Kauffmann v. Royal Orleans, Inc.

• Decision Date: 02 December 1968
• Docket Number: No. 3253,3253
• Citation: 216 So.2d 394
• Parties: Mrs. Edna LEVY, Widow of Norman J. KAUFFMANN v. The ROYAL ORLEANS, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 394

216 So.2d 394

Mrs. Edna LEVY, Widow of Norman J. KAUFFMANN v. The ROYAL ORLEANS, INC., et al.

No. 3253.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 2, 1968.

Herbert S. Weil, New Orleans, for plaintiff-appellant.

Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, Michael E. Wanek, New Orleans, for defendants-appellees.

Before SAMUEL, HALL and JOHNSON, JJ.

JOHNSON, Judge.

This plaintiff fell to the floor of the restaurant called the Rib Room operated by defendant, The Royal Orleans, Inc. She filed this suit against the hotel and its public liability insurer for alleged personal injury damages. After trial the Civil District Court for the Parish of Orleans rendered judgment for defendants and plaintiff has appealed.

On December 30, 1964, plaintiff took her cousin, Mrs. Pearla Schwartz and Mrs. Schwartz's two young grandsons to The Royal Orleans Hotel to have lunch in the Rib Room. All tables were occupied when they arrived. After waiting some thirty minutes the headwaiter, Hans Mueller, went to the cocktail lounge to tell Mrs. Kauffmann that a table was available and he led Mrs. Kauffmann to the table. With Mr. Mueller in the lead, followed closely by Mrs. Kauffmann, they were walking between the other tables occupied by other patrons toward the table where Mrs. Kauffmann and her guests were to sit. When Mr. Mueller reached the table he turned to pull out a chair to seat Mrs. Kauffmann. Right at that instant Mrs. Kauffmann fell to the floor alongside her table . Mrs. Kauffmann described her fall by saying that the waiter was leading her to the table and she stepped on a piece of orange or lemon peel and 'my legs just slipped from under me and I fell and I was in a sitting position when I realized that I was down.' She did not see the peel until after she fell. She said it was on the floor close to her right side. She was given assistance to get up, after which she sat at the table and had lunch with her guests. After lunch she took her guests to the Steamer President on the Mississippi River for a boat ride in the afternoon. Mrs. Kauffmann said she and Mr. Mueller were walking between other tables and she thinks she could have touched the other tables as she walked along. She would not exactly describe the space where they walked as an aisle. At first she testified that she slipped on the peel, but when asked how she could be certain about it she answered: 'Because I slid on it and it was there and it was the only thing.' When she saw the peel it was by her side and not at her feet.

Mr. Mueller testified that the lunch hour started at 11:30 a.m., when the floors were cleaned and then inspected by him and the housekeeper at which time the peel was not on the floor. He said the peel could not have been on the floor for any period of time because he walked back and forth over that area many times and if it had been there he would have picked it up; that all the waiters are instructed to watch out for foreign material on the floor; that if anything is found they must pick it up; that a bus boy is always assigned to constantly check for such objects and if any appear to clean them up during the meal period; that when he was assisting Mrs . Kauffmann to get up he saw a very small piece of orange or lemon peel close beside her and that it was fresh in appearance. Other employees of the hotel described the system followed to clean and keep the floors clean of foreign objects and the instructions given the waiters and bus boys who keep close watch on the floor for any object that should not be there, but on this occasion none had been found and none reported to them. Some of these witnesses had started employment there after this occasion but their explanations were the same as those who were working there on that day.

Mrs. Schwartz testified by deposition that she did not see Mrs. Kauffman fall because she and her grandsons were not following Mr. Mueller and Mrs. Kauffmann to the table, though Mr. Mueller said Mrs . Kauffmann and her whole party were following him to the table.

Counsel for plaintiff wrote in his brief that the captain, meaning the headwaiter, Hans Mueller, testified that Mrs. Kauffmann 'Slipped and fell on an orange or lemon peel.' Mr. Mueller did not say that but only said that after the fall he saw the piece of peel in the vicinity of where she fell.

We quite agree with the argument of counsel for plaintiff that Mrs . Kauffmann had every reason to believe that the headwaiter would not conduct her through an aisle that was dangerous or on which there was some foreign object on which she might slip and fall. We will add that this would be true if Mr. Mueller knew of the presence of such an object or had any reason to suspect that the object was on the floor. That argument does not relieve plaintiff of the burden of proving there was negligence on the part of any hotel employee in carelessly dropping the foreign object on the floor, or that the employee had actual knowledge that such an object was on the floor at the time, or, if the employees had no actual knowledge of the object being on the floor, that the object had gotten on the floor by some other means and had been there long enough to constitute constructive notice or knowledge of its presence. We also agree that Mrs. Kauffmann was not required under these circumstances to keep her eyes constantly on the floor when she was following the headwaiter on that occasion.

In many decisions by appellate courts in many slip and fall cases in this state, it has been held that each case must be judged on the facts of that particular case. The issue before this court now is: Do these facts prove that the hotel employees failed to exercise reasonable care in its floor cleaning and inspection system and did Mrs. Kauffmann slip on a foreign object, the presence of which on the floor the employees had actual or constructive knowledge.

Counsel quotes from the case of St. Romain v. Burger Chef Systems, Inc., La.App., 211 So.2d 686, in which there was judgment for defendant. The quotation in counsel's brief recites principles of law applicable to all such cases, as follows:

'* * * Said duty is not that of an insurer and the proprietor is charged only with that reasonable exercise of care, which will prevent injury to his customers. Jones v. W. T. Grant Company (La.App.), 187 So.2d 470.

'To maintain a cause of action against the owner of a store for injuries resulting from a fall on the premises, plaintiff must show by a clear preponderance of the evidence that: (1) A dangerous condition existed at the point where the fall occurred, i.e., some foreign substance was present to account for the fall; (2) that the dangerous condition or foreign substance caused the fall; (3) that the storekeeper was negligent in allowing the dangerous condition to exist; and (4) that the storekeeper had actual or constructive knowledge of the dangerous condition. * * *'

We refer to the cases cited by counsel for plaintiff. In Hesse v. Marquette Casualty Company, La.App., 170 So.2d 173, the plaintiff slipped on the foyer floor of a lounge covered with vinyl tile, mopped and cleaned daily and waxed three times a week. The proprietor of the lounge allowed rain water to accumulate on the floor. It was raining at the time. The water created a hazardous condition. Such facts are quite distinguishable from our case here.

This court affirmed a decision by Judge Chasez, then on the Civil District Court bench, when he decided the case of Benton v. Connecticut Fire Insurance Company, La.App., 145 So.2d 89, in favor of defendant. In that case the porter and maid had cleaned the floor of the lounge on Mardi Gras Day prior to the noon hour. The porter left at 2:00 o'clock and this is relied on as a failure to keep the premises in a clean condition. Others testified that they had traversed the area and had no knowledge of and saw no foreign substance on the floor, and if any employee had seen anything it would have been removed immediately. If anything had been spilled on the floor by anybody the substance did not remain long enough to constitute constructive knowledge of it.

We find that the testimony in our case is convincing that the hotel employees were instructed to keep the floors free of any foreign objects and that the system followed in the Rib Room was sufficient to enable the court to find and hold that the premises were kept in a reasonably safe condition. There is no evidence that the waiters, bus boys and porters did not perform the duties assigned them. The time lapse between observations and inspections of the floor make it reasonable to assume that the small piece of peel found on the floor could have been there only a very short time, probably only a very few minutes or few seconds. No one had seen it and we believe that there was no kowledge or notice of it and there was no negligence proven on the part of these employees. We are not even sure that Mrs. Kauffmann's foot slipped on the peel. It was not near her feet and it still had a fresh appearance. If her foot had slipped on it, it is most likely that it would have been crushed. The case of St. Romain...