Taylor v. CNA Ins. Group, 54334
| Decision Date | 10 June 1974 |
| Docket Number | No. 54334,54334 |
| Citation | 300 So.2d 479 |
| Parties | Andrew TAYLOR et ux. v. CNA INSURANCE GROUP et al. |
| Court | Louisiana Supreme Court |
Walton J. Barnes, Arthur J. Boudreaux, III, Barnes & Barnes, Baton Rouge, for plaintiffs-applicants.
Paul H. Spaht, Kantrow, Spaht, Weaver & Walter, Baton Rouge, for defendants-respondents.
Upon application of plaintiffs, we granted certiorari in this matter so that we might review the judgment of the Court of Appeal holding that the doctrine of res ipsa loquitur could not be applied to permit recovery from defendants Food Town, Inc. and its insurer Continental Casualty Company.
On September 24, 1974, plaintiff Mary Jane Taylor,1 accompanied by her daughter, entered Food Town No. 2, a self-service supermarket, to shop for groceries. In the course of her shopping, intending to buy a carton of Coca-Colas, she proceeded down an aisle containing the store's soft drink display.
The soft drink display consisted of six-bottle cartons of soft drinks stacked one on top of the other about three or four cartons high. Between each layer of cartons was a sheet of plastic which rolled back when a carton was lifted from the top of the stack to display the cartons immediately below.
When Mrs. Taylor drew near that section of the display containing the Coca-Colas, she stopped her grocery cart which she had been pushing and reached for one of cartons of Coca-Colas on the top of the stack. The Coca-Cola cartons were apparently stacked together in one section of the display. To the left of these cartons and separated therefrom by an empty gap estimated from eighteen inches to two feet stood a similar stack of 7-Up cartons. It seems that on top of the stack of 7-Ups stood several separate quart bottles of 7-Ups which had been removed from their cartons.
Immediately upon lifting the top carton of Coca-Colas, the plastic sheet beneath rolled back, and three quart bottles of 7-Ups on the top of the adjacent stack fell. Upon impact with the floor, the three bottles of 7-Up burst, scattering glass fragments over the area, one of which cut a gash in the lower part of plaintiff's leg.
At trial, Mrs. Taylor testified that she did not in any way touch or disturb the 7-Up stack when she reached for and lifted the carton of Coca-Colas. Plaintiff's testimony is corroborated by that of her daughter. However, on cross-examination, plaintiff was questioned in connection with her conversation with an insurance adjuster some four days after the accident. The transcript of this testimony is as follows:
'Q. (By Mr. Guglielmo)
Do you remember when this lady by the name of Mrs. Jo Samford from the insurance Company talked to you and it was on October 28 at 2:30 P.M., it was four days after this accident?
'A. (By Mrs. Taylor)
Yes, Sir.
'Q. And do you remember telling her that you just can't say whether the seven-ups were next to the coca colas or whether they were on top or not?
'A. I probably did, Sir.
'Q. Because, and I am quoting from the statement and if it is wrong you correct it. You said, 'because I really wasn't paying that much attention.' Do you remember telling her that?
It is urged by defendants that it was only at the trial of this matter, approximately thirteen months subsequent to the accident, that plaintiff suddently became so certain that the 7-Up bottles which fell were located some eighteen to twenty-four inches from the Coca-Colas which she removed. Whereas, Mrs. Taylor admitted four days after the accident that she did not know where the 7-Up bottles were located that fell.
We are impressed by the findings of the trial judge, who heard and saw the witnesses. He stated in his written reasons for judgment:
'Whether the movement by the plaintiff of the cartons disturbed the other arranged bottles and cartons causing the seven-up bottles to fall has not been established; However, there seems to be a reasonable inference that this is what may have occurred.' (Emphasis ours)
The other evidence adduced at the trial did not add much. the plaintiff called a Mrs. Eula Hunt who was a customer in the store at the time; however, since she did not see the bottles fall, her testimony was not very helpful.
The manager of the store at the time of the accident was no longer employed by Food Town at the time of the trial and was unavailable to testify. Plaintiff called the manager of the store at the time of the trial under Article 1634 C.C.P.; however, upon defense objections, he was not permitted to testify as to general stacking, cleanup, inspection or policing policies employed by Food Town stores in general. The record clearly reflects that he had no knowledge of the manner in which the soft drinks were shelved or displayed in Food Town No. 2 at the time of the accident. We find that the trial judge properly excluded this testimony. Thus, neither party introduced any evidence establishing who had originally stacked the soft drinks on the date of the accident, what condition the stacks were in at the time, or what, if any, inspection procedures were employed by Food Town to discover and correct any unsafe conditions occurring in the store from time to time.
For reasons previously quoted, the trial judge concluded that the doctrine of res ipsa loquitur did not apply under the facts of this case. The Court of Appeal affirmed, citing Pilie v. National Food Stores, Inc., 245 La. 276, 158 So.2d 162 (1963) and Ziegler v. McCrory Corporation, 278 So.2d 817 (La.App.1973).
The sole issue presented to us for review is the applicability of the doctrine of res ipsa loquitur to the particular facts and circumstances of this case.
The landmark case in the jurisprudence of this State concerning the doctrine of res ipsa loquitur is Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389 (1957). Therein, we s...
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