MILTON v. E & M OIL COMPANY & State

• Decision Date: 22 September 2010
• Docket Number: No. 45,528–CA.,45
• Parties: Dianne MILTON, Plaintiff–Appellant v. E & M OIL COMPANY & State, Farm Fire & Casualty Co., Defendant–Appellees.
• Court: Court of Appeal of Louisiana — District of US

47 So.3d 1091

Dianne MILTON, Plaintiff–Appellant
v.
E & M OIL COMPANY & State, Farm Fire & Casualty Co., Defendant–Appellees.

No. 45,528–CA.

Court of Appeal of Louisiana,Second Circuit.

Sept. 22, 2010.

47 So.3d 1092

Anthony J. Bruscato, for Appellant.

Hudson, Potts & Bernstein by Gordon L. James, Donald H. Zeigler, III, for Appellees.

Before WILLIAMS, CARAWAY and MOORE, JJ.

MOORE, J.

Dianne Milton appeals a judgment that dismissed her tort claim arising from a trip and fall at the Hurry Back convenience store in Monroe. Finding no manifest error, we affirm.

Factual Background

On September 24, 2005, the day that Hurricane Rita passed over Monroe, Ms. Milton went to the Hurry Back, located on Louisville Avenue near its intersection with DeSiard Street, to make a purchase. A 4 x 6, commercial grade, rubber-backed mat was laid on either side of the entrance. Because of the wet conditions, a 3 x 10 mat had been placed just past the smaller

47 So.3d 1093

mat, roughly perpendicular to the door, instead of in its usual place in front of the cashier stations to the right. Ms. Milton, wearing a pair of synthetic slides and white socks, entered the store with no problem and stood in line for a few moments. After she paid for her purchase, she turned to her right and started to move toward the door. Somehow, her right foot caught the edge of the 3 x 10 mat and she fell to the floor, landing heavily on her right knee and elbow, and striking the side of her head against a wire display rack. She quickly got to her feet and left the store.

The incident was captured on the store's surveillance cameras. The video is of good quality, showing no bumps or wrinkles in the mat.

The store manager, Ms. Garcia, testified that the store leased its mats from the laundry service, Cintas, which changed out mats once a week. On each delivery day, Ms. Garcia would inspect the mats and refuse any that were wrinkled or would not lie flat. She also testified that on the day of Hurricane Rita, she directed her employees to move the 3 x 10 mat to the central traffic portion of the store because of the excess water being tracked in by customers. The video confirms that the store was very busy that day. Data from National Weather Service showed that 3.49 inches of rain fell and winds of 43 mph were recorded at Monroe Regional Airport.

Procedural History and Trial Testimony

Ms. Milton filed this suit in November 2005 against Hurry Back's owner, E & M Oil Co., and its insurer, State Farm. The original petition alleged that the carpet was buckled where she tripped on it; however, in a pretrial statement, after viewing the video, she revised her claim to allege that her “foot slipped under the floor mat.”

Trial was held over three days in December 2008, April and November 2009. In addition to her healthcare providers and her own testimony, Ms. Milton called State Farm's insurance adjuster, Larry Mason, who confirmed that he investigated the incident and concluded that E & M did nothing wrong.

Ms. Milton's lead witness was Robert L. “Bobby” Urban, the owner of Bob Moss Carpet One in Monroe. She tendered him as an “expert in floor covering in retail or commercial establishments that are commonly used in Northeast Louisiana that are suitable to be used in a retail store.” After voir dire, the district court accepted Mr. Urban “with respect to the construction and type of mats and the types of mats and the intended uses for a particular type of mat, the range of product available and the intended uses it's designed for or can be used for in ordinary circumstances.” However, the court refused to accept him as an expert in “placement of mats and their use in risk prevention,” as these are matters of lay testimony under La. C.E. art. 701.

Mr. Urban testified that in his survey of over 100 similar stores in the area, he normally found mats placed on either side of the entrance, “in the walk aisles” and by the beverage areas, but he had never seen one in the checkout area except on a temporary basis. He stated that placing a mat so close to the checkout counter was hazardous because most people, after making their purchase, pivot and drag their feet toward the door; E & M objected to this point, however, as beyond Mr. Urban's expertise, and the objection was sustained. He concluded that if the mat was necessary, it should have been placed 3 or 4 feet

47 So.3d 1094

away from the counter or flush with it. ¹

On cross-examination, Mr. Urban agreed that during a major rain event, he would place more mats in areas where water was being tracked in, and that on the video this particular mat stayed in place despite the heavy foot traffic that day.

After taking the case under advisement, the court rendered a judgment that simply rejected Ms. Milton's claims. It provided no reasons for judgment, and neither side requested any. This appeal followed.

The Parties' Positions

Ms. Milton raises two assignments of error. Her first assignment urges that the court erred in failing to find that E & M's negligence caused her injury. She does not cite the Claims Against Merchants statute, La. R.S. 9:2800.6, but she cites several cases that utilized it to impose a duty of reasonable care, such as Hardman v. Kroger Co., 34,250 (La.App. 2 Cir. 12/6/00), 775 So.2d 1093. At oral...