Guerrero v. Brookshire Grocery Co.

• Decision Date: 29 April 2015
• Docket Number: 49,707–CA.
• Citation: 165 So.3d 1092
• Parties: Donna GUERRERO, Plaintiff–Appellant v. BROOKSHIRE GROCERY COMPANY, and Specialty Risk Services, Defendants–Appellees.
• Court: Court of Appeal of Louisiana — District of US

165 So.3d 1092

Donna GUERRERO, Plaintiff–Appellant

v.BROOKSHIRE GROCERY COMPANY, and Specialty Risk Services, Defendants–Appellees.

49,707–CA.

Court of Appeal of Louisiana, Second Circuit.

April 29, 2015.

Mixon & Carroll, Columbia, By James L. Carroll, for Appellant.

Nelson, Zentner, Sartor & Snellings, LLC, Monroe, By David H. Nelson, for Appellee, Brookshire Grocery Co.

Before WILLIAMS, STEWART and CARAWAY, JJ.

Opinion

CARAWAY, J.

In this case, the plaintiff was shopping at a grocery store when she tripped and fell on a small box in the aisle. The store management had begun its restocking procedures two hours before it closed for the evening, and the box had been left on the floor for the restocking of a product. Following a bench trial, the trial court found no fault on the part of the defendant. Our review of the record shows that the box in question presented an unreasonable risk of harm, and we therefore reverse the ruling of the trial court.

Facts

In the evening of January 3, 2010, Donna Guerrero (the “Plaintiff”) tripped and fell over a box left in the aisle of Super 1 Foods in West Monroe. A Super 1 Foods manager for defendant, Brookshire Grocery Company (“Brookshire”), placed a box on the floor of the aisle in anticipation of restocking the shelves. Plaintiff and her husband arrived at the grocery store at approximately 8:00 p.m. and walked down the center aisle of the store looking for coffee. They did not find the coffee on that aisle, and turned onto the next aisle. Photographs taken by the defendant well after the accident show the aisle where the coffee was sold. It is undisputed that the boxes were out in the aisle before the store closed at 10:00 p.m., since such restocking activity is a regular practice of Super 1 Foods. Plaintiff testified that she was unaware of the box, and after looking for the coffee on the shelf, she tripped and fell over the box.

Plaintiff reported her injury to a cashier in the store, who in turn reported the accident to Jessie Harrison, the store's on-duty manager. Harrison completed an incident report and allegedly used Plaintiff's husband's phone to take a picture of the accident scene. Either later that night or the next day, Mr. Guerrero looked for the picture on his phone, but it was not there. Plaintiff insists that Harrison deleted the picture after taking it. Brookshire denies that this picture was ever taken. The accident report states that no pictures were taken. Plaintiff claims that Harrison took the picture and then went into his office to transfer it onto his computer. Plaintiff testified that the box she tripped over was the only box in the aisle, but this fact is disputed by Harrison. Harrison claimed that there were other boxes set out in anticipation of restocking. Photographs introduced by Brookshire at trial show a recreation of the accident scene with multiple boxes on the ground, “depicting the approximate location of boxes as they were spotted on the evening of the accident.”

At trial, Harrison testified on direct examination that the photographs accurately depicted the aisle at the time of the accident. The photographs show at least six boxes in the aisle, with some stacked at different places along the aisle to over two feet high. However, on cross-examination, Harrison testified that he did not have specific recollection as to how many boxes were on the aisle on the night of the accident, and, in fact, admitted that his previous testimony from his deposition was more accurate. In his deposition, Harrison testified that he specifically remembered only the box Plaintiff tripped over being in the aisle, and possibly one other box. The disputed photographs do not reflect this and clearly show several boxes in the aisle. Harrison also admitted that there were no warnings issued in the store, or signs posted informing customers that stocking was underway. He admitted that the only way for customers to know that shelving was occurring was by observing the boxes on the floor.

Plaintiff's husband testified that the box was the height of a coffee can. He remembered this because coffee cans in the box fit snugly. Harrison testified that he believed the box was full of coffee filters, and not coffee cans, and that the box was “tall and slender.” Harrison did not see the accident, but he recalls that when Plaintiff showed him where the accident happened, “she showed [Harrison] the coffee filter box.” Thus, from the trial evidence as a whole, including Brookshire's disputed representation of the aisle by its recreation of the scene, it is apparent that the box in question was rectangular in shape and around 10 inches or less in height.

After the accident, Harrison reviewed the security tapes from inside the store, where over 20 cameras were present. Harrison testified that none of the cameras focused on the location where the fall occurred, so there was no video evidence of the accident. Harrison deleted the video recordings, insisting that there was nothing to preserve.

Plaintiff went for treatment at the Orthopedic Center of Monroe, where doctors diagnosed her with a T1–2 herniated disc

as a direct result of the fall. Plaintiff claims to continue to suffer pain daily, and that she will ultimately need surgery if the injury continues to worsen.

At trial, the court ruled that Plaintiff had not carried the burden of La. R.S. 9:2800.6 for merchant liability. On appeal, Plaintiff argues that the trial committed reversible error in admitting photographs of the accident scene introduced by Brookshire, in finding that Plaintiff did not satisfy the requirements of 9:2800.6, and in not applying the doctrine of spoliation of photographic and video evidence the Defendant failed to preserve.

Discussion

The imposition of tort liability on a merchant for a patron's injuries resulting from an accident is governed by La. R.S. 9:2800.6, which provides, in part:

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, in addition to all other elements of his cause of action, all of the following:

(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 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.

A person who brings a claim for an injury sustained in an accident due to a condition existing on the merchant's premises must prove that: (1) the condition presented an unreasonable risk of harm that was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the dangerous condition; and (3) the merchant failed to exercise reasonable care. La. R.S. 9:2800.6(B).

Merchants are required to exercise reasonable care to protect those who enter the store, keep the premises safe from unreasonable risks of harm and warn persons of known dangers. Jones v. Brookshire Grocery Co., 37,117 (La.App.2d Cir.5/14/03), 847 So.2d 43 ; Turner v. Brookshire Grocery Co., 34,562 (La.App.2d Cir.4/4/01), 785 So.2d 161 ; Ward v. ITT Specialty Risk Serv., Inc., 31,990 (La.App.2d Cir.6/16/99), 739 So.2d 251, writ denied, 99–2690 (La.11/24/99), 750 So.2d 987. The mere presence of a defect does not alone elevate that defect to the level of an unreasonably dangerous condition. Milton v. E & M Oil Co., 45,528 (La.App.2d Cir.9/22/10), 47 So.3d 1091.

In the present case, the only element in dispute is whether the box in the aisle presented an unreasonable risk of harm. The determination of whether a defect presents an unreasonable risk of harm involves factual findings which differ in each case. Crisler v. Paige One, Inc., 42,563 (La.App.2d Cir.1/9/08), 974 So.2d 125. Thus, there is no fixed or mechanical rule for determining whether a defect presents an unreasonable risk of harm. Lawrence v. City of Shreveport, 41,825 (La. App 2d Cir. 1/31/07), 948 So.2d 1179, writ denied, 07–0441 (La.4/20/07), 954 So.2d 166 ; Buchignani v. Lafayette Ins. Co., 41,384 (La.App.2d Cir.8/23/06), 938 So.2d 1198 ; Reitzell v. Pecanland Mall Assoc., Ltd., 37,524 (La.App.2d Cir.8/20/03), 852 So.2d 1229.

The facts of this case are similar to those of two recent cases decided by this court, Russell v. Morgan's Bestway of La., L.L.C., 47,914 (La.App.2d Cir.4/10/13), 113 So.3d 448, and Primrose v. Wal–Mart Stores, Inc., 48,370 (La.App.2d Cir.10/2/13), 127 So.3d 13. Both cases involved store patrons tripping over items in the control of the store merchant and injuring themselves. In Russell, a customer tripped and fell over one of several carts left along the aisle of a grocery store. The trial court awarded summary judgment in favor of the store operator, and the customer appealed. This court held that a stocking cart in an aisle was obvious, and there was sufficient room for customers to walk around it and still easily navigate the aisle. The cart was visible to the plaintiff and it was “open and obvious” in nature.

In Primrose, another summary judgment awarded to a store operator-defendant, a customer tripped and fell over a corner of a produce display while returning her shopping cart. This court affirmed the decision of the trial court, holding that the display was not unreasonably dangerous. This court reasoned that...