Massery v. Rouse's Enters., L.L.C.

• Decision Date: 29 June 2016
• Docket Number: No. 2016–CA–0121.,2016–CA–0121.
• Citation: 196 So.3d 757
• Parties: Donna MASSERY v. ROUSE'S ENTERPRISES, L.L.C., d/b/a Rouses Markets.
• Court: Court of Appeal of Louisiana — District of US

196 So.3d 757

Donna MASSERY

v.ROUSE'S ENTERPRISES, L.L.C., d/b/a Rouses Markets.

No. 2016–CA–0121.

Court of Appeal of Louisiana, Fourth Circuit.

June 29, 2016.

Christopher J. Williamson, Edward J. Womac, Jr., Law Offices of Edward J. Womac, Jr. & Associates, LLC, New Orleans, LA, for Plaintiff/Appellee.

Michael G. Gee, Porteous, Hainkel & Johnson, L.L.P., Thibodaux, LA, for Defendant/Appellant.

(Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD ).

EDWIN A. LOMBARD, Judge.

The Appellant, Rouse's Enterprises, L.L.C. d/b/a Rouses Markets (hereinafter “Rouses”), seeks review of the October 30, 2015 judgment of the First City Court of the City of New Orleans in favor of the Appellee, Donna Massery, awarding her a total of $19,490.70 in general and medical damages, plus interest and court costs, subject to a 50% fault allocation to Ms. Massery. Finding that the judgment is not manifestly erroneous or clearly wrong, we affirm.

In June 2013, Ms. Massery, who was in her early fifties at the time, sustained soft tissue injuries as a result of tripping and falling over a vegetable cart in a Rouses' grocery store located in New Orleans as she was leaving the refrigerated produce section. In its Reasons for Judgment, the trial court set-forth the facts as follows:

Plaintiff entered the Rouses store and to her immediate right was the refrigerated produce section. She proceeded to the refrigerated section and was looking for ginger. Working at the refrigerated section was Assistant Produce Manager, Jose Villa. He was re-stocking vegetables and other produce. The boxes containing the produce were stacked on a push cart. Photos of the cart depict it to be, in the court's estimation, approximately 5 to 6 feet wide (depth of approximately 24 to 36 inches) with a horizontal bed spanning its width. The bed of the cart is about 4 inches from the floor of the store. On each end of the cart is an upside down U-shaped bar extending about 5 to 6 feet high. Essentially, a number of boxes can be stacked on the bed of the cart up to 5 or 6 feet high and the employee pushes or pulls the cart from either end.

On the day in question, the cart was not stacked to capacity. There were 4 boxes at the left end of the cart and 1 box at the right end of the cart. The middle section of the cart (approximately 36 to 42 inches based on the photo) was empty.

The cart was positioned parallel to the produce section. There was a long black safety mat (approximately 36 inches wide) in front of the produce section—between the edge of the produce section and the beginning of the vegetable cart. The mat, the court assumes, is in place for the safety of the shoppers. It helps absorb water and aids in the prevention slip and falls in the area. In this case, the width the mat [sic] was the area open for shoppers to traverse the refrigerated section and shop.

The floor of the store had a linear striated design with light gray/medium gray/dark gray coloring. The vegetable cart was gray in color.

Plaintiff Massery asked Mr. Villa about the location of the ginger. The ginger was located at the top right of the produce section near plaintiff. Plaintiff avers she reached for the ginger, secured it, and turned around to step away and immediately fell over the cart. She broke the fall with her hands, but nevertheless hit her right shin and her left knee on the cart. She acknowledged having a brief conversation with Mr. Villa about the location of the ginger and produce generally; however, she disagrees with Mr. Villa about the length and substance of the discussion.

Mr. Jose Villa acknowledged speaking to plaintiff about the ginger and other produce items, but he stated that the duration of the discussion was somewhat longer than that described by the plaintiff. When asked about the length of the conversation, Mr. Villa stated it was not more than 15 minutes.

Mr. Villa testified that he noticed the plaintiff backing up closer and closer to the cart more than once during their conversation. He stated that he told the plaintiff [,] “Miss you are backing up a little too close to the cart.” He even extended his right hand behind the plaintiff's back to prevent her from getting any closer to the cart. Plaintiff heeded his warning and moved away from the cart about a half a foot. Mr. Villa stated that he continued talking to the plaintiff and continued to caution the plaintiff about the vegetable cart. After finishing their conversation and notwithstanding his warnings, plaintiff Massery turned away from the produce section and tripped and fell over the vegetable cart.

Plaintiff Massery testified that there was a brief discussion with Mr. Villa prior to her fall. She does not agree with Mr. Villa's description of the length and the substance of the discussion.

In July 2013, Ms. Massery filed suit against Rouses in First City Court seeking damages for injuries she sustained as a result of her fall. After a trial on the merits, the trial court awarded Ms. Massery $15,000 in general damages, $4,640.70 in medical specials, as well as interest and court costs subject to a 50% fault allocation to her. This timely appeal followed. Rouses raises three (3) assignments of error on appeal:

1. The trial court erred in finding that its placement of the vegetable stocking cart created an unreasonable risk of harm;

2. The trial court's assignment of 50% percent fault on Rouses and reliance on Darby v. Brookshire Grocery Co., 37,460 (La.App. 2 Cir. 7/30/03), 851 So.2d 358 [subsequent history omitted], is in error; and,

3. The trial court committed legal error in misinterpreting La. Rev. Stat. 9:2800.6.

Unreasonable Risk of Harm

In its first assignment of error, Rouses avers that Ms. Massery failed to meet her burden of proof under La. Rev.S tat. 9:2800.6. It maintains that the trial court manifestly erred in determining that the vegetable cart created an unreasonable risk of harm. The vegetable cart, it avers, was an open and obvious condition of which Ms. Massery was aware. Consequently, it avers that the placement of the vegetable cart did not create an unreasonable risk of harm as the cart was not hidden. Moreover, Rouses points out that the trial court noted in its recitation of the facts that Ms. Massery had to have seen the cart as she approached the produce department and that she was made aware of the cart by Mr. Villa several times while she remained in the produce department. The trial court further noted that Ms. Massery should have seen the sizeable vegetable cart in the produce section as she approached that department. Thus, Rouses maintains that an open and obvious condition existed for which it is not liable. Bufkin v. Felipe's Louisiana, LLC, 14–0288, p. 7 (La.10/15/14), 171 So.3d 851, 856.

The Merchant Liability Statute, La. Rev. Stat. 9:2800.6, entitled Burden of proof in claims against merchants, 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.

C. Definitions:

(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.

Pursuant to the Merchant Liability Statute, a plaintiff must prove, the following elements, in addition to all other elements of his cause of action: 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; and 3) the merchant failed to exercise reasonable care. Davis v. Cheema, Inc., 14–1316, p. 8 (La.App. 4 Cir. 5/22/15), 171 So.3d 984, 988.

Courts determine whether a condition is unreasonably dangerous by applying a risk-utility balancing test. “This test encompasses four factors: (1) the utility of the thing; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs' activities in terms of its social utility, or whether it is dangerous by nature.” Pryor v. Iberia Par. Sch. Bd., 10–1683, p. 4 (La.3/15/11), 60 So.3d 594, 597. “Simply put, the trier of fact...