174 So. 3d 679
La. Ct. App.2015Background
- On April 18, 2012, Benjamin Tomaso sat on a lawn tractor on display outside a Home Depot; when asked to get off he fell and later noticed a small zip tie on the tractor’s footplate.
- Tomaso sued Home Depot alleging the zip tie was a negligently left hazard that snagged his foot and caused his injuries.
- Home Depot moved for summary judgment, arguing the zip tie was not inherently dangerous, Tomaso could not prove causation or that Home Depot had notice of any dangerous condition.
- Home Depot submitted affidavits and testimony that zip ties are placed by the manufacturer for transit, that employees had no reports of similar incidents, and that customers normally remove them after purchase.
- Tomaso relied on his subjective belief that the zip tie was the only possible cause but produced no evidence Home Depot had actual or constructive notice of the risk.
- The trial court granted summary judgment for Home Depot; the appellate court affirmed, finding Tomaso failed to show notice and failed to establish he could meet his trial burden on causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the zip tie on the display lawn tractor presented an unreasonable risk of harm | Tomaso: zip tie was a nonobvious hazard that created an unreasonably dangerous condition | Home Depot: zip tie is a benign manufacturer transit device, not inherently dangerous | Held: No evidence Home Depot knew or should have known of a risk; summary judgment affirmed |
| Whether Home Depot had actual or constructive notice of the zip tie as a hazardous condition | Tomaso: Home Depot should have removed the zip tie before display | Home Depot: employees had no knowledge or incident reports showing notice | Held: No factual support Tomaso could prove notice at trial; movant met its burden |
| Whether Tomaso can prove causation (that the zip tie caused his fall) | Tomaso: after falling he observed the zip tie and concluded it caused the fall | Home Depot: Tomaso admitted he was not sure what caused the fall; this is speculative | Held: Speculation cannot sustain causation; Tomaso failed to show he could meet burden at trial |
| Whether merchant-liability or article 2317.1 theories apply to impose liability | Tomaso: merchant-liability or defect doctrine should apply to hold Home Depot responsible | Home Depot: regardless of theory, plaintiff must show notice/knowledge and causation | Held: Court applied either statute or art. 2317.1 and concluded essential elements (notice/causation) were not met |
Key Cases Cited
- Broussard v. State ex rel. Office of State Bldgs., 113 So.3d 175 (La. 2013) (sets out the four-factor risk-utility test for whether a defect is unreasonably dangerous)
- Reed v. Home Depot U.S.A., Inc., 843 So.2d 588 (La. App. 2d Cir.) (speculation about cause of a fall insufficient to survive summary judgment)
- Babin v. Winn-Dixie La., Inc., 764 So.2d 37 (La. 2000) (speculation cannot supply the factual support necessary to meet plaintiff’s burden at trial)
- Mayes v. Wausau Underwriters Ins. Co., 104 So.3d 785 (La. App. 3d Cir.) (merchant-liability statute applied to patron injured by furniture/fixture)
- Vinccinelli v. Musso, 818 So.2d 163 (La. App. 1st Cir.) (elements required under La. C.C. art. 2317.1 for defective thing liability)