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47 Seconds, Not Enough Time for Clean-up
by Ron Davis

Controversy over an injury that occurred at a Louisiana Wal-Mart store has finally reached a determination.

The Wal-Mart store is located in a shopping area in Prairieville. And the injury occurred when a shopper was at the store and accompanied by her ex-husband and three-year-old daughter.

As the woman stepped into the store’s refrigerator to locate an item she was considering buying, she slipped and fell on the ingredients of a broken jar, landing on the right side of her body. The fall apparently resulted in a personal injury. And she sued Wal-Mart Louisiana, LLC, seeking damages “for pain and suffering, medical expenses, and lost wages.”

She and her ex-husband had traced the source of the fall and subsequent injury to a broken Tostitos jar containing salsa. But a question arose regarding the cause of her fall. In Louisiana, the Merchant Liability Statute imposes a heavy burden of proof on anyone seeking monetary damages arising from a fall on a merchant’s premises.

At the same time, however, a merchant owes a duty to persons who use his or her premises. The merchant must exercise “reasonable care” to keep aisles, passageway, and floors in a reasonably safe condition. And that duty “includes a reasonable effort to keep the premises “free of any hazardous conditions which reasonably give rise to damage.”

Moreover, the injured person must show that the conditions presented “an unreasonable risk of harm” and that the risk of harm was “reasonably.”

Finally, the evidence must show that the merchant either created or had “actual or constructive notice of the condition that caused the damage prior to the occurrence” and that the merchant failed to exercise its safety obligations.

In a lawsuit resulting from such an injury, failure to prove each element of the requirements would prove “fatal” to the merchant’s arguments.

However, the undisputed video footage from a nearby camera shows that, in this case, the salsa was on the floor of the Wal-Mart for only 47 seconds prior to the shopper’s fall. Also, notably, the injured woman failed to offer any evidence that Wal-Mart’s employees were aware of the salsa spill.

The judge in the case ruled in favor of Wal-Mart, while noting, “During the time period of the accident, several other shoppers passed over the exact area of the fall without any incident”…. “The injured shopper has failed to present positive evidence to create a genuine issue of material fact as to whether Wal-Mart created or had actual or constructive knowledge of the broken jar of salsa on the floor before the accident.”

(Jessica Herbert v. Wal-Mart Louisiana, LLC, Slip Copy, 2016 WL 37507)

Decision: March 2016
Published: March 2016



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