Miller v. Smith

• Decision Date: 02 July 1981
• Docket Number: No. 81-C-0079,81-C-0079
• Citation: Miller v. Smith, 402 So.2d 688 (La. 1981)
• Parties: Vera Jenkins MILLER and Ivy Lea Miller v. Ralph SMITH, d/b/a Skinneys and Aetna Casualty and Surety Company.
• Court: Louisiana Supreme Court

Page 688

402 So.2d 688

Vera Jenkins MILLER and Ivy Lea Miller v. Ralph SMITH, d/b/a Skinneys and Aetna Casualty and Surety Company.

No. 81-C-0079.

Supreme Court of Louisiana.

July 2, 1981.

Dissenting Opinion Aug. 21, 1981.

Rehearing Denied Sept. 18, 1981.

David W. Robinson, Due, Dodson, deGravelles, Robinson & Caskey, Baton Rouge, for plaintiffs-applicants.

Iddo Pittman, Jr., Pittman & Matheny, Hammond, for defendants-respondents.

DIXON, Chief Justice.

Plaintiffs were granted judgment in the trial court for personal injuries suffered by Mrs. Miller when she slipped and fell on the dance floor at defendant's restaurant and lounge. The Court of Appeal reversed. Miller v. Smith, 391 So.2d 1263 (La.App. 1st Cir. 1980). We affirm the judgment of the Court of Appeal.

Our attention was attracted to the case because the Court of Appeal noted that the reasons for judgment assigned by the trial judge were actually prepared by plaintiffs' lawyer a practice sometimes employed by busy trial judges.

The trial judge found that wax for the dance floor was not applied "in a safe manner" and was accumulated in a "dangerous excessive quantity" in the area where Mrs. Miller fell.

The evidence was properly analyzed in the Court of Appeal opinion. Mrs. Miller saw the bartender apply the wax just before the music started, but neither she nor any other person noted the manner of application on that evening. The cause of Mrs. Miller's fall is not clearly established. She and her husband danced the first number and completed it in spite of noticing that it was "unusually slippery." Returning to their table, Mr. Miller attempted to alert Mrs. Miller to a shadow on the floor which he suspected was wax; she noted a "shadow of something a little dark," but not in time to prevent her falling.

There was, however, no other evidence of any foreign substance, ¹ wax or otherwise on the floor where Mrs. Miller fell. There was testimony from other witnesses that the dance floor was slick on the night of the fall, but the dancing continued into the night with no complaints from the dancers that the floor was too slippery.

Not only does the proof fall short of establishing that Mrs. Miller fell because of some foreign substance on the floor, but it is also short of establishing that the floor was defective or dangerously slippery. Dance floors need to be smooth, and perhaps even "slippery" enough for shoes to slide easily on the floor; but the record does not establish that this floor was unreasonably slick for the purpose for which it was designed and used.

The judgment of the Court of Appeal is affirmed at relators' cost.

DENNIS, J., dissents with reasons.

LEMMON, J., dissents and will assign reasons.

DENNIS, Justice, dissenting.

I respectfully dissent.

It is difficult to understand the majority's conclusion that the proof fell short of establishing that Mrs. Miller fell because of some foreign substance on the floor. Mr. and Mrs. Miller testified they saw "something a little dark" on the floor where she slipped. Mrs. Miller said her foot went out from under her when she stepped on it. The Millers and other witnesses testified the floor was unusually slippery or slick. There was evidence that the bartender had a habit of applying the wax unevenly and sloppily. In fact, there does not appear to be any evidence that Mrs. Miller's fall was caused by anything other than a foreign substance on the floor. The trial court's finding of fact should not be overturned or the plaintiff penalized because the facts of this case cannot be color matched with previous cases.

LEMMON, Justice, dissenting.

We granted plaintiffs' application for certiorari because the court of appeal reversed a factual decision of the trial court, holding that the trial court's findings were not entitled to any weight because the trial court improperly allowed plaintiffs' counsel to prepare his reasons for judgment. We now affirm the court of appeal on the basis that the record does not support a finding that an excessively slippery floor caused plaintiff wife's fall.

As to the weight to be accorded to the reasons for judgment, a trial judge may properly direct counsel to prepare proposed findings of fact and conclusions of law. The preferable course is to...