Carollo v. Shoney's Big Boy Enterprises, Inc.

• Decision Date: 17 May 1983
• Docket Number: No. 82-CA-186,82-CA-186
• Citation: Carollo v. Shoney's Big Boy Enterprises, Inc., 433 So.2d 803 (La. App. 1983)
• Parties: Michael Sylvester CAROLLO v. SHONEY'S BIG BOY ENTERPRISES, INC., and the United States Fire Insurance Company.
• Court: Court of Appeal of Louisiana

Page 803

433 So.2d 803

Michael Sylvester CAROLLO v.SHONEY'S BIG BOY ENTERPRISES, INC., and the United States Fire Insurance Company.

No. 82-CA-186.

Court of Appeal of Louisiana Fifth Circuit.

May 17, 1983.

Rehearing Denied July 15, 1983.

Michael F. Barry, New Orleans, for Michael Sylvester Carollo, plaintiff-appellant.

Owen A. Neff and Peter S. Title, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for Shoney's Big Boy Enterprises, Inc., and the U.S. Fire Ins. Co., defendants-appellees.

Before BOUTALL, GAUDIN and GRISBAUM, JJ.

BOUTALL, Judge.

This case arises from injuries in a slip and fall accident.From a judgment in favor of the defendants, the plaintiff has appealed.

The plaintiff, Michael S. Carollo, and his wife, Charmaine, had supper at a Shoney's Restaurant on August 8, 1978.As they were leaving the restaurant Mr. Carollo slipped on a piece of hamburger bun near the cash register and fell.He was treated for pain in the lower back and leg for a long period of time and eventually underwent surgery for removal of a herniated disc on September 30, 1981.Suit was filed against Shoney's Big Boy Enterprises, Inc. and its insurer, U.S. Fire Insurance Company, on July 30, 1979, alleging permanent disability and pain.

Trial was held before a jury on February 10 and 12, 1982.The jury found the restaurant was not negligent and the district judge signed a judgment dismissing the plaintiff's suit on April 23, 1982.This appeal followed.

The appellant complains that the jury verdict was contrary to the law and the evidence.The jury rendered its verdict by replying "No" to the first question of the jury interrogatories as follows:

"1) Do you find that the defendant, Shoney's, Inc., or any of its employees were negligent in this matter?

__yes __no

"If your answer is 'yes', go on to the next question.

"If your answer is 'no' stop here, sign and date this form and return to the courtroom."

In accordance with the instructions, the jury answered no further questions.The issues before this court are whether the record sustains a finding of no negligence on the part of the defendant and whether it supports an inference by the jury that the accident was staged.

The law as to slip and fall accidents is summarized in Smith v. Winn Dixie Stores of Louisiana, Inc., 389 So.2d 900(La.App. 4th Cir.1980)at 901, as follows:

"The jurisprudence reflects the view that upon proof that a foreign substance was on the floor at the time the plaintiff entered the store; that the plaintiff stepped on this foreign substance; and that it caused her to slip, fall, and suffer injury, the burden shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that it was negligent.The defendant, as store owner, can carry its burden by establishing that it was free from fault and that it exercised reasonable care in protecting its customers from foreign substances on the floor.Reasonable care is exercised when the store owner takes reasonable protective measures, including periodic inspections, in order to keep the floors and aisles free of substances or objects that may cause customers to fall.If the evidence presented is sufficient to establish that the store owner has carried its burden, then the presumption of negligence will be rebutted and the defendant will be exonerated from liability.Kavlich v. Kramer, 315 So.2d 282, (La.1975);Gonzales v. Winn-Dixie Louisiana, 326 So.2d 486(La.1976);Hanzo v. Travelers Ins. Co., 357 So.2d 1346(4th Cir .1978);Hyman v. National Super Markets, Inc., 353 So.2d 397(4th Cir.1977);Green v. Schwegmann Bros. Giant Supermarkets, Inc ., 325 So.2d 621(4th Cir.1976).One other rule which must be considered here is that the storeowner is not the insurer of the safety of its customers and further that it does not have to keep its entranceways, aisles and passageways in perfect condition.Lott v. Winn-Dixie of Louisiana, Inc., (4th Cir.1973);Rozelle v. Employer's Liability Assurance Corp., 260 So.2d 757(2d Cir.1972)."

We note that smaller establishments like the convenience store in Kavlich v. Kramer, supra, and the small restaurant in Hanzo v. Travelers Ins. Co., supra, are not required to have regular, time-spaced inspections as are large supermarkets.Employees in smaller stores are in a position to see spills and foreign matter more easily than those in a larger store.As the court said in Hanzo v. Travelers, supra, at 1349:

"... What is relevant to each case ... is that a reasonable effort is made to insure the patron's safety under the circumstances...."(Citations omitted.)

In the case before us, the appellant's position is that Shoney's failed to exculpate itself from a presumption of negligence.Counsel for the defendant did not call any witnesses from Shoney's to establish cleaning procedures and explained that he was unable to locate personnel employed in that restaurant at the time of the accident, owing to manager and employee turnover.Counsel relied instead on the testimony of the plaintiff's witness, Lenora Portera, a waitress who met the Carollos in the restaurant the night of the accident.She testified that all Shoney's employees were expected to pick up anything they saw on the floor.Mopping and sweeping the floors was a duty of the busboys.She saw no debris on the floor other than the bun and the general condition of the floor was clean.Durwood Thigpen, a defense witness, testified that the floor was "very clean."Mrs. Portera surmised that the bun had fallen from a busboy's cart.

The trier of fact, here the jury, must evaluate the credibility of witnesses and make factual determinations.Where its finding is not manifestly erroneous, that is, clearly wrong, the appellate court may not disturb it even though its own evaluation may be equally reasonable.Arceneaux v. Domingue, 365 So.2d 1330(La.1978);Canter v. Koehring Co., 283 So.2d 716(La.1973).

Whether the defendant satisfactorily exculpated itself from a presumption of negligence is a close question.It is inferred that the jury found Shoney's was not negligent primarily because it did not believe the plaintiff or his witnesses.

The plaintiff's credibility was put at issue by several gaps and conflicts in his testimony.Mr. Carollo stated that he had earned at least $7,000 as a painting contractor in 1978 before the accident but could submit no records whatever of any previous earnings, not even the names or addresses of persons whose houses he had painted.He explained that he only gave oral estimates to...