Understanding La. R.S. 9:2800.6: The Definitive Guide to Louisiana Merchant Liability Law

If you slip and fall in a Louisiana business, your case lives or dies by one specific statute: Louisiana Revised Statute 9:2800.6, also known as the Merchant Liability Act.

Many people believe that if they fall in a store, the store is automatically responsible for their medical bills. This is a common misconception. In Louisiana, merchants are not “insurers” of their customers’ safety. Instead, the law places a very high burden of proof on the injured person to show that the merchant was negligent.

What is La. R.S. 9:2800.6?

The Quick Answer: La. R.S. 9:2800.6 is the Louisiana law that dictates when a business (merchant) is liable for a fall on their premises.

To win, a plaintiff must prove three things: the hazard created an unreasonable risk of harm, the merchant had actual or constructive notice of the hazard, and the merchant failed to exercise reasonable care to fix it.

Who is a “Merchant” Under the Law?

The first step in any case is determining if the defendant is actually a “merchant.” The statute defines a merchant as someone whose business is to sell goods, foods, wares, or merchandise at a fixed location.

• Retailers & Grocers: Stores like Rouse’s, Winn-Dixie, Home Depot, and Super 1 Foods are classic merchants.
• Hospitals & Government Buildings: Interestingly, courts have ruled that hospitals (Terrance v. Baton Rouge General) and government entities are not merchants under 9:2800.6. They are held to a general negligence standard, which is slightly different.
• Outside the Store: The law also covers sidewalks and parking lots under the merchant’s control, though these cases often hinge on whether the hazard was “open and obvious.”

The Three Prongs of Liability

To successfully sue a merchant, you must prove all three of the following elements. If you fail to prove even one, your case will be dismissed.

Unreasonable Risk of Harm (The Risk-Utility Test)
The hazard must be something that a reasonable person wouldn’t expect. Courts use a four-part balancing test to decide this:

• How useful was the condition? (e.g., A restocking cart has high utility).
• How likely was it to cause harm?
• How much would it cost to fix?
• The nature of the plaintiff’s activity.

Case Examples:

• The 10-Inch Box: In Guerrero v. Super 1 Foods, a small restocking box on the floor was deemed an unreasonable risk because it was too small to be “open and obvious.”
• The Vegetable Cart: In Massery v. Rouse’s, a cart was found to be a hazard, but the court also found the shopper 50% at fault because shoppers should stay alert.
• Industry Custom: In Upton v. Rouse’s, the court ruled that displaying watermelons on pallets is an “industry custom” and not necessarily an unreasonable risk.

Actual or Constructive Notice (The “Temporal” Element)

This is the most common reason lawsuits fail. You must prove the merchant knew about the spill (Actual Notice) or that it was there so long they should have known (Constructive Notice).

• The 10-Minute Rule: In Nash v. Rouse’s, a man slipped on rice. Because an employee had swept the aisle 10 minutes prior, the court ruled 10 minutes wasn’t long enough to give the store constructive notice.
• Positive Evidence Required: In Crawford v. Brookshire, the court emphasized that you cannot simply guess how long a spill was there. You need “positive evidence,” like footprints in a spill or melting ice, to prove time has passed.

Failure to Exercise Reasonable Care
The merchant must have failed to act reasonably. This usually involves their cleaning and inspection procedures. However, the law explicitly states that the lack of a written cleanup policy is not enough, on its own, to prove the store was negligent.

Independent Contractors & The Two-Contract Defense

What happens if a store hires a cleaning company and they leave water on the floor? This creates a “web of liability.”

• The Rule: Generally, a merchant is not liable for the actions of a subcontractor unless they retain “operational control” over them.
• The Thompson Case: In Thompson v. Winn-Dixie, the jury originally split fault between the store and a cleaning company. The Supreme Court eventually ruled that fault should be apportioned based on who had the most control over the hazard at the moment of the fall.

Common Defenses Used by Merchants

If you file a claim, expect the merchant to use these common legal defenses:

1. Open and Obvious: If the hazard was so big or visible that anyone paying attention would have seen it (like a giant blue pallet), the merchant may owe no duty to protect you.
2. Summary Judgment: This is a “pre-trial” motion where the merchant asks the judge to throw the case out because the plaintiff lacks enough evidence on the “temporal” (time) element.
3. Admissibility of Evidence: As seen in Watts v. Golden Nugget, unauthenticated photos or undated evidence can be tossed out of court, leaving you with no case.

Why You Need a Skilled Personal Injury Attorney

As the cases of Ginger Crawford and Mary Upton show, even when you are truly injured, a technicality in the law or a lack of “positive evidence” can result in your case being dismissed.

Navigating La. R.S. 9:2800.6 requires an attorney who knows how to:

• Subpoena surveillance video before it is deleted.
• Interview employees to establish how long a hazard existed.
• Defeat “Summary Judgment” motions that try to kill your case early.

If you have been injured, don’t rely on speculation. Contact the Berniard Law Firm today at 504-521-6000 for a technical evaluation of your claim.

If you’ve been injured and need to know what evidence to collect immediately, visit our Guide to Proving a Louisiana Slip and Fall.