94-2059 La.App. 4 Cir. 8/13/97, Lopez v. Wal-Mart Stores, Inc.

• Court: Court of Appeal of Louisiana (US)
• Writing for the Court: BARRY; PLOTKIN
• Citation: 700 So.2d 215
• Parties: 94-2059 La.App. 4 Cir
• Decision Date: 13 August 1997

Page 215

700 So.2d 215 94-2059 La.App. 4 Cir. 8/13/97 Linda LOPEZ
v.
WAL-MART STORES, INC. and Pam Barr. No. 94-CA-2059. Court of Appeal of Louisiana,
Fourth Circuit. Aug. 13, 1997.
Rehearing Denied Sept. 15, 1997.

Page 216

Robert G. Harvey, Sr., Thomas Corrington, Tamara Kluger Jacobson, Harvey, Larzelere, Jacobson & Corrington, APLC, New Orleans, for Plaintiff/Appellant Linda Lopez.

Thomas P. Anzelmo, Geoffrey J. Orr, Campbell, McCranie, Sistrunk, Anzelmo & Hardy, Metairie, for Defendant/Appellee Wal-Mart Stores, Inc.

Before BARRY, PLOTKIN and MURRAY, JJ.

[94-2059 La.App. 4 Cir. 1] MURRAY, Judge.

Linda Lopez appeals a judgment of the trial court affirming a jury verdict wherein the jury found no liability on the part of defendant, Wal-Mart Stores, Inc. We affirm.

FACTS AND PROCEDURAL HISTORY:

The following facts are undisputed: Ms. Lopez was Christmas shopping on December 21, 1989, with her 12-year-old son, Danny, in the Chalmette Wal-Mart store. Ms. Lopez entered the store, acquired a shopping basket, and proceeded to the toy department to purchase a gift for an infant relative. Danny turned left into an aisle in the toy department, and Ms. Lopez turned left into the

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next aisle. Ms. Lopez faced the front of the store, and was speaking to her son through the shelves while selecting a toy. Suddenly, several boxes fell from the shelf behind her, striking her on the head and left shoulder.

At this point, the facts become highly disputed. Ms. Lopez claims that Wal-Mart employees stocking the shelves on the aisle behind her shoved merchandise [94-2059 La.App. 4 Cir. 2] onto her. She arrives at this conclusion based on the fact that Wal-Mart employees arrived on the scene with a ladder almost immediately. Wal-Mart claims that the accident occurred because a teen-aged boy climbing the shelves in the adjacent aisle caused the merchandise to fall. This version of the facts was testified to by the first Wal-Mart employee on the scene, Emily Westcott. She claims that she was in the pet department, directly behind the toy department, helping a customer when she heard boxes fall. She saw a boy jumping from the lower shelves as she passed on her way to investigate the noise. She did not have a ladder with her.

This matter was tried to a jury which rendered a verdict in favor of Wal-Mart, finding no negligence on its part. Ms. Lopez filed a Motion for Judgment Notwithstanding the Verdict, or alternatively, Motion for New Trial, which was denied by the trial court. This appeal followed.

DISCUSSION:

Ms. Lopez presents four issues on appeal. The first issue is whether the jury was clearly wrong in finding that Wal-Mart was not negligent. We cannot discern from the jury interrogatories whether the jury found that there was no premise hazard, or if it found that a premise hazard existed, but that Wal-Mart sufficiently exculpated itself from liability. Therefore, we must examine the record to see if a reasonable basis exists to support either or both factual findings.

An appellate court will not set aside a jury's findings in the absence of manifest error, or unless it is clearly wrong. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 7 (La.02/20/95), 650 So.2d 757, 762. In Mart v. Hill, 505 So.2d 1120 (La.1987), the Supreme Court set forth a two-part test for reversing a factfinder's determination on appellate review:

[94-2059 La.App. 4 Cir. 3] 1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and

2) The appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

(citing Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978)). Nonetheless, despite the vast discretion afforded the factfinder, appellate courts have a constitutional duty to review facts. The reviewing court may not merely decide if it would have decided the case differently, but must affirm the trial court where the latter's judgment is not clearly wrong. Ambrose v. New Orleans Police Dep't Ambulance Serv., 93-3099, 93-3110, 93-3112, p. 8 (La.07/05/94), 639 So.2d 216, 221. Further, "where two permissible views of the evidence exists the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Stobart v. State, 617 So.2d 880, 882-83 (La.1993).

Louisiana Revised Statute 9:2800.6 as enacted in 1988 is applicable to the facts of this case. This statute became effective on July 18, 1988, applying to all cases tried on or after that date. 1988 La. Acts No. 714. ¹ Subpart A of the statute states:

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.

[94-2059 La.App. 4 Cir. 4] A plaintiff who is injured by falling merchandise must prove that a hazardous condition or defect existed presenting an unreasonable risk of harm which caused the injury.

A premise hazard is a condition which causes an unreasonable risk of harm to

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customers under the circumstances. Johnson v. Ins. Co. of N. America, 360 So.2d 818 (La.1978); Matthews v. Schwegmann Giant Supermarkets, Inc., 555 So.2d 671, 673 (La.App. 4th Cir.1989), rev'd on evidentiary grounds, 559 So.2d 488 (La.1990). A plaintiff may prove the existence of a premise hazard by circumstantial evidence. Matthews v. Schwegmann Giant Supermarkets, Inc., 559 So.2d 488 (La.1990). Once a plaintiff makes a showing that a hazard existed, the burden shifts to the merchant to demonstrate that it used reasonable care to avoid such hazards. Kimble v. Wal-Mart Stores, Inc., 539 So.2d 1212, 1214 (La.1989); Matthews v. Schwegmann Giant Supermarkets, Inc., 555 So.2d 671, 673 (La.App. 4th Cir.1989), rev'd on evidentiary grounds, 559 So.2d 488 (La.1990).

Ms. Lopez testified on cross-examination that she did not notice the condition of the merchandise on the aisle in which she was shopping, but then stated that it was stacked very high. She did not actually see the merchandise fall. She speculated that the merchandise was pushed off of the shelf from the next aisle by Wal-Mart employees who were stocking the shelves. This speculation was based on the fact that Wal-Mart employees arrived on the scene within seconds of the incident. To support her allegations of the existence of a premise hazard, Ms. Lopez introduced pictures of the aisles in question taken by her husband sometime after the accident and the testimony of two experts.

William Hite was accepted by the court as an expert in executive retail management, merchandising policies and procedures of department stores, over the [94-2059 La.App. 4 Cir. 5] objection of counsel for Wal-Mart. He testified that in his opinion the accident occurred because Wal-Mart employees stocking merchandise on the aisle behind Ms. Lopez pushed the boxes into her aisle. He opined that the boxes of merchandise were stacked too high, causing them to be top-heavy, and thus easily knocked over. Mr. Hite testified that when boxes are stacked flat, they normally will not fall on their own, "because, obviously, it's stacked in the safest manner that they can stack it on the shelf." In his opinion, Wal-Mart should have placed dividers between the merchandise on the two aisles to prevent merchandise from being pushed through from the opposite aisle. On cross-examination, Mr. Hite admitted that his opinion was based on Ms. Lopez's version of how the accident happened, that is, that because Wal-Mart employees arrived on the scene so quickly with a ladder, they must have been stocking the shelves on the adjacent aisle.

Mr. Wilfred Gallardo was accepted by the court as a safety expert. It was his opinion that the accident was a result of Wal-Mart stacking boxes too high on the shelves, and not securing them. Because the boxes were not secured, they could be shaken loose easily, for example, by a customer striking the rack with a shopping cart. He agreed with Mr. Hite that dividers were needed between the shelves to prevent merchandise from being pushed through from the other side.

Mr. Gallardo testified that he has been to this particular Wal-Mart store on several occasions, and has seen shelves being stocked. However, he has never seen shelves stocked with merchandise as high as that depicted in the photographs he used for his evaluation. On cross-examination, Mr. Gallardo admitted that he did not know how the shelves were stocked on the date of the accident. He [94-2059 La.App. 4 Cir. 6] believed that the fact that the accident happened was proof in and of itself that the shelves were stocked improperly.

Ms. Lopez also called James Rogodzinski, the store manager at the time of this incident. Mr. Rogodzinski testified that a safe height at which to stock merchandise is ten feet, but that during the Christmas season, they will stock as high as thirteen feet. He also stated that by law, the store is allowed to stock within eighteen inches of the ceiling. It was his opinion that whether it was safe to stock merchandise that high would depend on the nature of the merchandise. He was shown the photographs taken by Ms. Lopez's husband, and admitted that he had no reason to believe that the merchandise was stocked any differently on the day of the accident.

Based on our thorough review of the record, we...