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Dangers of Trippin’ on Pot(holes)
by Ron Davis

The location of a pothole in a parking lot became the focal issue in a recent liability lawsuit against a Louisiana shopping center owner.

The shopping center, located in Monroe, is owned by Weingarten Realty Management Co., and the pothole location was essential to determining the accountability of Weingarten after a slip-and-fall incident occurred at the property.

The victim of the slip and fall, a 63-year-old woman, claimed that Weingarten was remiss in its duty to prevent her accident. She had fallen after exiting her car to shop at one of the stores at the shopping center, and she subsequently sued Weingarten for damages.

But the accident occurred at a spot in the parking lot where a car normally would park. She apparently failed to notice a pothole filled with water there, and as she stepped into the depression, she tripped and fell.

Evidence in the case showed that Weingarten knew of the general presence of potholes in the parking lot--and may have known of the pothole where the woman fell. But under Louisiana law, landowners are not required to "eliminate all variations in elevations existing along the countless cracks, seams, joints, and curbs" of their property.

A Louisiana court therefore ruled in favor of Weingarten, noting that the pothole at issue was not located on a crosswalk or an area otherwise designated primarily for pedestrian traffic. Instead, the judge added, "this defect was located in an area of the parking space that would ordinarily be protected by the presence of a parked vehicle."

The court also recognized the shopping center parking lot as being a "firm, relatively smooth, well-lighted and well-drained area" for the center's visitors to park.

The court concluded, "Weingarten Realty should not be held to a duty to maintain a perfect parking lot free from all defects, because such a duty would be impossible and cost-prohibitive."

On appeal, a Louisiana appellate court also ruled that the pothole did not pose an unreasonable risk of harm to patrons of the shopping center. (Kendall v. Weingarten Realty Mgmt. Co., 769 So.2d 171 [La.App. 2 Cir. 2000])

Decision: October 2000
Published: December 2000



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