Lee v. K-Mart Corp.

• Decision Date: 26 December 1985
• Docket Number: No. CA,K-MART,CA
• Citation: 483 So.2d 609
• Parties: James David LEE and Brenda Knight Lee v.CORPORATION, et al. 84 0389.
• Court: Court of Appeal of Louisiana — District of US

Page 609

483 So.2d 609

James David LEE and Brenda Knight Lee v. K-MART CORPORATION, et al.

No. CA 84 0389.

Court of Appeal of Louisiana,

First Circuit.

Dec. 26, 1985.

Calvin Fayard, Jr., Denham Springs, Paul H. Due, Baton Rouge, Joseph Simpson, Amite, for plaintiffs-appellees.

Felix Weill, Baton Rouge, for defendant-appellant, K-Mart Corp.

Before GROVER L. COVINGTON, C.J., and LOTTINGER, EDWARDS, COLE, WATKINS, SHORTESS, CARTER, SAVOIE, LANIER, CRAIN and JOHN S. COVINGTON, JJ.

CRAIN, Judge.

This is a suit for damages in tort by a husband and wife alleging the wife slipped and fell in the shopping area of a self-service store. The husband sought to recover for medical expenses and loss of consortium, and the wife sought damages for her injuries. A trial by jury ended with the following verdicts: (1) the store owner was negligent, the negligence was a cause of the accident and damages, and the store's degree of negligence was 50%; (2) the wife was contributorily negligent, her negligence was a cause of the accident and damages, the wife's degree of negligence was 50% and the wife did not assume the risk of the accident; (3) the wife's damages were $60,000; and (4) the husband's damages were $10,000. The husband and wife filed a motion for a judgment notwithstanding the verdict (JNV) contending the defense of contributory negligence was not applicable in slip and fall cases. The district court granted the JNV and rendered a judgment in favor of the husband and wife for full damages. The store owner took this suspensive appeal. The husband and wife did not appeal or answer the appeal.

FACTS

On October 13, 1980, Mrs. Brenda K. Lee, accompanied by her two year old daughter, Jamie, went to the K-Mart Corporation (K-Mart) store in Denham Springs, Louisiana, to buy some cleaning supplies and children's books. At the store, Mrs. Lee obtained a shopping cart, placed Jamie in the basket seat on the cart and began her shopping. Mrs. Lee got the cleaning supplies and proceeded to the aisle where the children's books were located. Mrs. Lee fell while reaching for a book. As a result of the fall, Mrs. Lee sustained a concussion and a neck injury. The cause of the fall is contested by the parties.

JUDGMENT NOTWITHSTANDING THE VERDICT

In the motion for JNV, the plaintiffs contended Dulaney v. Travelers Insurance Company, 434 So.2d 578 (La.App. 1st Cir.1983) was authority for excluding contributory negligence as an affirmative defense in all "slip and fall" cases. The trial court agreed and awarded full damages despite the jury verdict assessing Mrs. Lee with 50% contributory negligence. K-Mart contends this ruling was error because (1) the statements relied on in Dulaney are dictum; (2) the dictum in Dulaney is not a correct statement of law; and (3) Dulaney is factually distinguishable from the instant case.

Mrs. Lee was in the shopping area of a self-service store when the accident occurred. Her duty to discover potential dangers in her pathway was substantially reduced because the shopping area, by design, required her to focus her eyes upon the display cases rather than on the walking surface. However, if Mrs. Lee's version of events is accepted by the finder of fact in the trial court, then, by her own admission, she observed books on the floor in the area where she subsequently fell. Mrs. Lee observed a potential danger in her pathway (even though she may not have had a duty to look for it) but, nevertheless, proceeded to the place where the potential danger was located and slipped and fell (possibly as a result of the danger). This case is distinguishable from the ordinary "slip and fall" where the injured party did not observe the potential danger and was under no legal duty to do so. Mrs. Lee's contributory negligence is not in failing to see what she should have seen, but in failing to take reasonable precautions to avoid a potential danger after she saw the danger. In this factual posture, contributory negligence is applicable. When a person actually knows of a potential danger, he (or she) must take reasonable steps to avoid the danger. Rapattoni v. Commercial Union Assurance Company, 378 So.2d 953 (La.App. 3rd Cir.1979); Alford v. Pool Offshore Company, 661 F.2d 43 (5th Cir.1981). The ruling of the trial court was in error in granting the JNV.

K-Mart also questions the validity of the jury verdict in several assignments of error.

CHALLENGE FOR CAUSE

K-Mart contends the jury was improperly constituted when the trial court overruled its challenge for cause of a prospective juror, Thomas Tillman. K-Mart used a peremptory challenge to exclude Mr. Tillman and lost the right of using this peremptory challenge on another juror. ¹ K-Mart based its challenge for cause on La.C.C.P. art. 1765(2) which provides a juror may be challenged for cause "[w]hen the juror has formed an opinion in the case or is not otherwise impartial, the cause of his bias being immaterial."

Voir dire examination elicited from Mr. Tillman the fact that his wife had been in an automobile accident and had a continuing disability as a result. Although Mr. Tillman indicated he was willing to try very hard to be fair and impartial, his responses show he was biased and could not be impartial on the issue of quantum. Plaintiffs attempted to rehabilitate Mr. Tillman but were unsuccessful. This bias justified a challenge for cause, and the trial court abused its discretion in refusing to excuse Mr. Tillman on K-Mart's challenge for cause.

This assignment of error has merit.

ADMISSIBILITY OF EVIDENCE OF CASH REGISTER RECEIPTS TO

ESTABLISH VOLUME OF BUSINESS

During the trial, counsel for the plaintiffs called Yvette Cox as a witness under cross-examination. Cox testified that on the date of the accident in 1980, she was working in the K-Mart store as an area supervisor. Subsequently, at an unspecified date in 1981, she became an assistant manager and remained in that position until sometime in 1983 when she became a merchandiser. One of her duties when she was an assistant manager was to check the daily cash register receipts. During her cross-examination, she was asked if she had "any idea how much K-Mart grosses in a day there, at that store". Counsel for the defendant objected to the relevance of this testimony. Counsel for the plaintiffs responded this evidence was relevant on the issue of the reasonableness of the measures taken by K-Mart to protect its customers from foreign objects on the store floor. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486, 488 (La.1976) wherein the following appears:

The circumstances that determine the reasonableness of protective measures include the type and volume of merchandise, the type of display, the floor space utilized for customer service, the nature of customer service, and the volume of business. [Emphasis added].

Plaintiffs' counsel asserted the evidence (gross sales) would show volume of business. Counsel for the defendants responded that volume of business meant "the number of people coming into the store" and the evidence sought would not show that. The trial court overruled the objection.

In Ketcher v. Illinois Central Gulf Railroad Company, 440 So.2d 805, 810 (La.App. 1st Cir.1983), writs denied, 444 So.2d 1220, 1222 (La.1984), appears the following:

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. State v. Ludwig, 423 So.2d 1073 (La.1982). Whether evidence is relevant is within the discretion of the trial judge and his ruling will not be disturbed on appeal in the absence of a clear abuse of this discretion. State v. Chaney, 423 So.2d 1092 (La.1982).

See also Arledge v. Bell, 463 So.2d 856 (La.App. 2nd Cir.1985); Moore, Romero & Co. v. Nan Corporation, 458 So.2d 675 (La.App. 3rd Cir.1984).

The testimony of Cox does not show gross sales, only daily cash register receipts. The daily cash register receipts do not show refunds or losses. The daily cash register receipts do not reflect the number of customers in the K-Mart store. (Obviously, number of customers and net profits would be relevant on the issue of volume of business.) Further, Cox did not testify about daily cash register receipts at the time of the accident in 1980. Her testimony was limited to the receipts on the opening day of the store in 1979 and the time when she was an assistant manager from 1981 to 1983. However, we cannot say that this evidence of cash register receipts does not have any tendency to show the economic ability of K-Mart to provide protective measures. In this posture, we cannot say the trial judge clearly abused his discretion.

This assignment of error is without merit.

EVIDENCE OF OTHER ACCIDENTS

Evidence of prior accidents or the lack thereof is admissible to show whether a thing or place which caused injury was dangerous and/or whether the defendant had knowledge of the dangerous condition. Ketcher, 440 So.2d at 810-811. At issue in the instant case is whether evidence of subsequent accidents or dissimilar accidents is admissible for a relevant purpose. The weight of authority in the United States appears to be that evidence of other similar accidents (prior and subsequent ) is admissible to (1) show the existence of a dangerous physical condition, situation or defect, Walsh v. Whitney Nat. Bank of New Orleans, 4 So.2d 553 (La.App.Orl.1941), (2) show a continuing defect or condition, or a continuing course of negligent action or conduct caused injury, (3) show the cause of the accident or injury and (4) rebut a claim of impossibility, Auzene v. Gulf Public Service Co., 188 So. 512 (La.App. 1st Cir.1939). E. Cleary, McCormick's Handbook of the Law of Evidence, Sec. 299, pp. 473-476 (2nd ed.1972); 65A C.J.S. Negligence Sec. 234, pp. 645-654 (1966); 1 S. Garde, Jones on Evidence, Sec. 420 (6th ed.1972); 29 Am.Jur.2d Evidence, Secs....