96-1868 La.App. 4 Cir. 4/30/97, Medice v. Delchamps, Inc.

• Decision Date: 30 April 1997
• Citation: 694 So.2d 528
• Parties: 96-1868 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 528

694 So.2d 528

96-1868 La.App. 4 Cir. 4/30/97

Veronica S. MEDICE v. DELCHAMPS, INC. and XYZ Insurance Company.

No. 96-CA-1868.

Court of Appeal of Louisiana Fourth Circuit.

April 30, 1997.

Jefferson R. Tillery, Elizabeth Slatten, Healy Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans, for Defendant/Appellee.

Catherine J. Smith, New Orleans, for Plaintiff/Appellant.

Before KLEES, ARMSTRONG and MURRAY, JJ.

[96-1868 La.App. 4 Cir. 1] ARMSTRONG, Judge.

This is a personal injury case involving a slip and fall of a shopper in a grocery store. The trial court, after a bench trial, held the defendant grocery store liable, awarded general damages of $3,000 plus stipulated special damages, and allocated 90% comparative fault to the plaintiff shopper and 10% fault to the grocery store. The plaintiff appeals as to the allocation of 90% fault and as to the quantum of general damages. The defendant does not appeal. We reverse the decision of the trial court in part, reallocate fault to 40% to the plaintiff and 60% to the defendant, and increase the general damages to $6,000.

Plaintiff, Ms. Veronica Medice, was shopping at a Delchamps grocery store on April 8, 1994. A Delchamps employee, Edward Sherman, was stripping some wax build-up from the floor of one of the aisles. This resulted in part of the floor of the aisle being wet. Mr. Sherman placed some cones in the aisle to warn of the wet floor. Ms. Medice entered the aisle and, while attempting to get some cookies from the shelf, slipped on the wet floor and fell. Mr. Sherman, who was still working in the aisle, did not see Ms. Medice fall but did see her getting up after the fall. The manager was called and an accident report was completed.

[96-1868 La.App. 4 Cir. 2] Ms. Medice felt back pain after her fall and so went to see a doctor, Dr. Jacqueline Cleggett-Lucas at Gulf Coast Medical Consultants, the same day as the accident, April 8, 1994. Dr. Lucas diagnosed Ms. Medice as suffering from contusion, lumbar strain and cervical strain. Ms. Medice underwent treatment with Dr. Lucas until July 1994 at which point she was recovered except for some minor back pain. Ms. Medice had a history of prior back injury, including an injury as to which she had not been discharged at the time of the April 8, 1994 accident at issue, and the trial court found that the April 8, 1994 accident aggravated a pre-existing injury. Ms. Medice had stipulated medical expenses of $903 and stipulated lost wages of $480.

The evident basis for the trial court's allocation of 90% comparative fault to Ms. Medice and 10% fault to Delchamps was the presence of the cones in the aisle. We agree that the cones gave enough of a warning of the wet floor to create some comparative fault on the part of Ms. Medice. But, as the trial court itself noted: "In a self-service food store, a merchant should expect customers to enter areas marked with cones when the customer wants an item in the area marked with cones". No attempt was made to actually bar shopper access to the wet area of the floor. Tapes or barricades could have been placed at the ends of the aisle, or in the aisle at the ends of the affected section of the aisle, in order to prevent shoppers from stepping onto the wet area of the aisle floor. A "Keep Off" sign also would have contributed to keeping shoppers off the wet area of the floor. As Mr. Sherman described the wax-stripping process, he ended it by dry-mopping the stripped area, so that the stripped area would be expected to dry fairly quickly. Thus, closing off an aisle, or a portion of an aisle, until the floor was dry would not have presented any lengthy inconvenience. Further, even that limited [96-1868 La.App. 4 Cir. 3] inconvenience could be avoided, without exposing shoppers to wet flooring, by stripping the wax build-up when the store is closed.

The factors to be considered when allocating fault include those set out in the Supreme Court's Watson decision:

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967, 974 (La.1985). As to the first factor, it is apparent that Ms. Medice's conduct involved inadvertence while Delchamps' conduct involved a decision to leave the wet floor area accessible to shoppers (but using cones to warn). As to the third factor, Delchamps' conduct of leaving the wet floor area open to shoppers did not seek any very significant objective. Blocking off the aisle, or a part of it, for a short time, was not such a great inconvenience to be avoided as to necessitate leaving a wet floor area accessible to shoppers. That is particularly so because even the minor inconvenience of blocking access for a short time could have been avoided by stripping the wax when the store was closed. As to the fourth factor, because Delchamps was in control of its own store, and had precise knowledge (through Mr. Sherman) of what floor areas were wet at what time, Delchamps had "superior capacity" relative to Ms. Medice with respect to the particular hazard involved here. As to the second factor, each party's conduct created about the same risk [96-1868 La.App. 4 Cir. 4] to the plaintiff. As to the fifth factor, no extenuating circumstances are apparent that would have required either party to have to proceed in haste, without proper thought. For example, the wax stripping was routine maintenance that could be dealt with by a standard operating procedure.

We also note that, in a self-service store, the shopper has a diminished duty to keep a lookout for hazards. "The duty to keep a lookout is diminished when shelved merchandise distracts a shopper". Perez v. Wal-Mart Stores, Inc., 608 So.2d 1006, 1008 (La.1992). A "normal shopper" will be busy "viewing the merchandise, not the floor". Id. This results from "the merchant's intentional attempts to draw the customer's attention toward merchandise on the shelves, thereby diminishing the attention that the customer pays to where he or she is walking". Stark v. National Tea Co., No. 94-CA-2633 (La.App. 4th Cir. 5/16/95), 655 So.2d 769, 773. We have observed that a "customer in a store is not held to the same standard of vigilance as would be necessary if traversing a jungle". Jones v. Hyatt Corp. of Delaware, No. 95-CA-2194 (La.App. 4th Cir. 7/26/95, 9/26/96), 681 So.2d 381, 392.

We recognize that the trial court's allocation of fault, because it is an issue of fact, Watson, 469 So.2d at 972, should be disturbed upon appeal only if it is clearly wrong or manifestly erroneous. E.g., Hines v. Remington Arms Co. Inc., No. 94-C-0455 (La.12/8/94), 648 So.2d 331, 335. But we recognize also that, although deference to the factfinder should be accorded, the courts of appeal still have a constitutional duty to review facts and determine whether the trial court's finding of fact is clearly wrong on the evidence. Ambrose v. New Orleans Police Dept. Ambulance Service, Nos. 93-C-3099, 3110, 3112 (La.7/5/94), 639 So.2d 216. If we find that the trial court made a "clearly wrong" allocation of [96-1868 La.App. 4 Cir. 5] fault, ...