96 1962 La.App. 1 Cir. 12/29/97, McCrea v. Petroleum, Inc.

• Decision Date: 29 December 1997
• Citation: 705 So.2d 787
• Parties: 96 1962 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 787

705 So.2d 787

96 1962 La.App. 1 Cir. 12/29/97

Sherri McCREA v. PETROLEUM, INC., d/b/a Race Trac.

No. 96 CA 1962.

Court of Appeal of Louisiana First Circuit.

Dec. 29, 1997.

Robert McComiskey, Metairie, for plaintiff/appellant Sherri McCrea.

Alton Lewis, Hammond, for defendant/appellee Petroleum, Inc. d/b/a Race Trac.

Before FOIL, WHIPPLE and KUHN, JJ.

[96 1962 La.App. 1 Cir. 2] WHIPPLE, Judge.

This case involves a slip and fall accident in which plaintiff claimed she was injured by falling in spilled oil on defendant's premises. Plaintiff, Sherri McCrea, appeals the judgment of the trial court, rendered in accordance with the jury's verdict that plaintiff's injuries did not result from any negligence of defendant, Petroleum, Inc., d/b/a Race Trac. We affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On Easter Sunday, April 11, 1993, McCrea had visited her parents in Mississippi and had stopped at her sister's house. On her way home to Pumpkin Center, Louisiana, she stopped at around 4:30 P.M. at the Race Trac convenience store and gas station in Hammond to buy gas. After she pulled up to the pumps and pumped gas into her car, she turned to put the gas cap back on her car. She contends she slipped and fell in a dinner-plate-sized puddle of oil, and landed on her hands and knees, with one leg extended. She went in to pay for her gas purchase and contends she told two employees that there was an oil spill by the pumps, which they needed to clean up because it had caused her to fall. As she was driving home, she felt excruciating pain in her right leg.

She went back to Race Trac with her sister on the Tuesday after the accident and asked to speak to a manager to report the accident. She and the manager went outside to the pump area and she showed him where she had fallen. Shortly thereafter, she went to see her internist, Dr. Gaber. An orthopedist and a neurosurgeon subsequently treated McCrea for a bulging lumbar disc, which all of the doctors related to the April 11, 1993 slip and fall accident described by plaintiff.

Plaintiff filed suit against defendant and after a jury trial held on December 5--8, 1995, the jury returned a verdict in favor of defendant, finding that defendant [96 1962 La.App. 1 Cir. 3] was not negligent in maintaining its premises. This appeal followed.

ANALYSIS

Plaintiff complains on appeal that the trial court erred in failing to charge the jury with plaintiff's proposed instructions. Instead, the trial court charged the jury by reading the applicable statute, LSA-R.S. 9:2800.6, as amended in 1990 by Acts 1990, No. 1025, Sec. 1, effective September 1, 1990. The statute reads as follows:

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 knowledge 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.

(2) "Merchant" means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business.

D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

Plaintiff also argues that the trial court erred in failing to grant a JNOV at plaintiff's request.

At trial, plaintiff specifically objected to the trial court's failure to charge the [96 1962 La.App. 1 Cir. 4] jury that a merchant has a duty to have in place mandatory periodic inspection procedures, as articulated in Welch v. Winn-Dixie, 94 2331 (La.5/22/95); 655 So.2d 309, overruled, White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081. Plaintiff also objected to the court's refusal to give plaintiff's requested jury charges based on a distinction the court drew between supermarket slip and falls and self-service gas station slip and falls. In response to plaintiff's objection, the trial court stated:

"[B]asically I refused all specially requested instructions, pertaining to slip and fall law at least.... It's the opinion of the court that in this particular case, unlike other tort cases, the law is [LSA-R.S.] 9:2800.6, that the legislature has promulgated that as being the law and that is the law that applies to slip and fall cases. No more. No less. To me it's kind of a unique situation in tort law.... It's kind of like a criminal case. If you violate the statute you're guilty, and if you violate the slip and fall law you're guilty.... The law is the statute. No more. No less. That's just the position I'm going to take on this case."

At trial, plaintiff argued that Welch v. Winn-Dixie had effectively amended LSA-R.S. 9:2800.6, to impose a lesser burden of proof than was provided in what the Welch court called a "decidedly pro-defendant" statute. Citing Judge Parro's concurring opinion in Welch v. Winn-Dixie, 92 2372 (La.App. 1st Cir. 8/22/94); 645 So.2d 647, writ granted, 94-2331 (La.11/29/94); 646 So.2d 390; reversed, 94 2331 (La.5/22/95), 655 So.2d 309, plaintiff argued that the burden of proof set forth in the statute regarding constructive notice is impossible to overcome because there is no way to prove how long a substance was on the floor.

In Welch, the Supreme Court held that it was "unnecessary to show precisely how long the [slippery substance, i.e., the cooking oil] was on the floor due to its nature as extremely slippery and hazardous and the lack of established consistent inspection procedures designed to discover such a dangerous condition." Thus, the plaintiff in Welch met the statute's burden of proof for constructive [96 1962 La.App. 1 Cir. 5] notice by proving that Winn-Dixie had failed to have in place a "uniform, mandatory, non-discretionary clean-up and safety procedure." Welch, 94 2331 at p. 17; 655 So.2d at 318. At trial and on appeal, plaintiff argues that the trial court's failure to charge the jury with her proposed instructions resulted in a tainted jury verdict. ¹

We disagree and find no merit in these arguments. At the outset, we note that in White v. Wal-Mart Stores, Inc., 97-0393, p. 5 (La.9/9/97), 699 So.2d at 1085, the Supreme Court held that LSA-R.S. 9:2800.6, as it read in 1991, clearly and unambiguously requires that a plaintiff prove each of the enumerated requirements of section (B). Sub-section (B)(2) requires that plaintiff establish that the merchant created or had actual or constructive notice of the condition prior to the occurrence. Constructive notice, as defined by sub-section (C)(1), includes a temporal element, and the statute does not allow for the inference of constructive notice absent some showing of this temporal element. Thus, the Supreme Court concluded, under the clear [96 1962 La.App. 1 Cir. 6] wording of the statute, the plaintiff is required to prove that the condition existed for some time period prior to the fall, and the statute simply does not provide for a shifting of the burden to the defendant merchant to make a positive showing of the absence of the existence of the condition prior to the fall. White, 97-0393 at p. 5, 699 So.2d at 1085. Additionally, the Supreme Court opined that the plaintiff's burden regarding constructive notice is not an "impossible burden," contrary to the argument similarly urged by the plaintiff herein. White, 97-0393 at pp. 5-6, 699 So.2d at 1085-1086.

In Welch, the Supreme Court had concluded that the plaintiff had carried her burden of proving constructive notice by showing the absence of written inspection procedures or written documentation of inspections performed and the lack of a consistent inspection policy. White, 97-0393 at p. 4, 699 So.2d at 1084. Thus, the Court's decision in White overruled the Court's prior holding in Welch, which had (a) allowed for a finding of constructive notice absent any showing by plaintiff that the condition had existed for some period of time prior to the occurrence, and (b) had provided for a shifting of the burden to the defendant merchant to prove it exercised reasonable care. White, 97-0393 at pp. 6-7, 699 So.2d at 1085-1086. Considering this jurisprudence, we find no merit in plaintiff's argument that the trial court erred in failing to charge the jury that a merchant has a duty to have in place mandatory periodic inspection procedures, as had been articulated in Welch.

Additionally, we note that the trial court is required to instruct the jurors on the law applicable to the cause submitted to them, pursuant to LSA-C.C.P. art. 1792(B). In a jury trial, the judge has a duty to charge the jury as to the law applicable in a case and the correlative right and responsibility to require that the jury get only the correct law. It is the judge's responsibility to reduce the possibility of confusing the jury, and he or she may exercise the right to decide what law is applicable to prevent counsel from arguing law which the trial judge [96 1962 La.App. 1 Cir. 7] deems inappropriate. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, p. 35 (La.App. 1st Cir. 3/11/94); 634 So.2d 466, 488, writ denied, 94-0906 (La.6/17/94); 638...