Store Owners/Merchants: Defending Negligence Claims Based on Failure of Constructive Notice
Written by Kristin Lausten
“Slip-and-fall” or “trip-and-fall” cases are the most common negligence claims made against store owners and merchants. Almost always, the claim arises from an allegation that some dangerous condition existed on the floor or near the floor.
Under Louisiana law, “[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.” La. R.S. § 9:2800.6.
In slip/trip and fall cases, in addition to proving injury, a plaintiff must prove that:
- The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable
- The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence and
- The merchant failed to exercise reasonable care
La. R.S. 9:2800.6(B).
A Quick Primer on Constructive Notice
Many times, liability turns on whether the store owner had notice, either actual or constructive, of the alleged hazardous condition.
In this article, we take a quick look at what it means for a merchant to have “constructive notice.” The Statute defines “constructive notice” as proof that “the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.” La. R.S. 9:2800.6(C).
There are many nuances to this rule and it can be complicated, but, in general, the courts look to three issues when analyzing constructive notice:
- What are the store’s inspection procedures
- What are the specific facts about inspection in the case at bar and
- The time duration during which the hazardous condition was on the floor
A recent case is illustrative. In Scott v. Dillard’s, Inc., 14-755 (La. App. 5 Cir. 3/11/15), 169 So. 3d 468, the plaintiff claimed she was injured when she slipped on a paper sign that had apparently fallen off the wall. The evidence showed that the store had policies and procedures to have managers “sweep the floors” to check for any hazards. In this case, the manager had done his “sweep” just prior to the store opening at 8:00 in the morning. He had made his sweep, and remembered it, specifically because big crowds were expected since it was “Black Friday,” the day after Thanksgiving. The plaintiff said she slipped at about 8:30. Under those circumstances, the Court held that there was NO constructive notice and the plaintiff’s case was denied. There was no evidence that the manager (or any other employee) saw the sign and the time-period was not long enough to say the store should have known.
Contrasting Cases Show Nuance
Issues related to premises liability are complex and can be nuanced. A couple of grocery store cases demonstrate the need for experienced defense counsel.
In Roberts v. Hartford Fire Ins. Co., App.3 Cir.2006, 926 So.2d 121, 2005-1178 (La.App. 3 Cir. 4/5/06), a grocery store was held to NOT have constructive notice where the plaintiff slipped on a clear puddle of water that was about the size of a baking pan or a dinner platter. The fact that there were no footprints or shopping cart tracks in or near the puddle indicated that the puddle had not been there long enough for the store employees to have noticed it.
By contrast, in Nelson v. Southeast Food, Inc., App. 2 Cir.2005, 892 So.2d 790, 39,157 (La.App. 2 Cir. 1/28/05), grocery store employees were held to have constructive notice where video footage showed that a puddle formed in an aisle that grew in size over about a half hour, that, during the half hour, store employees came into the aisle and that they and customers were walking around, stepping over and otherwise avoiding the puddle.
In addition to lack of actual or constructive notice, an experienced premises liability defense attorney can argue other defenses such as:
- Open and obvious and other comparative fault
- Not a hazardous condition
- Condition was caused by some third party (like a customer)
- Failure to mitigate
- Adequate warning
- Protective measures
- Lack of causation
- No/minimal injury or pre-existing injury
Contact an Experienced Insurance Defense Lawyer
Do you need assistance defending against a premises liability claim? Kristin M. Lausten is an experienced Louisiana insurance defense lawyer with a team of lawyers and support staff ready and able to provide the best defense for you and your business. Lausten has experience with the full spectrum of defense cases, from small to complex.
The author may be contacted at:
Kristin M. Lausten
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.