Kavlich v. Kramer

• Decision Date: 23 June 1975
• Docket Number: No. 55757,55757
• Citation: 315 So.2d 282
• Parties: Rosalea Mancuso, wife of/and James A. KAVLICH v. Wayne KRAMER, d/b/a Handi-Pak and Aetna Insurance Company.
• Court: Louisiana Supreme Court

Page 282

315 So.2d 282

Rosalea Mancuso, wife of/and James A. KAVLICH v. Wayne KRAMER, d/b/a Handi-Pak and Aetna Insurance Company.

No. 55757.

Supreme Court of Louisiana.

June 23, 1975.

Rehearing Denied July 25, 1975.

Charles J. Ferrara, Francipane, Regan & St. Pee, Metairie, for plaintiffs-applicants.

Edward A. Griffis, Talley, Anthony, Hughes & Knight, Bogalusa, for Handi-Pak and Aetna Ins. Co.

Leonard E. Yokum, Jr., Yokum & Yokum, Hammond, for Handi-Pak Food Store, Inc.

BARHAM, Justice.

Plaintiffs, Mr. and Mrs. James A. Kavlich, filed this personal injury lawsuit against the owner and insurer of a self-service convenience store in Hammond, Louisiana known as the Handi-Pak Food Store, Inc. Plaintiffs claim to be entitled to damages arising out of Mrs. Kavlich's fall in that store on July 8, 1972 at approximately 5:00 o'clock P.M., when upon entering the store, she slipped and fell, severely injuring her left knee.

The trial court, without assigning written reasons, rejected plaintiffs' demands. On appeal, the First Circuit Court of Appeal affirmed the trial court judgment. Kavlich v. Kramer, 303 So.2d 874 (La.App.1st Cir. 1974).

We granted writs, 307 So.2d 366 (La.1975), prompted chiefly by the belief that error might have occurred when on the morning of trial, the judge refused to permit plaintiffs to amend their petition to seek payment of up to $1000 under the medical payment provisions of the liability policy involved.

Since the case is now before us without limitation in the granting of writs, we are required to review the entirety of the case under the assignments of errors. Under Article 5, § 5(C) of the Louisiana Constitution of 1974, once we have granted review of a case we review both the law and the facts for determination if error has occurred. We quickly dispose of the issue of amending the petition to seek $1000 under the medical payment provisions of the policy. The defendant, Aetna Insurance Company, forwarded a check to plaintiffs discharging its obligations under the medical payments provision eight days after the demand was made for payment at trial. That matter is therefore now moot.

The main issue argued on appeal, and the one to which we now direct our attention, is whether the courts below erred in denying recovery to plaintiffs.

The Handi-Pak Store is a small self-service neighborhood grocery store, approximately 30 40 , containing four aisles. It is generally tended by one employee during the morning shift (7:00 o'clock A.M. to 3:00 o'clock P.M.) and by two employees during the busier evening shift (3:00 o'clock to 11:00 o'clock P.M.). Clean-up procedures, which have been orally related to all employees, call for the store to be swept and, if needed, also mopped at the end of the morning shift, or around 3:00 o'clock P.M. The floor is both swept and mopped at the end of the business day, at approximately 11:00 o'clock P.M., in preparation for the next day's opening. In addition, employees have been instructed to be alert for any debris on the floor, and to immediately clean any dirty area. Though no regular inspection tours are scheduled, testimony shows that most of the store is visible from the check-out counter and, further, that the employees are frequently in the store aisles, assisting customers, stocking the shelves, or refilling the frozen goods refrigeration unit.

On July 8, 1972, at approximately 5:00 o'clock P.M., Mrs. Kavlich, after parking her automobile in the black-topped parking lot in front of the Handi-Pak Store, entered the store through the front entrance. She traversed a mat located directly in front of the double glass entrance doors, and, after taking two or three steps beyond the mat, fell, injuring her left knee.

Although the issue was apparently not presented in the trial of the case and was not discussed in the opinion of the court of appeal, in argument before this Court defendant appears to contend that the piece of banana about the size of a finger was not on the floor of the store but rather was 'tracked' into the store by Mrs. Kavlich. We find no support for this contention in the record and no merit in the argument made to this Court in this regard. We conclude that there was indeed a small piece of banana about the size of a finger on the mat inside the store or on the floor immediately in the vicinity of that mat. We also conclude that the plaintiff slipped upon this piece of banana.

A storekeeper owes an affirmative duty to those who use his premises to exercise reasonable care to keep his aisles, passageways and floors in a safe condition. Calamari v. Winn Dixie of Louisiana, Inc., 300 So.2d 653 (La.App.4th Cir. 1974); Tripkovich v. Winn-Dixie Louisiana, Inc., 284 So.2d 80 (La.App.4th Cir. 1973); Bartell v. Serio, 180 So. 460 (La.App. Orl. Cir. 1938). This duty includes a reasonable effort to keep objects off of the floor which might give rise to a slip and fall. Through numerous cases Louisiana courts have reviewed occasions when fluids, pieces of fruit and vegetable, and other similar debris have caused a customer to slip, fall and be injured. See, e.g., McCauley v. Nicholas, 297 So.2d 914 (La.App.1st Cir. 1974); Barker v. Great Atlantic & Pacific Tea Co., 230 So.2d 925 (La.App.1st Cir. 1970); Frederic v. Winn-Dixie Louisiana, Inc., 227 So.2d 387 (La.App.4th Cir. 1969).

Self-service grocery stores...