Published by The Pellegrin Firm December 27, 2019

In a recent decision, the Louisiana Third Circuit Court of Appeal affirmed a Lafayette district judge’s decision to grant summary judgment on liability for a patron injured after slipping in a liquid substance at a Super 1 supermarket. The case was heard by the court of appeal on the defendant’s application for supervisory writs. The sole avenue of recovery against a merchant for a dangerous condition is La. R.S. 9:2800.6, also known as the merchant liability statute.

In order to prevail on such a claim, a plaintiff must show that employees of a merchant/store had actual or constructive notice of a dangerous condition and failed to remedy it. The plaintiff does not have to show that employees of a merchant caused the dangerous condition. Showing that the condition existed, the merchant had actual or constructive notice of it, and that the merchant failed to remedy it is enough. Constructive notice is defined in the statute as meaning that the merchant or its employees would have discovered the dangerous condition had they exercised reasonable care.

It is usually hard for plaintiffs to prevail on merchant liability claims because an essential element of the claim is proving that the merchant or its employees had actual knowledge of the dangerous condition or the condition existed long enough for the merchant or employees to have constructive knowledge of it.

In the present case, there was no evidence of where the liquid came from. However, there was video evidence of the liquid present on the floor, multiple employees walking by the area repeatedly, and no one cleaning it up for over seventy minutes. The majority of the court of appeal found this circumstantial evidence to be enough to definitively satisfy the “actual or constructive” notice element of the claim.

One judge dissented, finding that it was inappropriate to gauge actual or constructive notice on the part of store employees on a motion for summary judgment. According to the dissenting judge, determining the subjective intent or knowledge of employees requires a trial on the merits. The case is Guidry v. Brookshire Grocery Company, et. al., Docket No. 19-322 in the court of appeal.