Lang v. Winn-Dixie Louisiana, Inc., WINN-DIXIE

• Decision Date: 22 December 1969
• Docket Number: No. 7819,WINN-DIXIE,7819
• Citation: 230 So.2d 383
• Court: Court of Appeal of Louisiana — District of US
• Parties: Leslie LANG and Mrs. Lucille Fornea Lang v.LOUISIANA, INC., and Fidelity & Casualty Company of New York.

Page 383

230 So.2d 383

Leslie LANG and Mrs. Lucille Fornea Lang v. WINN-DIXIE LOUISIANA, INC., and Fidelity & Casualty Company

of New York.

No. 7819.

Court of Appeal of Louisiana, First Circuit.

Dec. 22, 1969.

Rehearing Denied Feb. 2, 1970.

Writ Refused April 3, 1970.

W. K. Christovich of Christovich & Kearney, New Orleans, for appellants.

Dewell D. Pittman, Bogalusa, for appellees.

Before LOTTINGER, REID and BLANCHE, JJ.

BLANCHE, Judge.

This appeal arises out of a 'slip-fall' suit to recover damages for personal injuries sustained by plaintiff Mrs. Lucille Fornea Lang and for community expenses incurred by plaintiff Leslie Lang resulting from his wife's alleged fall while shopping at defendant's grocery store in Bogalusa, Louisiana. The trial court rendered judgment in favor of plaintiff wife in the principal sum of $2,000.00 and in favor of plaintiff husband in the principal sum of $417.07 and against the store owner and its liability insurer, in solido. From this adverse judgment defendants perfected this suspensive appeal, which appeal was answered by plaintiff wife seeking an increase in quantum. We affirm.

Defendants' first assignment of error urges that the trial court erred in accepting plaintiff's testimony that she fell in defendant's store as a result of stepping on 'cut up okra' on the floor of the grocery store. Plaintiff wife testified she entered defendant's store by herself at about 5:50 P.M. to purchase some watermelons, and after obtaining a shopping cart she proceeded down an aisle of the store to the rear thereof, pushing the cart in front of her. Plaintiff testified that as she was proceeding down this aisle where the produce and frozen foods were located, her foot suddenly slipped causing her to fall to the floor. Plaintiff further testified that after she fell she looked around to ascertain on what her foot had slipped whereupon she noticed what she described as several pieces of 'thawed frozen cut-up okra' scattered about the floor. Plaintiff further testified that she was familiar with the canning and freezing of okra and that she was certain the okra on the floor was frozen, cut-up okra which had thawed out and become slimy and slippery. She stated the frozen food counter was about six feet from the place where she fell. Plaintiff further described a green streak upon the floor left by her heel where it had slipped upon a piece of the okra. Plaintiff testified that after her fall she got up and proceeded toward the front of the store where she was met by the manager to whom she related her experience, after which she returned to the scene of her fall and pointed out the okra to the manager, who then ordered a store employee to clean up the spilled okra. The store manager contradicted plaintiff's testimony and stated that he was not shown any spilled produce on the floor by the plaintiff nor did he detect any and further that he did not have a store employee clean up any produce as plaintiff alleged.

The presiding judge in his written reasons for judgment made the following pertinent comments:

'It is my conclusion that Mrs. Lang did sustain a fall and resulting injuries, and that she fell when she stepped on a piece of cut up okra which was on the floor of the super-market * * *. I was impressed with the sincerity of Mrs. Lang, and I believe her testimony.'

It is well settled that factual conclusions of trier of fact are entitled to great weight and should not be disturbed upon review in absence of manifest error, especially when based upon evaluation of credibility of opposing witnesses. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958); Orlando v. Polito, 228 La. 846, 84 So.2d 433 (1955). We have no reason to disturb the trial court's findings of fact, which obviously involved determinations of credibility of the witnesses, and we cannot say the trial court committed manifest error in accepting plaintiff's version of how the accident occurred including the presence of the thawed-out, cut-up okra. Defendants' first specification of error is without merit.

Defendants' second specification of error urges that the trial court erred in charging the store owner with constructive notice of the cut-up okra on the floor as a result of his finding of a lack of due care on the part of the store personnel, while in their third specification of error the defendants contend the trial court erred in applying, in effect, the doctrine of res ipsa loquitur where there was no basis under the evidence or the law for application of such doctrine. These two specifications of error will be treated together.

The record reflects the absence of any evidence indicating that the okra was placed upon the floor by an employee of the defendant store, and the trial court in its reasons for judgment stated that there was no direct evidence of any actual notice to or knowledge on the part of any of the store employees of the presence of the okra upon the floor. The trial court stated in its reasons for judgment, however, that 'a review of the evidence convinces me that there was not a sufficient degree of due care on the part of the store personnel to prevent my conclusion of constructive notice.'

In Smith v. Great Atlantic & Pacific Tea Company, Inc., 166 So.2d 322 (La.App.1st Cir. 1964), we had occasion to summarize some of the leading jurisprudence in the area of slip-fall cases, from which we quote the following excerpts:

'The jurisprudence in this state with respect to slip and fall cases has been firmly established. One of the leading cases on the subject is that of Peters v. Great Atlantic and Pacific Tea Company, La.App., 72 So.2d 562, decided by our brethren of the Third Circuit. Therein the plaintiff alleged that he had slipped on a bean and the Court held as follows:

'Plaintiff's cause of action arises from LSA-C.C. art. 2316, declaring persons are responsible for the damage occasioned by their negligence, imprudence or want of skill. Under this statute a store keeper has the responsibility to provide a safe place for his customers. He is not the insurer of their safety, however, and need only keep floors and passage ways in a reasonably safe condition for use in a manner consistent with the purpose of the premises. See: Savoy v. G. F. Poole Mortuary, Inc., La.App.1952, 60 So.2d 108; Boucher v. Paramount-Richards Theatres, Inc., La.App.1947, 30 So.2d 211; Lawson v. D. H. Holmes Co., Ltd., La.App.1941, 200 So. 163; Greeves v. S. H. Kress & Co., La.App.1940, 198 So. 171; Bartell v. Serio La.App.1938, 180 So. 460; Bell v. Feibleman & Co., Inc., La.App.1935, 164 So. 273; Grigsby v. Morgan & Lindsey, La.App.1933, 148 So. 506; Huber v. American Drug Stores, 1932, 19 La.App. 430, 140 So. 120.

'He must exercise the degree of care that would be exercised by an ordinary prudent man under similar circumstances. See: Ellington v. Walgreen Louisiana Co., Inc., La.App.1949, 38 So.2d 177; Knight v. Travelers Insurance Co., La.App.1947, 32 So.2d 508.

'His liability arises only when injuries are caused by his negligence; Bishop v. F. W. Woolworth & Co., La.App.1942, 8 So.2d 701, and not as a result of an extraneous object in the store or upon the floor unless the object was dangerous and allowed to remain a source of danger for a longer period of time than that in which it should have been discovered and removed. Joynes v. Valloft & Dreaux, Inc., La.App.1941, 1 So.2d 108.'

'The above language was cited with approval by us in the case of Stillwell v. Winn-Dixie Hill, Inc., La.App., 146 So.2d 707. Also pertinent is the holding of the Third Circuit Court of Appeal in the case of LeJeune v. Hartford Accident and Indemnity Co., La.App., 136 So.2d 157, wherein the Peters case was cited, the Court holding as follows:

'It is fundamental in our law that the extraneous instrumentality or other object causing the accident must be inherently or potentially dangerous. It must have been placed or left in the position in which it caused the accident by the storekeeper, his agents or employees; or, if placed by someone else, the storekeeper, his agents or employees must have had real knowledge of this, or that it had remained in such position of danger for such a length of time that they would have constructive knowledge of it and failed to remove it. Plaintiff bears the burden of proving these facts before there can be a finding of actionable negligence on the part of the owner or storekeeper. Powell v. L. Feibleman & Co., La.App., 187 So . 130; Peters v. Great Atlantic & Pacific Tea Co., La.App., 72 So.2d 562. However, there is no fixed rule on facts, and the facts of each case must be treated independently in conformity with the true civil law concept."

Defendants take the position that in accordance with the foregoing jurisprudence as well as other cases cited by defendants, plaintiffs bear the burden of proving constructive notice on the part of defendant storekeeper of the presence of the okra on the aisle, there being no evidence that the okra was placed on the aisle by an employee of the store nor that the defendant store owner had actual notice thereof. Defendants further contend that plaintiffs failed to carry this burden of proof in that the record fails to indicate how long the okra was on the floor and therefore fails to show that it was present on the floor for such a length of time as to amount to constructive notice to defendant storekeeper. Defendants further contend that the trial court erred as a matter of law in charging defendants with constructive notice on the basis of lack of sufficient degree of due care exercised by defendant storekeeper with regard to inspection procedures and that the trial court erred in applying, in effect, the doctrine of res ipsa loquitur. We do not agree with these contentions.

A review of the record convinces us that the trial court committed no manifest error in concluding that the defendant storekeeper's inspection and clean-up procedures were inadequate, at...