Peralta v. Schwegmann Bros. Giant Supermarkets, Inc.

• Decision Date: 09 November 1981
• Docket Number: No. 12191,12191
• Parties: Sylvia PERALTA v. SCHWEGMANN BROS. GIANT SUPERMARKETS, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 720

406 So.2d 720

Sylvia PERALTA v. SCHWEGMANN BROS. GIANT SUPERMARKETS, INC.

No. 12191.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 9, 1981.

Writ Denied Jan. 8, 1982.

George R. Blue, Jr., Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, for defendant-appellant.

Roy L. Price, Metairie, for plaintiff-appellee.

Before REDMANN, SCHOTT and KLEES, JJ.

KLEES, Judge.

Defendant-appellant (Schwegmann's) appeals from an adverse judgment in favor of plaintiff-appellee for injuries from a slip and fall.

The issues presented in the appeal are: Whether or not the clean-up procedures in effect at Schwegmann's on the day of the accident were "reasonable" under the then existing circumstances, whether plaintiff was contributorily negligent and whether the award of general damages were excessive. The trial court rejected Schwegmann's contentions, we agree and affirm.

On December 29, 1977, it was raining heavily in New Orleans, and traffic in and out of the store was heavy.

A porterette, Wilma Jackson, was placed at the entranceway to mop up the water tracked in, and she suggested to her supervisor that a sign be posted to warn customers of the danger of falling but this suggestion was rejected. Instead she was told to warn customers about the wet floor and advise them to be careful. The defendants also taped a mat to the floor adjacent to the entrance doors to decrease the chances of customers slipping and falling. The porterette was having a difficult time keeping the water off the floor because of the heavy rain and the number of people coming in the store.

When plaintiff-appellee, Mrs. Peralta, walked in the store, she noticed the porterette standing at the side of the entranceway talking to a security guard. After walking approximately six (6) feet beyond the mat, she slipped and fell on the wet floor.

As a result of this fall, she injured her left elbow, left knee and her right hip.

The applicable law on slip and fall cases was summarized recently in Smith v. Winn Dixie Stores of La., Inc., 389 So.2d 900 (La.App. 4th Cir.1980) :

"The jurisprudence reflects the view that upon proof that a foreign substance was on the floor at the time the plaintiff entered the store; that the plaintiff stepped on this foreign substance; and that it caused her to slip, fall, and suffer injury, the burden shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that it was negligent. The defendant as store owner can carry its burden by establishing that it was free from fault, and that it exercised reasonable care in protecting its customers from foreign substances on the floor. Reasonable care is exercised when the store owner takes reasonable protective measures including periodic inspections in order to keep the floors and aisles free of substances or objects that may cause customers to fall. If the evidence presented is sufficient to establish that the store owner has carried its burden, then the presumption of negligence will be rebutted and the defendant will be exonerated from liability. Kavlich v. Kramer, 315 So.2d 282 (La.1975); Gonzales v. Winn Dixie Stores of La., Inc., 326 So.2d 486 (La.1976); Hanzo v. Travelers Ins. Co., 357 So.2d 1346 (La.App. 4th Cir.1978); Hyman v. National Super Markets Inc., 353 So.2d 397 (4th Cir.1977); Green v. Schwegmann's Bros. Giant Supermarkets, Inc., 325 So.2d 621 (L.App. 4th Cir.1976). One other rule which must be considered here is that the storeowner is not the insurer of the safety of its customers and further that it does not have to keep its entranceways, aisles, and passageways in perfect condition, Lott v. Winn Dixie Louisiana, Inc., 280 So.2d 659 (La.App. 4th Cir.1973); Rozelle v. Employer's Liability Assurance Corp., 260 So.2d 757 (La.App. 2nd Cir.1972).

The trial court in a portion of findings of fact and reasons for judgment found that:

A. Schwegmann's knew its floor was slippery when wet.

B. Schwegmann's was short of help on the day in question.

C. The porterette suggested to the management that a sign be posted to warn entering customers of the danger of slipping on the wet floor, but her suggestion was not accepted or followed.

D. The porterette was engaged in conversation with the security guard at the time of the accident.

E. Neither the guard or porterette recalled verbally warning the plaintiff.

F. The porterette testified that there was a great deal of traffic and she had a difficult time keeping the water off the floor.

G. The stationing of a porter at the door on rainy days, with other duties as well, who failed to warn customers as they entered, was not an adequate remedy for a proven and well known hazardous condition.

The court finally concluded that all of the...