Hardman v. Kroger Co.

• Decision Date: 06 December 2000
• Docket Number: No. 34,250-CA.,34,250-CA.
• Citation: 775 So.2d 1093
• Parties: Ella HARDMAN, Plaintiff-Appellee, v. The KROGER COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

775 So.2d 1093

Ella HARDMAN, Plaintiff-Appellee, v. The KROGER COMPANY, Defendant-Appellant.

No. 34,250-CA.

Court of Appeal of Louisiana, Second Circuit.

December 6, 2000.

Rehearing Denied January 18, 2001.

Mayer, Smith & Roberts by Steven E. Soileau, Shreveport, Counsel for Appellant.

Williams & Williams by David S. Williams, Lake Charles, Counsel for Appellee.

Before BROWN, GASKINS and CARAWAY, JJ.

BROWN, J.

This appeal arises out of a rainy day slip and fall accident. Defendant, Kroger Company, has appealed from the trial court's judgment in favor of plaintiff, Ella Hardman. Because we find that plaintiff failed to meet the burden of proof mandated by La. R.S. 9:2800.6, we reverse the trial court's judgment and dismiss plaintiff's claim.

Facts and Procedural Background

Plaintiff, Ella Hardman, fell as she entered the Kroger Grocery Store located at 1867 Nelson Street in Shreveport, Louisiana, at about 8:50 a.m. on Sunday, February 1, 1998. The 54-year-old plaintiff had been driven to the store by her daughter Lashonda. Because it was raining, Lashonda dropped her mother and her two-year-old daughter off at the front door. As plaintiff entered the foyer area of the store, she took a couple of steps, slipped and fell, sustaining a non-displaced fracture of her right ankle.

Plaintiff filed suit against defendant on December 28, 1998. Trial was held on February 1, 2000. The trial court concluded that defendant had actual or constructive notice of the wet condition of the floor prior to plaintiff's fall and that under the circumstances defendant failed to exercise reasonable care. The court found plaintiff to be comparatively at fault and assessed fault as follows: 65% to defendant and 35% to plaintiff. Damages in the amount of $23,666.47 were awarded to plaintiff ($16,033.20 after reduction for her percentage of fault). It is from this judgment that defendant has appealed.

Discussion

La. R.S. 9:2800.6 is the statute which governs negligence claims brought against a merchant for damages resulting from injuries arising out of a fall due to a condition existing in or on the merchant's premises.

La. R.S. 2800.6 as amended by Acts 1996, 1st Ex.Sess., No. 8, § 1, effective May 1, 1996, provides in pertinent 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.

As emphasized by the supreme court in White v. Wal-Mart Stores, Inc., 97-0393 (La.09/09/97), 699 So.2d 1081, in order to recover, a claimant must prove, in addition to all other elements of the cause of action, each of the enumerated requirements of La. R.S. 9:2800.6(B). See also Rodgers v. Food Lion, Inc., 32,856 (La. App.2d Cir.04/05/00), 756 So.2d 624, writ denied, 00-1268 (La.06/16/00), 765 So.2d 339; Davis v. Wal-Mart Stores, Inc., 31,-542 (La.App.2d Cir.0.1/22/99), 726 So.2d 1101. Failure to prove any of these required elements will prove fatal to a plaintiffs claim. White, supra; Alexander v. Wal-Mart Stores, Inc., 96-1598 (La.App. 3d Cir.02/04/98), 707 So.2d 1292, writ denied, 98-0572 (La.04/24/98), 717 So.2d 1169.

It is defendant's contention that plaintiff did not bear her burden of proving that defendant failed to exercise reasonable care and that the trial court erred in concluding otherwise. Certainly the store knew that it was raining and that water could be tracked inside. At issue is whether defendant took reasonable measures to protect against this hazard.

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. Ward v. ITT Specialty Risk Services, Inc., 31,990 (La. App.2d Cir.06/16/99), 739 So.2d 251, writ denied, 99-2690 (La.11/24/99), 750 So.2d 987; Leonard v. Wal-Mart Stores, Inc., 97-2154 (La.App. 1st Cir.11/06/98), 721 So.2d 1059. Although the owner of a commercial establishment has an affirmative duty to keep the premises in a safe condition, he is not the insurer of the safety of his patrons. Ward, supra; Tanner v. Brookshire Grocery Company, 29,276 (La. App.2d Cir.04/02/97), 691 So.2d 871. A store owner is not liable every time an accident happens. Ward, supra; Leonard, supra.

The merchant's duty of care requires that reasonable protective measures, including periodic inspections, are undertaken to ensure that the premises are kept free from substances that might cause a customer to fall. Ward, supra; Stevens v. Winn-Dixie of Louisiana, 95-0435 (La.App. 1st Cir.11/09/95), 664 So.2d 1207. Whether measures taken are reasonable must be determined in light of the circumstances of each case. Ward, supra. As noted by the court in Stockwell v. Great Atlantic & Pacific Tea Co., 583 So.2d 1186 (La.App. 1st Cir.1991) (citations omitted), the degree of vigilance must be commensurate with the risk involved, as determined by the overall volume of business, the time of day, the section of the store and other relevant considerations.

Mindful of the great weight to be given to the trial court's factual findings and credibility determinations, we will examine the testimony and documentary evidence of record.

Melissa Davis, who was working as a courtesy clerk at Kroger at the time of plaintiff's fall, testified that her primary duty was bagging and taking groceries to customers' vehicles. As were the other clerks, she had been instructed by store management to watch out for floor conditions, particularly on rainy days. On the date of the accident, February 1, 1998, Ms. Davis worked from 6:00 a.m. to 3:00 p.m. She noted that on that day, it began raining real hard around 7:30 a.m. At that time, she put out mats with rubber bottoms and warning cones.

As a customer enters the store from the outside, he must step into a foyer, turn to the right, then walk into the store area through another set of automatic doors. Ms. Davis stated that she put one mat outside the entrance to the foyer to prevent water from being tracked inside. The entrance door, which is electronic, swings open into the foyer area. Ms. Davis testified that she did not place another mat immediately on the inside of this door, where plaintiff's fall occurred, because a mat at that spot could catch on the automatic door, bunch up and pose a tripping hazard. She also placed mats on both sides of the door leading into the store area. In addition to the mats, Ms. Davis placed yellow, triangular warning cones at each of those locations.

On the morning of the accident, Ms. Davis stated that she checked the floors periodically for water as she carried groceries out for customers. In fact, she dry mopped the foyer area not long before plaintiff's accident. Ms. Davis estimated that she was in and out of the store every ten minutes that morning and that each time she was, she made sure the floor was dry.

The co-manager in charge of the store on the morning of the accident was David Carey. He arrived around 7:00 a.m. on that day. Because of the rainy and windy conditions, Mr. Carey had Ms. Davis put out the mats and warning cones. After he learned of plaintiffs fall, he immediately went to the front of the store and found plaintiff laying in the foyer just inside the first set of doors. Mr. Carey stated that the photographs of the area were taken by him immediately after the paramedics helped plaintiff to her daughter's vehicle. The photos show three mats...Land two warning signs. Mr. Carey pointed out, however, that there were three caution cones at the time of plainti...