175 So. 3d 469
La. Ct. App.2015Background
- On Dec. 16, 2012 Donna Ferlicca entered a Brookshire Grocery in Monroe, LA; after briefly exiting and returning in rainy weather she slipped leaving the store and fractured her left arm.
- Brookshire had entrance safety measures: permanent carpeting, two rubber-backed mats, a waist-high four-sided "Wet Floor" sign visible at the automatic doors, a dry mop available, and employees who inspected/mopped the area.
- Store employees inspected the entrance within minutes before the fall, and surveillance video shows a clerk straightening mats ~5 minutes before and a manager mopping and inspecting less than one minute before the incident.
- Ferlicca conceded the wet-floor sign was waist-high and easily visible and wore rain boots; she alleged she slipped on a "slippery" substance (not proven).
- Trial court awarded Ferlicca $25,921.12 and assigned 90% fault to Brookshire; the appellate court reversed, finding plaintiff failed to prove the statutory elements of La. R.S. 9:2800.6 and rendering judgment for Brookshire.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff proved an unreasonably dangerous condition existed and was present for a sufficient time | Ferlicca argued she slipped on a slippery substance other than water that made the floor unreasonably dangerous | Brookshire argued no evidence the condition (beyond normal tracked-in water) existed long enough or was other than water; safety measures were reasonable | Held for Brookshire — plaintiff failed to prove the temporal element and existence of a hazardous substance beyond tracked-in water |
| Whether merchant had actual or constructive notice of the condition | Ferlicca contended store employees should have known of the dangerous condition | Brookshire showed inspections, mopping, and a visible warning sign shortly before the fall | Held for Brookshire — no constructive or actual notice shown given recent inspections and cleanup |
| Whether the condition was open and obvious, negating merchant duty | Ferlicca implicitly argued the condition was not open/obvious (slippery residue) | Brookshire emphasized the visible waist-high wet-floor sign and entrance mats as open/obvious warnings | Held for Brookshire — warning and mats supported that condition was open/obvious or otherwise not unreasonably dangerous |
| Allocation of fault / comparative negligence | Ferlicca did not concede significant fault | Brookshire argued Ferlicca should have seen the sign and avoided the hazard | Held for Brookshire — appellate court reversed trial allocation and dismissed suit (no recovery); costs taxed to plaintiff |
Key Cases Cited
- Turner v. Brookshire Grocery Co., 785 So.2d 161 (La. App. 2d Cir. 2001) (upholding merchant safety measures on a rainy day where mats, inspections, and a warning were used)
- White v. Wal-Mart Stores, Inc., 699 So.2d 1081 (La. 1997) (plaintiff must show condition existed for some period sufficient to place merchant on notice)
- Kennedy v. Wal-Mart Stores, Inc., 733 So.2d 1188 (La. 1999) (temporal element requires positive showing of existence before fall)
- Caserta v. Wal-Mart Stores, Inc., 90 So.3d 1042 (La. 2012) (no duty for open and obvious hazards)
- Hardman v. Kroger, Co., 775 So.2d 1093 (La. App. 2d Cir. 2000) (merchant not insurer of customer safety; analysis considers whether rainy-day measures were organized, prudent, and reasonable)