Ballas v. KENNY'S KEY WEST, INC.

• Decision Date: 11 December 2002
• Docket Number: No. 02-CA-684.,02-CA-684.
• Citation: 836 So.2d 289
• Parties: Keith BALLAS v. KENNY'S KEY WEST, INC.
• Court: Court of Appeal of Louisiana — District of US

836 So.2d 289

Keith BALLAS v. KENNY'S KEY WEST, INC.

No. 02-CA-684.

Court of Appeal of Louisiana, Fifth Circuit.

December 11, 2002.

Mitchell J. Hoffman, Kermit L. Roux, III, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, Attorneys for Defendant/Appellee.

Eric M. Daigle, New Orleans, LA, Attorney for Plaintiff/Appellant.

Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and MARION F. EDWARDS.

THOMAS F. DALEY, Judge.

The plaintiff, Keith Ballas, has appealed the trial court judgment in favor of the defendant, Kenny's Key West, Inc. For the reasons that follow, we affirm.

FACTS:

Plaintiff filed suit against the defendant alleging that he slipped and fell in a puddle of water that was leaking from a container used by defendant to cool beer. He alleged strict liability on the part of defendant. Defendant answered with a general denial and claimed plaintiff's injuries were caused by his own negligence. The plaintiff was an engineer and subcontractor for The Sound Source, a concert production company that was contracted to provide sound for music at defendant's place of business, a lounge in Jefferson Parish. Part of plaintiff's responsibilities in preparation for a concert were to bring in and set up all sound equipment and dismantle and remove the equipment after the concert. Plaintiff testified that on the night of August 20, 1997, as he was taking down a speaker cabinet with the help of a co-employee, his right leg slipped out from under him causing him to fall on his left knee. When asked what may have caused his accident, plaintiff testified that he noticed water on the floor. He explained that his pants were damp and there was water on his boots. Plaintiff testified that there was a large metal tub from which the defendant was selling cold beer about six to eight feet from the location of the speaker cabinet. He testified that he never saw anyone mop or inspect the area around the tub during the entire night. He further testified that there was no non-skid material around the tub, nor was he given any warning of a dangerous condition by the defendant's employees. Plaintiff testified that he reported the accident to Linda Milto, a manager of Kenney's Key West, on the night of the accident. He sought medical treatment and was diagnosed as having a partially torn ligament in his knee.

On cross-examination, plaintiff testified that he did not recall looking around before taking down the speaker. He further testified that he had no idea how long the water had been on the floor. He explained that had he looked down he would not have been able to see the water because it was too dark.

Linda Milto testified that she had worked at Kenney's Key West for eight and a half years. She explained that the policy at the lounge regarding spills was for all employees to report any spills. There are mops, as well as wet floor signs, to be used in the event of a spill. She testified that there are two employees stationed in the concert room and it is their job to constantly walk the floor. Ms. Milto was not aware of any spills on the night of August 20, 1997. She testified that the beer tubs did not leak that night. She testified that the beer tub sits on a wooden block that sits on top of carpet. Ms. Milto testified that the person working the beer tub would call management or the bar back if there was a problem with condensation around the floor of the beer tub. She denied that plaintiff reported his accident to her on the night that it occurred; rather she stated that she became aware of plaintiff's accident at a later date.

At the conclusion of the trial, the trial judge found no liability on the part of defendant. This timely appeal followed.

LAW AND DISCUSSION:

On appeal, the plaintiff argues that the trial court erred in applying R.S. 9:2800.6 to this case because the defendant's establishment does not fit the definition of "merchant" within the statute.

R.S. 9:2800.6 sets forth plaintiff's burden of proof in order to recover for injuries sustained in a slip and fall accident stating:

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 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 created an unreasonable risk of harm to the claimant and that the 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.

3. The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care ...

B. Definitions:

1. "Constructive

...