Insurance Dispute Lawyer Blog
In Louisiana, a merchant’s duty to keep the premises safe for its customers is narrowly defined by the law. La. R.S. 9:2800.6 specifically deals with merchants and requires the injured party to prove:
(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.
(3) The merchant failed to exercise reasonable care.
Mayes v. Wausau Underwriters Ins. Co. illustrates what can happen when the injured party is unfamiliar with the requirements to prove negligence by the merchant.
In Mayes, the claimant brought his truck to a Broussard tire shop for service. While waiting, he sat down on a chair that had a limit of 300 pounds. The claimant weighed over 300 pounds. The chair collapsed, and he sustained some injuries. The claimant sued the tire shop and its insurance company. He alleged that the tire shop had a duty to inspect underneath the chairs and that had the merchant exercised reasonable care, it would have discovered a defect in the chair.
The trial court disagreed with the claimant, and the appellate court affirmed. The trial court did not find that a merchant has to inspect the bottom of its chairs unless a chair is creaking or showing signs of instability. Here, the courts did not view the chair in question showed signs of instability before the claimant sat on it. Both parties’ experts agreed that any defect in the chair was hidden to the naked eye, so that the tire shop could not have had constructive notice.
“Constructive notice” means that the defect existed for a period of time that was long enough for the merchant to uncover the defect and fix it. By failing to prove the second element, the claimant was also unable to show that his injury was reasonably foreseeable or that the tire shop failed to exercise reasonable care.
Sometimes claimants without direct evidence of negligence by a merchant will rely on circumstantial evidence under the doctrine of res ipsa loquitur. Res ipsa loquitur allows the judge or jury to infer that the accident could not have occurred without some negligent act by the defendant. The injured party must show:
(1) He was injured in an accident that would not ordinarily happen without negligence.
(2) The negligence is more likely than not attributable to the merchant.
In Mayes, the appellate court found that the claimant failed to prove the second element because the accident could be attributed to a cause other than the merchant.