-Dixie liable for plaintiff's slip and fall on a clear liquid substance. There was testimony that no one had inspected the aisle five to ten minutes before the accident occurred and that defendant had no knowledge of the last time the aisle had been inspected prior to the accident. After the accident, a bottle of hydrogen peroxide was found with the top on but the safety seal punctured. The court concluded that Winn-Dixie had constructive notice of the liquid spill on the floor. In Saucier v. Kugler, Inc., 628 So.2d 1309 (La.App. 3rd Cir.1993), plaintiff slipped on a lemon in a grocery store and the Third Circuit Court of Appeal affirmed the trial court's judgment for the plaintiff. The Court of Appeal noted that there was no store policy regarding how inspections were to be conducted. This directly affected whether the merchant exercised reasonable care, as required by La.R.S. 9:2800.6, to keep his aisles in a reasonably safe condition and free of hazardous conditions. Whether the merchant's protective measures were reasonable must be determined in light of the circumstances of each case, along with the risk involved, the merchant's type and volume of merchandise, the type of display, the floor space utilized for customer service, the volume of business, the time of day, the section of the store, and other such considerations.

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