Ardoin v. Dixieland Foods, Inc.

534 So. 2d 107, 1988 La. App. LEXIS 2322, 1988 WL 119006
CourtLouisiana Court of Appeal
DecidedNovember 9, 1988
DocketNo. 87-925
StatusPublished
Cited by2 cases

This text of 534 So. 2d 107 (Ardoin v. Dixieland Foods, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ardoin v. Dixieland Foods, Inc., 534 So. 2d 107, 1988 La. App. LEXIS 2322, 1988 WL 119006 (La. Ct. App. 1988).

Opinion

KNOLL, Judge.

Dixieland Foods, Inc. and its insurer, State Farm Fire & Casualty Company (hereafter collectively Dixieland), appeal an adverse judgment in favor of Jeane Ardoin for personal injuries she received when she tripped over a garden hose in a Dixieland grocery store. The trial court determined that Dixieland created an unreasonable risk of harm by putting a hose across a grocery aisle to thaw a refrigerated box, knowing customers would have to pass while their attention was on the shelves and not the floor. It awarded Mrs. Ardoin general damages of $40,000 and stipulated medical expenses in the amount of $17,312.36. Dixieland appeals, contending the trial court erred: (1) in finding the hose created an unreasonable risk of injury; (2) in failing to find Mrs. Ardoin guilty of comparative negligence; and, (3) in awarding an excessive amount of general damages. We affirm.

FACTS

On March 4, 1983, Mrs. Ardoin and her 4 year old granddaughter were shopping in Dixieland’s self-service supermarket in Opelousas. As Mrs. Ardoin pushed her shopping cart, partly filled with groceries, down one of the aisles, the wheels of the cart hit a garden hose stretched across the aisle, causing her to fall forward, though not all the way to the floor, trip on the hose, and strike her left knee on the back of the shopping cart. Barry Lafleur, one of Dixieland’s employees, had placed the hose across the aisle to defrost the refrigerated boxes which contained the vegetables and fruit. By hooking a hose to a faucet in the meat market and running it across the aisles, Lafleur could hose the coils with water and defrost them in several hours. As a result of the accident, Mrs. Ardoin was diagnosed as having an internal derangement of the knee and damage to the lateral femoral condyle; she received a series of steroid injections and eventually underwent surgery to the knee.

DIXIELAND’S LIABILITY

Dixieland contends that the trial court erred in its conclusion that the placement of the hose across the aisles posed an unreasonable risk of harm, and accordingly it was not liable under either the theory of negligence or strict liability.

A storekeeper is not the insurer of the safety of its customers. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976). Nonetheless, Louisiana jurisprudence, cognizant that a customer’s attention is drawn toward the inspection, location and selection of merchandise displayed on shelves and counters, recognizes that a storekeeper has the duty of maintaining a safe passageway for its patrons. Gourges v. Schwegmann Bros. Giant Super Mkts., 339 So.2d 929 (La.App. 4th Cir.1976); Ferrington v. McDaniel, 336 So.2d 796 (La.1976).

After carefully reviewing the record, we conclude that the trial court’s determination that Dixieland breached its duty by placing a hose across a passageway in its self-service grocery store was fully supported by the evidence and not clearly wrong. However, while the learned trial [109]*109court found defendants were liable in strict liability, we find these facts more appropriately determine Dixieland’s liability under the theory of general negligence rather than strict liability and so hold. We recognize that under either theory of liability, the court must determine if the risk which caused the injury is within the ambit of protection of the duty owed. McCormick v. Insured Lloyds Ins. Co., 488 So.2d 491 (La.App. 3rd Cir.1986). The hose was not defective and the aisle was not defective, but the combination of the hose in the aisle of the grocery store in these given circumstances, created a dangerous condition which was a breach of the duty owed. A customer shopping in a supermarket and focusing on the shelves is not expecting to find a garden hose lying across the aisle, and could easily be distracted from noticing it. See Gonzales, supra; Ferrington, supra. In the case sub judice, Mrs. Ardoin was pushing her partially filled cart through the aisles when her cart struck the hose, causing her to hit her knee on the back of the cart. An eyewitness saw Mrs. Ardoin trip and almost fall. Upon seeing the hose in the aisle, the eyewitness concluded that Mrs. Ardoin tripped when the cart hit the hose. Under these circumstances, Mrs. Ardoin clearly established a prima facie case of negligence and the burden shifted to Dixieland to present evidence to exculpate itself from the presumption that it was negligent. See Saucier v. Winn-Dixie Louisiana, Inc., 499 So.2d 1033 (La.App. 3rd Cir.1986).

In the present case Dixieland seeks to exculpate itself, arguing that the hose was red and clearly visible against the off-white floor, and that a caution sign was erected near the boxes which warned that the floor may be wet. We find, as did the trial court, that neither fact frees Dixieland from liability. The shelves and boxes distract a shopper’s attention and the shopping cart blocks the view of objects on the floor immediately in front of it. Therefore, the color of the hose was an insufficient protective measure. Furthermore, the caution sign was ineffective. The evidence preponderates that the sign was erected on the opposite end of the aisle from where the accident occurred, and even if it had been visible to Ardoin, it warned only against a wet floor, not the presence of a hose across the aisle.

It was uncontradicted that Dixieland had previously used an alternative method of thawing the coils, i.e., the food items would be removed temporarily overnight, and the boxes thawed during the evening hours while the store was closed. The method of using the hose to defrost the box at the time of the accident, however, was chosen simply because it was faster.

Therefore, we find no error in the trial court’s finding of liability on the part of Dixieland.

COMPARATIVE FAULT

Dixieland contends that the trial court erred in failing to assess Mrs. Ardoin with some degree of comparative fault. Dixieland reiterates its argument that Mrs. Ardoin should have seen the red hose in the aisle or should have observed it when her cart crossed over it.

In Brown v. Great Atlantic & Pacific Tea Co., Inc., 509 So.2d 557, 560 (La.App. 3rd Cir.1987), a case in which we concluded that a jury erred in finding a plaintiff partially at fault in a slip-fall case, we stated:

“Under certain circumstances a grocery store patron could be negligent in contributing to her own accident and injuries; for instance, where the shopper actually sees a potentially dangerous condition and fails to take reasonable precautions to avoid the danger. See Lee v. K-Mart Corp., 483 So.2d 609 (La.App. 1 Cir.1985), writ den., 484 So.2d 661 (La.1986). Also, it is arguable that, under certain circumstances, a store patron could fail to see a hazard which she reasonably should have seen and that by her failure she negligently caused her own injuries. However, several recent grocery/department store slip and fall cases specifically indicate that a patron’s slipping and falling on a supermarket floor does not give rise to an inference of negligence' on the part of the store patron. See Bonnette v. Aetna Life & [110]*110Cas. Ins. Co., 503 So.2d 728 (La.App. 3 Cir.1987); Saucier v. Winn-Dixie Louisiana, Inc., 499 So.2d 1033 (La.App. 3 Cir.1986); Lee v. K-Mart Corp., supra.”

Our thorough review of the record reveals no testimony which tends to show that Mrs. Ardoin actually saw or should have seen the hose across the aisle. Mrs.

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534 So. 2d 107, 1988 La. App. LEXIS 2322, 1988 WL 119006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ardoin-v-dixieland-foods-inc-lactapp-1988.