Gonzales v. Winn-Dixie Louisiana, Inc.

• Decision Date: 13 February 1975
• Docket Number: No. 5484,WINN-DIXIE,5484
• Parties: Alfred GONZALES et ux., Mary Evans Gonzales v.LOUISIANA, INC. and Continental Insurance Companies, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 697

309 So.2d 697

Alfred GONZALES et ux., Mary Evans Gonzales v. WINN-DIXIE LOUISIANA, INC. and Continental Insurance Companies, Inc.

No. 5484.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 13, 1975.

Dissenting Opinion of Judge Morial March 4, 1975.

Rehearing Denied March 12, 1975.

Writ Granted April 24, 1975.

Darleen M. Jacobs, New Orleans, for plaintiffs-appellees.

Christovich & Kearney, Robert E. Peyton, New Orleans, for defendants-appellants.

Dillon & Williams, C. T. Williams, Jr., New Orleans, for amicus curiae Schwegmann Bros. Giant Super Markets, Inc.

Before SAMUEL, REDMANN, LEMMON, GULOTTA, STOULIG, BOUTALL, SCHOTT, MORIAL and BEER, JJ.

SCHOTT, Judge.

Defendants, Winn-Dixie Louisiana, Inc. and Fidelity and Casualty Company of New York, its liability insurer (Continental Insurance Companies, Inc., was erroneously named as the liability insurer in the original petition, answer was filed by Fidelity and Casualty and reference to Continental is omitted from the judgment of the trial court) have appealed from a judgment in favor of the plaintiffs for medical expenses and personal injuries resulting from an accident which occurred on November 2, 1968, in which Mrs. Gonzales, plaintiff, was injured while shopping in the defendant's store at 3325 Paris Road in St. Bernard Parish.

The accident happened when Mrs. Gonzales, while pushing a grocery cart in the store, slipped and fell on a spill of olive oil measuring about two feet in diameter and near a broken bottle. She had been moving through the middle of the aisle looking at the displays of wares with her grocery cart about three feet from the shelf where the olive oil was displayed when she slipped down. She did not cause the bottle to fall from the shelf and did not have any olive oil in her cart. After her accident she reported it to a store employee, Mrs. Bonnie Bedford.

The only evidence of cleanup procedures is the testimony of the store manager, Mr. Federico, who testified that he had come on duty that day at approximately 1:00 PM, shortly after Mrs. Bedford got the report of the accident; that cleanup procedures at the store included a complete sweeping and mopping from one end of the store to the other each evening before closing; that on each morning whichever manager opens the store conducts an inspection to be sure that there are no hazards on the floor; that this inspection, normally made between 8:00 and 8:30 AM, is followed by a second such inspection normally made after a shift change in managers between 12:00 and 1:00 PM, and a third such inspection at approximately 5:00 PM; that at the time of plaintiff's accident at about noon the manager had not yet made his inspection so that the only regular inspection prior to the accident was to have been between 8:00 and 8:30 AM; that he is constantly on the floor looking for hazards; that all of the employees are instructed to keep their eyes open for broken items with further instructions to clean up anything that may be on the floor; and that there is one fulltime man designated to clean up during the day. None of the other store employees, including the morning manager, who were involved in cleanup procedures on the day of the accident were called as witnesses. There is no other evidence which would show the reasonableness or unreasonableness of the inspection and cleanup procedures.

Plaintiffs contend, that to establish liability, it is only necessary that they prove that Mrs. Gonzales slipped and fell through no fault of her own on a foreign substance on defendant's floor and defendants must then exculpate themselves. Defendants contend that plaintiff has the burden of proving either actual knowledge that the spill of olive oil was on the floor that it was there for such a period of time so as to charge defendant with constructive knowledge of the existence of the hazard. They contend that in the absence of such proof the adequacy and reasonableness of their cleanup procedures were not at issue.

In Fontanille v. Winn-Dixie Louisiana, Inc., 260 So.2d 71 (La.App.4th Cir. 1972) this Court had occasion to consider the legal principles applicable to the instant case and nothing will be gained by repeating here those principles and the many authorities cited therein.

The Court decided that case in favor of the plaintiff upon a finding that the customer had slipped on a half eaten piece of banana which was inferred to have been on the floor between 30 and 40 minutes based upon the Court's findings that the piece of banana was brown and that such a length of time is required for a banana to turn brown once exposed to the air. Having found for a fact that this hazard had been present for 30 minutes or longer the Court concluded that defendant had constructive knowledge of the hazard and had not exercised reasonable care to maintain aisles and passageways in a reasonably safe condition considering the type and purpose of the premises. A similar result was reached in Lang v. Winn-Dixie Louisiana, Inc., 230 So.2d 383 (La.App.1st Cir. 1969) in which the case was decided for the plaintiff on the basis of the fact that since plaintiff slipped on several pieces of thawed out but originally frozen okra and since 30 to 60 minutes is required for frozen okra to thaw the evidence was sufficient to establish a lack of adequate inspection and cleanup procedures on the part of the store owner.

Unfortunately for the plaintiff in the instant case, there is nothing on which we can base a determination that this spill of oil was on the floor for any length of time so as to provide a basis for the theory that the inadequacy of defendant's inspection and cleanup procedure was the cause of plaintiff's accident. Counsel for plaintiff in brief and in oral argument points to testimony that the olive oil on defendant's floor was green in color and argues from this testimony that it had been there for some time, but this is at best speculation and is not supported by any evidence. The same result must be reached in this case as in Frederic v. Winn-Dixie Louisiana, Inc., 227 So.2d 387 (La.App.4th Cir. 1969) in which this Court, reversing judgment in favor of a plaintiff who slipped and fell on a grape, said:

'. . . It may have been dropped a few minutes before Mrs. Frederic fell and again it may have remained there for over an hour. It is possible that it was on the floor a sufficient length of time to constitute constructive notice of its presence so that the failure of the storekeeper to remove it was negligence for which the plaintiff might recover, but there is no proof of this and its presence on the floor does not cast the burden on the defendants to show how and when it got there. That burden is on the plaintiffs.'

We recognize that proof of an inadequate, faulty or improperly functioning inspection system or procedure is always admissible in adjudging the issue of a store owner's negligence. However, it is but one of the aspects or factors that must be considered in the court's determination of liability and standing alone cannot support a finding of negligence in the absence of attendant circumstances that would render its omission as the proximate cause of the accident. The facts of defendant's inspection in this case do not alone support a finding that the defendant store owner was negligent .

Our jurisprudence in this circuit is consistent with that of the Second Circuit as shown in White v. J. Weingarten, Inc., 270 So.2d 632 (La.App.1972) and of the Third Circuit as exemplified in Lofton v. Travelers Insurance Company, 208 So.2d 739 (La.App.1968); Broussard v. National Food Stores of La., Inc., 233 So.2d 599 (La.App.1970); and Brown v. Kroger Company, 252 So.2d 336 (La.App.1971).

However, the First Circuit has taken a different view. In McCauley v. Nicholas, 297 So.2d 914 (La.App.1st Cir. 1974), it was held:

'First, we noted that to avoid liability for injuries to a customer because of negligence in failing to discover an object or substance upon the floor which causes injury the storekeeper must make a preliminary or prima facie showing of a reasonably careful and thorough inspection where there was a potential danger to patrons. While the burden is on the plaintiff to show that such substance remained on the floor for a longer time than that in which it should have been discovered and removed, this burden on the plaintiff is subject to the requirement that the defendant first show in a preliminary way that the foreign substance was not discovered in spite of reasonably careful and frequent inspections.'

In Welch v. Great Atlantic & Pacific Tea Co., Inc., 273 So.2d 876 (La.App.1st Cir. (1973)) it was said that the initial burden is on the storekeeper to show reasonably careful and frequent inspection practices and:

'. . . If he is unable to show such inspection practices, the plaintiff is relieved of the burden of proving actual or constructive knowledge of the hazardous condition. This rule has the effect of shifting the burden of proof in such cases from the plaintiff to the defendant.'

The sharp contrast among the Circuits can best be demonstrated by comparing the quoted language from the First Circuit cases with the cited cases from the Third Circuit. In his dissent in the Lofton case Judge Culpepper criticized the majority view of his colleagues and argued that under the circumstances existing in large self-service super markets where a customer slips and falls on an extraneous substance the doctrine of Res ipsa loquitur should be applied and an inference of negligence on the part of the defendant created by such circumstances. In the Broussard case now Justice Tate, then the organ of the Third Circuit, applied the law, but in a separate concurring opinion criticized the principles and lauded Judge Culpepper's dissent in Lofton. By that time, the Supreme Court had denied a writ application in Lofton at 252 La. 457, 211 So .2d 327, and Judge Culpepper now concurred with the...