Albritton v. J. C. Penney Co., Inc.
| Decision Date | 21 May 1980 |
| Docket Number | No. 7610,7610 |
| Citation | 385 So.2d 549 |
| Parties | Ruth D. ALBRITTON, Plaintiff-Appellant, v. J. C. PENNEY COMPANY, INC., Liberty Mutual Insurance Company, and LouisianaInvestors of Delaware, Inc., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Boatner & Luke, R. H. Luke, Bunkie, for plaintiff-appellant.
Bolen & Erwin, James A. Bolen, Jr., Alexandria, for defendant-appellees, Penney Co. and Lib. Mutual.
Gold, Little, Simon, Weems & Bruser, Herbert J. Mang, Alexandria, for defendant-appellee, La. Investment Co.
Before FORET, SWIFT and STOKER, JJ.
This is a tort suit. Plaintiff, Ruth D. Albritton, brought suit against the J. C. Penney Company (hereinafter Penney), its liability insurer, Liberty Mutual Insurance Company (hereinafter Liberty), and Louisiana Investors of Delaware, Inc. (hereinafter the Mall), the owner and lessor of the premises wherein Penney conducts its retail business, to recover damages allegedly suffered as a result of a slip and fall accident plaintiff had while at the mall. In their answer, Penney and Liberty asserted a third party demand against the Mall pursuant to LSA-C.C.P. Article 1111. The case was tried to a Rapides Parish jury which exonerated all defendants of liability. While the jury found that the plaintiff did slip on a foreign object, and she did receive her injuries as a result of the accident, the jury went on to find that Penney, Liberty and Louisiana Investors were not negligent.
Plaintiff now prosecutes this appeal assigning as specification of error number I, that the jury was clearly wrong and its verdict was not supported by a preponderance of the evidence, and in specification of error number II, that the trial court committed error with reference to a "charge conference" to rule on proposed jury charges, and in submitting to the jury confusing and inconsistent verdict interrogatories, failing to provide counsel an opportunity to review or discuss the special verdict interrogatories propounded by the court, and failing to charge the jury under Article 2317 of the Louisiana Civil Code. As seen herein below, we agree with plaintiff that the jury verdict denying plaintiff recovery against Penney and Liberty was clearly wrong; so, in reversing the trial court judgment for that reason, we need not consider specification of error number II.
On September 10, 1977, plaintiff went to the J. C. Penney automotive service center in the Alexandria Mall, Alexandria, Louisiana, to exchange a tire. Upon inspection of the tires on her vehicle, plaintiff was informed by Penney employees that three were defective, that they were still under warranty, and that she was entitled to have them replaced. Plaintiff was then advised that it would be approximately three hours before her vehicle would be ready. At approximately 3:30 P.M., the necessary repairs had been done. Prior to leaving the Penney premises, plaintiff could not find her new tire warranty, and was informed by Penney employees that same should be in her car's trunk. With the assistance of one of Penney's service personnel, plaintiff again searched for but could not locate the warranty. Plaintiff then, accompanied by the serviceman, was returning to the shop supervisor's desk in an attempt to locate the warranty. Upon walking up an inclined concrete apron or entranceway surrounding the shop area, plaintiff allegedly slipped on a foreign object, 1 causing her to fall and sustain an "egg shell" fracture on the nose, a fracture of the radius of the right arm, and other minor abrasions and bruises.
Appellate jurisdiction of the courts of appeal of this State extends to both law and fact. La.Const., 1974, Art. 5, § 10(B). The standard for appellate review in Louisiana, which has been enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and was thereafter clarified in Arceneaux v. Domingue, 365 So.2d 1330 (La.1979) and its progeny, that: "the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous) . . ." is now axiomatic and no further discussion or citation is necessary. After a thorough review of the record before us, we are of the opinion that the jury's application of the relevant law to the facts is manifestly erroneous. Under the provisions of LSA-C.C.P. Article 2164, we are empowered to render any judgment which is just, legal and proper upon the record on appeal and reverse the trial court, where appropriate, and render judgment accordingly in lieu of a remand.
The jury found that plaintiff did in fact slip and fall on a foreign object while on the premises of the defendant, J. C. Penney automobile repair facility and that she received injuries as a result of said fall.
In Louisiana, storekeepers owe an affirmative duty to their customers to use ordinary or reasonable care to keep aisles, passageways, and floors in a reasonably safe condition and this duty includes a reasonable effort to keep objects off the floor which might give rise to a slip and fall. These reasonable protective measures which must be taken to insure that the aisles and floors are free of substance or objects which may cause customers to fall, include periodic inspections. Broussard v. National Food Stores of Louisiana, Inc., 233 So.2d 599 (La.App. 3 Cir. 1970), affirmed 258 La. 493, 246 So.2d 838 (1971); Kavlich v. Kramer, 315 So.2d 282 (La.1975); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976).
Once the plaintiff has established a prima facie case, i. e., that a hazardous condition existed and that it caused his injury, an inference of negligence arises and the burden of proof 2 falls upon the defendant, who must then go forward with evidence to exculpate himself from the presumption that he was negligent. Kavlich v. Kramer, supra; Gonzales v. Winn-Dixie, supra. Thus it became incumbent on the defendants to exculpate themselves once the plaintiff proved that she slipped on a foreign object and was injured.
Owners and occupiers of land have an affirmative duty to exercise reasonable care in maintaining their premises in a safe condition and of warning any individuals, who they know or should have known may venture onto those premises, of any concealed or hidden defects. LSA-C.C. Articles 2315, 2316; McCauley v. Nicholas, 297 So.2d 914 (La.App. 1 Cir. 1974), writ denied 302 So.2d 24 (La.1974). LSA-C.C. Article 2695, which provides for strict liability of a landlord for damages resulting from hazardous conditions on the leased premises, is restricted to the landlord-tenant relationship and does not apply to third parties, whose rights are protected by LSA-C.C. Articles 2315, 2316, 2322, and former Article 670 (see now Article 660). Reed v. Ramsay, 355 So.2d 618 (La.App. 4 Cir. 1978). In order for a plaintiff to recover from a landowner-lessor, he must prove that the damages he suffered were as a result of a defect or vice in the thing owned or leased. Lanclos v. Tomlinson, 351 So.2d 1218 (La.App. 3 Cir. 1977), writ denied, 352 So.2d 1023 (La.1977).
Additionally, not every defect can serve as a basis for a claim. The defect must be of such a nature as to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. McCauley, supra; Templin v. Traders & General Insurance Co., 288 So.2d 660 (La.App. 3 Cir. 1974).
Mrs. Albritton did not slip and injure herself because of any fault or defect in the design or construction of the leased premises. There is no evidence in the record to indicate that defects existed. At no time during the course of events which precipitated the injury sued upon was the Mall in control, actual or constructive, of the concrete area where the plaintiff fell. As is evident from a cursory glance at Exhibit "B", the area where plaintiff fell was leased to defendant, J. C. Penney. The Mall was responsible for the cleaning of "common areas" such as sidewalks, parking lots, public toilets, etc. Obviously, by the very use of the word "common" as an adjective to describe the word "areas" is meant such areas as are used conjointly by the Mall tenants. Penney argues that the Mall was responsible for the area where plaintiff fell. We disagree. Nowhere in the lease can we find any provision which would seem to support his assertion. As noted previously, the apron where plaintiff fell is clearly delineated on the Mall's Exhibit "B" as being leased to J. C. Penney.
Defendant, Louisiana Investors of Delaware, Inc., owner and lessor of the premises where plaintiff fell and was injured, has successfully carried its burden. It is for these reasons that we will affirm that part of the verdict finding the Mall not negligent and additionally will dismiss the third party demand by J....
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