92 2372 La.App. 1 Cir. 8/22/94, Welch v. Winn-Dixie Louisiana, Inc.

• Decision Date: 22 August 1994
• Citation: 645 So.2d 647
• Parties: 92 2372 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 647

645 So.2d 647

92 2372 La.App. 1 Cir. 8/22/94

Maxine WELCH and James M. Welch, Individually and on Behalf of Their Minor Children, Wendy Welch and Sabrina Welch v. WINN-DIXIE LOUISIANA, INC., and XYZ Insurance Company.

No. 92 CA 2372.

Court of Appeal of Louisiana First Circuit.

Aug. 22, 1994.

Writ Granted Nov. 29, 1994.

Michael J. Samanie, Houma, for plaintiffs-appellees.

Carlos E. Lazarus, Houma, for defendant-appellant Winn-Dixie Louisiana.

Before WATKINS, SHORTESS, GONZALES, FOGG and PARRO, JJ.

[92 2372 La.App. 1 Cir. 2] SHORTESS, Judge.

Maxine Welch (plaintiff) filed suit against Winn-Dixie Louisiana, Inc. ¹ (defendant), alleging she was injured when she slipped in cooking oil and fell in defendant's store in Houma, Louisiana, on June 25, 1991. She also asserted a claim for loss of consortium on behalf of her minor daughters Wendy Welch and Sabrina Welch. ² The jury entered a verdict in favor of plaintiff and fixed her damages at $257,000.00. The jury further found plaintiff's daughters had not suffered a loss of consortium. The trial court rendered judgment in accordance with the jury's verdict. Defendant has appealed. ³

LAW

Before 1975, slip-and-fall cases generally were governed by ordinary negligence principles. A plaintiff had to prove every element of his case, including the lack of reasonable inspection procedures by the merchant and actual or constructive notice of the hazardous substance. See Lofton v. Travelers Ins. Co., 208 So.2d 739, 741 (La.App. 3d Cir.), writ denied, 252 La. 457, 211 So.2d 327 (1968). In a few cases this burden was found to be too onerous on the plaintiff. In Lang v. Winn-Dixie Louisiana, 230 So.2d 383 (La.App. 1st Cir.1969), writ denied, 255 La. 815, 233 So.2d 252 (1970), and Joynes v. Valloft & Dreaux, 1 So.2d 108 (La.App.Orl.Cir.1941), the courts held that where plaintiff proved a dangerous object caused him to slip and fall, the merchant had the burden of making a prima facie showing that it made reasonably careful [92 2372 La.App. 1 Cir. 3] and thorough inspections. In 1975, the Louisiana Supreme Court adopted the rule first enunciated in Joynes, holding in Kavlich v. Kramer, 315 So.2d 282 (La.1975), that when the plaintiff establishes he slipped and fell on a substance on the merchant's floor, the "burden then shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that it was negligent." 315 So.2d at 285.

The supreme court increased the defendant's burden with the succeeding cases of Gonzales v. Winn-Dixie Louisiana, 326 So.2d 486 (La.1976); Brown v. Winn-Dixie Louisiana, 452 So.2d 685 (La.1984); and McCardie v. Wal-Mart Stores, 511 So.2d 1134 (La.1987). In Brown the court stated:

The critical effect of the partial shifting of the evidentiary burden was the virtual elimination of proof of actual or constructive knowledge as an element of plaintiff's case.... Under the new evidentiary burden, the store operator is required to prove that his employees did not cause the hazard and that he exercised such a degree of care that he would have known under most circumstances of a hazard caused by customers.

452 So.2d at 686. Then, in McCardie, the court held that "[m]erely proving adequate clean up procedures is insufficient to prove a spill was not caused by one of the store's own employees." The supreme court reversed the lower courts in that case because the merchant "failed to prove that none of its employees caused the spill" as "[m]any of the employees who could have caused the spill were not asked to testify." 511 So.2d at 1136.

In reaction to McCardie, the Louisiana Legislature enacted Louisiana Revised Statute 9:2800.6 by Acts 1988, No. 714. The act provided the statute applied to all cases tried on or after its effective date, July 18, 1988. The statute provided that once the plaintiff proved he suffered damages as a result of a hazardous condition on the defendant's premises, the burden of proof shifted to the merchant to prove he acted in a reasonably prudent manner in exercising the duty of care he owed to the person to keep the premises free of any [92 2372 La.App. 1 Cir. 4] hazardous conditions. The statute explicitly provided the merchant need not introduce the testimony of every employee.

Two years later, the legislature amended Revised Statute 9:2800.6. This amendment substantially changed the burden of proof. As a result of the amendment, the statute now provides, in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.

B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, and in addition to all other elements of his cause of action, that:

(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; and

(3) The merchant failed to exercise reasonable care.

C. Definitions:

(1) "Constructive notice" means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

We have reviewed the legislative history of this amendment, including the minutes of the House Civil Law and Procedure Committee and the Senate Committee on Judiciary A meetings. It is clear from those documents that the legislature intended to revert to the pre-Kavlich law.

Acts 1990, Number 1025, which amended Revised Statute 9:2800.6, provided in Section 2 that the act shall apply only to "causes of action which arise on or after the effective date of this Act," which was September 1, 1990. Plaintiff's cause of action, which arose June 25, 1991, is governed by the [92 2372 La.App. 1 Cir. 5] current version of Revised Statute 9:2800.6. Plaintiff thus had the burden of proving she slipped and fell due to a condition on defendant's premises which presented an unreasonable risk of harm, that the risk of harm was reasonably foreseeable, that defendant either created the condition or had actual or constructive notice of the condition prior to the occurrence, and that defendant failed to exercise reasonable care.

FACTS

Defendant does not dispute plaintiff suffered an injury as a result of an accident in its store on June 25, 1991. Defendant further concedes this accident, a slip and fall in cooking oil, was due to a condition existing on its premises which presented an unreasonable risk of harm which was reasonably foreseeable. Defendant contends, however, plaintiff failed to meet her burden of proving it had actual or constructive notice of the condition prior to the accident. ⁴ Because notice and the exercise of reasonable care are the only disputed facts on the liability issue, we shall look only at facts pertinent to those issues.

Defendant called no witnesses on the liability issue. Plaintiff presented four witnesses to prove liability: herself; Cranston Ross, defendant's assistant manager on duty at the time of the accident; Vergie E. Pellegrin, defendant's seafood clerk at the time of the accident; and Ronald L. Quave, an assistant manager for defendant for 13 years before the accident. Ross still worked for defendant at the time of trial, but Pellegrin did not; she was a full-time student. Quave left defendant's employ in May 1991, about one month before plaintiff's accident. Their testimony is summarized below.

[92 2372 La.App. 1 Cir. 6] Amount of Oil

It is undisputed that oil was on the floor on aisle three, the area where cake mixes and cooking oil were displayed. No one saw the oil before the accident. Ross testified that when he saw the oil, four to five ounces were splattered in a one-foot area on the floor. Pellegrin testified there was a "lake" or "mass" of oil thinly spread over a two-and-one-half-foot by three-foot semicircle which extended under the edge of the shelf. Plaintiff did not testify as to a specific quantity but did indicate she saw more oil than described by Ross and less than described by Pellegrin.

Visibility of the Oil

Plaintiff testified the oil was not visible because it was "shiny like the floor." Ross stated that because of his 19 years' experience in the grocery business, he could see things on the floor that casual observers might not. He stated he could definitely see oil on the floor. Pellegrin stated the oil was not obvious to a casual observer, but if she was looking for a hazard on the floor, she would see it.

Source of the Oil

Plaintiff testified she did not know the source of the oil or how long it had been on the floor.

Ross testified the cooking oil shelves had been restocked in the wee morning hours of the accident date. After the accident he looked for the source of the oil but found nothing. He checked the shelves and found no leaking or empty bottles and no glass on the floor. The only thing found on the floor was a white plastic cap, which Ross believed fit a vinegar bottle.

Pellegrin testified that in an effort to find the source of the oil she and Ross removed all the cooking oil from each shelf in the area. She found no oil dripping from any shelf. She physically felt all of the shelves but found no trace of [92 2372 La.App. 1 Cir. 7] oil and no sign that anything had dripped through the shelves onto the floor. She found no empty bottles or bottles missing even a portion of their oil, and no broken glass. The only thing found was a white screw cap. She thought the cap was too big to fit a vinegar bottle. She could...