Before filing suit against a merchant in a slip and fall case, a plaintiff must consider whether he or she will be able to satisfy the statutory elements set out in Louisiana Revised Statute 9:2800.6. This statute places a heavy burden on a plaintiff to prove a negligence claim against a merchant. The potential difficulty in proving this type of claim is demonstrated in the recent decision of the Louisiana Second Circuit Court of Appeal in Ferlicca v. Brookshire Grocery Store.

The plaintiff, Donna Ferlicca, slipped, fell and broke her arm in the entrance of a grocery store on a rainy day in Monroe, Louisiana. She won a judgment against the store in a bench trial and the store appealed. On appeal, the Louisiana Second Circuit explained that the plaintiff had the burden of proving the following elements of 9:2800.6: (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; and (3) the merchant failed to exercise reasonable care.

The appellate court noted that requiring a merchant to keep the entrance/exit areas completely dry during rainy weather, or to hold the merchant responsible for every slick place due to tracked in water would, in effect, make the merchant an insurer of the customer’s safety. A merchant’s duty in this situation is to exercise reasonable care to promptly alleviate wet areas and to alert customers to the constant threat of water that might drip on the floor as the result of other customers’ activities.

The appellate court discussed the numerous safety measures in place on the day of the accident, including permanent carpeting installed at the front entrance, two rubber-backed mats placed next to the permanent carpeting and an easily visible, waist-high “Wet Floor” sign at the entrance. The court concluded that store’s safety measures on the day of the accident were organized, prudent, and reasonable and that the plaintiff failed to meet her burden of proof under 9:2800.6. Accordingly, the trial court’s judgment was reversed and judgment was rendered in favor of the store at the plaintiff’s cost.

Ferlicca v. Brookshire Grocery Store

Trevor M. Cutaiar
tcutaiar@mblb.com