Stockwell v. Great Atlantic & Pacific Tea Co.

• Decision Date: 27 June 1991
• Docket Number: No. 90,90
• Citation: 583 So.2d 1186
• Parties: Judith Gail STOCKWELL v. The GREAT ATLANTIC & PACIFIC TEA COMPANY. CA 0661. 583 So.2d 1186
• Court: Court of Appeal of Louisiana — District of US

Page 1186

583 So.2d 1186

Judith Gail STOCKWELL v. The GREAT ATLANTIC & PACIFIC TEA COMPANY.

No. 90 CA 0661.

583 So.2d 1186

Court of Appeal of Louisiana, First Circuit.

June 27, 1991.

Ronald L. Causey, Baton Rouge, for plaintiff-appellant.

Douglas K. Williams, Baton Rouge, for defendant-appellee.

Before EDWARDS, WATKINS and LeBLANC, JJ.

WATKINS, Judge.

Plaintiff, Judith Gail Stockwell, appeals the trial court judgment dismissing her claim for injuries sustained when she slipped and fell in the foyer of a grocery store owned by defendant, Great Atlantic and Pacific Tea Company (A & P).

FACTS

On October 18, 1985, at approximately 8:25 p.m., plaintiff and her eleven-year-old daughter entered the foyer of the A & P grocery store located on Florida Boulevard in Baton Rouge, Louisiana. It had been raining that evening and was still drizzling when plaintiff walked into the foyer, took several steps, and slipped and fell on water which had accumulated in the foyer.

The foyer where the plaintiff fell was glass enclosed, measuring approximately 19 1/2 X 10 feet, with glass walls and doors on three sides, and a glass ceiling. Once inside the foyer, customers were required to make a 90-degree turn to the right before passing through another door into the main shopping area. Two cloth-covered rubber-backed mats measuring 3 X 6 feet were placed in the foyer, extending from the outside entrance door all the way into the shopping area. There was approximately six to eight inches of exposed tile between the mat and the foyer wall. The plaintiff fell when she stepped off of the mat onto the exposed tile.

The plaintiff testified that when she entered the store it was dark and misting rain. She met a man leaving the store, who she later discovered was the night manager, and plaintiff asked him if they were open. The man replied that they were open 24-hours, and he opened the door for plaintiff and her daughter. Plaintiff's daughter entered the foyer first, and the plaintiff followed. According to the plaintiff, she told the man that she did not think the store was open because it was so dark.

Thereafter, plaintiff took several steps and slipped in water and fell. The man she was talking to rushed to her aid and assisted her into the store to fill out an accident report. The plaintiff testified that she was no longer talking to the man when she fell, and that she was looking straight ahead. On cross examination, the plaintiff admitted that she earlier testified in her deposition that she was talking to the man when she fell. Upon similar questioning by the court the plaintiff stated: "I was talking to the gentleman outside the door and he opened the door for us and it was dark and I had made a comment on how dark the foyer was. Then after that I went into the foyer and I slipped. I had only taken maybe two or three steps at the most when I had fallen." The plaintiff further testified that there were no mats in the foyer when she fell. On cross examination, the plaintiff admitted signing her petition for damages which states that she stepped off a mat and slipped. The plaintiff stated that the foyer was very dimly lit with no light in the foyer itself.

Stephanie Stockwell, the plaintiff's daughter, also testified that the foyer was dimly lit, that there were no mats on the floor, and that she could see that the floor was muddy and wet. She further testified that she was walking in front of her mother and did not actually see her fall.

Julius Clinton Stockwell, the plaintiff's husband, entered the store shortly after plaintiff's fall. He stated the foyer was "mighty dark" and when questioned about the floor of the foyer he stated, "[W]ell it was muddy. I don't remember any mats, any floor mats on the floor myself."

Perry Anthony Gremillion, the assistant manager on duty the evening of October 18, 1985, testified by way of deposition. Mr. Gremillion was told by an employee that a woman had fallen in the foyer. He immediately proceeded to the foyer where he observed Judith Stockwell lying on a mat with her feet extending into the tiled area, where the floor had moisture on it. He also observed a skid mark on the tile floor where Mrs. Stockwell's foot had displaced the moisture. He indicated that the area where Mrs. Stockwell stepped off the mat was the extreme left of the entrance door and was well off the normal course a person would take to get from the outside entrance door to the inside door. Mr. Gremillion explained that the moisture on the floor was apparently from customers' tracking water in and from bringing grocery buggies in from the parking lot. The normal operating procedures for A & P were to retrieve shopping buggies once every hour. It generally took several trips to retrieve all the buggies. After each group of buggies was taken into the store, the inside of the store would be mopped; after all the buggies were retrieved, which took approximately 10-15 minutes, the foyer mats were removed, and the entire foyer was mopped.

After the accident, Mr. Gremillion prepared a standard form accident report. The report stated that Judith Stockwell "was walking into the foyer during a light drizzle while buggies were being taken back into the store. She stepped off the floor mat and onto the wet tile and fell on her left side and back." Mr. Gremillion did not indicate when the foyer was last mopped, nor could he recall at the time of his deposition when the foyer was last mopped. The report indicates only one witness, the plaintiff's daughter.

Mr. Gremillion stated that A & P trained its personnel in safety procedures which included periodic inspections of the floors. Mr. Gremillion stated that he instructed his employees to constantly be aware of floor conditions and to look out for hazards on the floor. On rainy days two 3 X 6-foot mats were placed in the entrance foyer, and a mop and bucket with a caution sign were kept inside the main shopping area. Mr. Gremillion stated that he remembered the mats and bucket being in place the night of Mrs. Stockwell's accident.

Without stating its reasons, the trial court dismissed plaintiff's claims for failing to sustain her burden of proof. Plaintiff appeals, alleging that the trial court erred in finding that she failed to carry her burden of proof.

LAW

For slip and fall cases tried after July 18, 1988, ¹ the burden of proof is set forth in LSA-R.S. 9:2800.6 as follows: ²

Liability of a merchant for injuries sustained by a person while on the premises of the merchant

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 damages.

B. In a suit for damages by a person who has suffered damages as the result of a hazardous condition while on the merchant's premises, the person must prove that the accident was caused by a hazardous condition. The burden of proof then shifts to the merchant to prove that he acted in a reasonably prudent manner in exercising the duty of care he owed to the person to keep the premises free of any hazardous conditions.

C. In exculpating himself from liability under this Subsection, the merchant need not introduce the testimony of every employee of the merchant or any particular proportion thereof, but is only required to introduce the testimony of any employee shown to have actually created the hazardous condition and those employees and management personnel whose job responsibilities included inspection or cleanup of the area where the accident giving rise to the damages occurred.

D. 'Merchant' means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business.

The threshold question is whether plaintiff proved that the accident was caused by a hazardous condition. A hazardous condition is one which creates an unreasonable risk of harm to customers under the circumstances. Johnson v. Ins. Co. of North America, 360 So.2d 818 (La.1978); Lewis v. Wal-Mart Stores, Inc., 546 So.2d 267 (La.App. 3d Cir.1989). In the context of slip and fall cases, a hazard is shown to exist when the fall results from a foreign substance on the floor or from an otherwise unreasonably slippery condition. Kinchen v. J.C. Penney Co., 426 So.2d 681 (La.App. 1st Cir.1982).

Once a hazardous condition is proved, the burden then shifts to the storeowner who must present evidence to exculpate himself from the presumption that he was negligent. Kavlich v. Kramer, 315 So.2d 282 (La.1975). The store operator must then show: (1) the hazard was not caused by one of his employees, and (2) he exercised such a degree of care that he would have known under most circumstances of a hazard caused by customers. Brown v. Winn-Dixie Louisiana, Inc., 452 So.2d 685 (La.1984).

As set forth recently by this court in Doming v. K-Mart Corp., 540 So.2d 400, 403 (La.App. 1st Cir.1989):

The duty of a store owner to protect customers from foreign substances is one of reasonable care under the circumstances. Reasonable protective measures, including periodic inspections, must be taken to keep the aisles and floors free from substances or objects that may cause customers to fall. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Saucier v. Winn-Dixie Louisiana, Incorporated, 499 So.2d 1033 (La.App. 3rd Cir.1986); Arnold v. T.G. & Y. Stores Company, 466 So.2d 529 (La.App. 3rd Cir.1985), writ denied, 470 So.2d 126 (La.1985). The determination of whether a store's protective measures have been reasonable is largely dependent on the circumstances of each case, taking into consideration the type and volume of merchandise, the volume of business, and the floor space used for customer services. The degree of vigilance must be commensurate with the risk involved, as determined by the overall volume of business, the...