On April 18, 2012, Benjamin Tomaso visited the Home Depot in Slidell, Louisiana. He parked his car near the main entrance while his fiancé entered the store to return an item. When he noticed lawn tractors near the entrance, he stepped out of his car and sat on one of the tractors to “check it out.” A Home Depot employee asked Mr. Tomaso to remove himself from the tractor because there was insufficient room for the employee to push shopping carts between Mr. Tomaso’s parked car and the tractor. While attempting to step down from the tractor, Mr. Tomaso fell. At first, he was not sure what caused him to fall, but after he fell, he noticed a small zip tie on the floorplate of the tractor and concluded that it was the only possible cause of his accident.

Mr. Tomaso filed a slip-and-fall suit against Home Depot, U.S.A., Inc. (“Home Depot”), claiming that he suffered extensive injuries as a result of his foot being snagged by a hazard – the zip tie – that had negligently not been removed from the subject tractor. Home Depot filed a motion for summary judgment, asserting that Mr. Tomaso failed to meet the requisite burden of proof governing negligence claims against merchants pursuant to La. R.S. 9:2800.6 (pdf). Specifically, Home Depot argued that the zip tie was not a defective condition or otherwise inherently dangerous, and that Mr. Tomaso presented no evidence that any injury caused by a zip tie was foreseeable or that Home Depot should have known an injury could occur. Additionally, Home Depot urged that Mr. Tomaso could not prove causation because he did not know what caused him to fall initially, and only after he saw the zip tie, Mr. Tomaso considered that to be the sole possible cause.

In opposition to Home Depot’s motion, Mr. Tomaso introduced excerpts from the deposition of Home Depot’s assistant manager, who testified that the zip tie is placed on the tractor by the manufacturer to secure it during transit, and that the zip tie is usually removed by the customer after purchase. In support of its motion, Home Depot introduced the affidavits of two Home Depot employees stating that neither employee had ever witnessed or taken an incident report where a customer tripped on a zip tie connected to a lawn tractor on display.

Following a hearing, the trial court granted Home Depot’s motion and dismissed Mr. Tomaso’s action. Mr. Tomaso appealed, asserting that the trial court erred in finding: (1) Home Depot was not negligent for failure to remove zip ties from the tractor before allowing Mr. Tomaso to climb on it for inspection; (2) the negligently left zip tie on the tractor was not a hazard; (3) that the negligently left zip tie was not an unreasonable risk of harm; and (4) that Home Depot’s supervisor employee was not negligent in ordering Mr. Tomaso to immediately remove himself from the tractor without warning him of the negligent hazardous zip tie as he was stepping down from the tractor.

Although Mr. Tomaso did not specify which substantive law he believed was applicable to his case, the Court of Appeal discussed two relevant statutes: merchant liability under La. R.S. 9:2800.6 and premises liability arising from ownership or custody under La. Civil Code art. 2317.1 (pdf). The Court noted that the applicability of the merchant liability statute was questionable given that the accident took place outside the store entrance in the parking lot and did not arise from Home Depot’s
failure to specifically keep its aisles, passageways, and floors in a reasonably safe condition. Nonetheless, the Court found that summary judgment was appropriate under either statute because there was no evidence to suggest that Home Depot had knowledge of a danger or risk of harm created by the zip tie before Mr. Tomaso’s accident, and proof thereof was required under either theory of recovery. In addition, the Court reasoned that Mr. Tomaso’s post hoc speculation that the zip tie caused his accident was insufficient to provide the factual support necessary to show he would be able to meet his burden of proving causation at trial.

Finding Mr. Tomaso failed to come forward with evidence sufficient to create a genuine dispute for trial on the essential elements of his claim, the Court of Appeal affirmed the trial court’s judgment granting summary judgment in favor of Home Depot and dismissing Mr. Tomaso’s claims.

Take-Away: To recover under either the merchant liability statute (La. R.S. 9:2800.6) or the premises liability statute based on ownership or custody (La. C. C. art. 2317.1), a slip-and-fall plaintiff bears the burden of proving that the defendant had actual or constructive knowledge of a danger or risk of harm before the
plaintiff’s accident. Additionally, post hoc speculation as to what caused an accident is not enough to show that a plaintiff would be able to meet his or her burden of proof at trial.

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