Barton v. Wal-Mart Stores, Inc.

704 So. 2d 361, 1997 WL 758023
CourtLouisiana Court of Appeal
DecidedDecember 10, 1997
Docket97-801
StatusPublished
Cited by17 cases

This text of 704 So. 2d 361 (Barton v. Wal-Mart Stores, 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
Barton v. Wal-Mart Stores, Inc., 704 So. 2d 361, 1997 WL 758023 (La. Ct. App. 1997).

Opinion

704 So.2d 361 (1997)

Edwin L. BARTON, Sr., et ux., Plaintiffs-Appellees,
v.
WAL-MART STORES, INC., Defendant-Appellant.

No. 97-801.

Court of Appeal of Louisiana, Third Circuit.

December 10, 1997.

*362 Philip Gardiner Hunter, Alexandria, for Edwin L. Barton Sr., et ux.

James Dey Kirk, Alexandria, for Wal-Mart Stores, Inc.

Before THIBODEAUX, AMY and SULLIVAN, JJ.

AMY, Judge.

Plaintiffs, Edwin and Alice Barton, filed suit against the defendant alleging that Edwin was injured after a near fall caused by an allegedly hazardous condition inside a Wal-Mart store. The trial court found in favor of the plaintiffs. The defendant, Wal-Mart, now appeals. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

This case arises from an accident which occurred on November 15, 1993, at approximately 11:30 a.m., inside a Wal-Mart store located in Alexandria, Louisiana. The undisputed testimony in the record reveals that, on the morning in question, there was inclement weather in the area, ranging from moderate to light rain. Mr. Barton testified that, on the drive to Wal-Mart from his residence in Forest Hill, Louisiana, he experienced moderate rain which tapered off to "just a mist, what's called a sprinkle." Mr. Barton further testified that he noted the existence of puddles in Wal-Mart's parking *363 lot. Then, upon entering the store and wiping his feet on two different sets of mats, Mr. Barton slipped and nearly fell injuring his left knee and ankle.

Mr. Barton filed suit against Wal-Mart for the injuries he allegedly sustained as a result of the near fall. Mr. Barton alleged that the condition of the floor inside the store presented an unreasonable risk of harm to him and other patrons, Wal-Mart knew or should have known that the condition could cause injuries like those suffered by him, and Wal-Mart failed to exercise reasonable care to prevent the accident. Along with the damages sought by the plaintiff, his wife, Mrs. Barton, sought damages for loss of companionship, security, love and affection, which resulted from her husband's injuries.

On January 23, 1997, before hearing evidence, the trial judge considered the defendant's motion in limine to exclude the testimony of Joel McMickens, a mail carrier and a pastor. The trial judge denied Wal-Mart's motion. Following the trial on the merits, the trial judge found in favor of the Bartons. In the reasons for ruling, the trial judge found that, on the rainy day in question, Mr. Barton was injured when he slipped and nearly fell on a mixture of water and a foreign substance inside the defendant's store, a condition which presented a foreseeable, unreasonable risk of harm. The trial judge noted that Wal-Mart had actual notice that more customers used the main entrance to the store, and, therefore, on rainy days, "more water would accumulate in the vestibule than in the other entrances because the majority of the customers used that entrance." Additionally, the trial judge noted that although the defendant presented testimony concerning its "`written rainy day procedure', [the procedure] was not properly implemented." Accordingly, the trial judge awarded Mr. Barton $36,405.50 for his damages. The trial court also awarded $1,000.00 to Mrs. Barton on her loss of consortium claim.

Wal-Mart filed this appeal and asserts the following as error: (1) the trial court erred in finding that the condition of the floor or the level of monitoring of the condition of the entrance floor presented an unreasonable risk of harm to Mr. Barton; and (2) the trial court erred in allowing into evidence the testimony of Joel McMickens, testimony which was inconsistent with prior rulings and unfairly prejudicial to the defense.

LAW

Liability

Wal-Mart first contends that, assuming the factual findings of the trial court are correct, the trial court erred in concluding those factual findings were sufficient to support the finding that Mr. Barton's injuries were caused by an unreasonably dangerous condition in the store. Wal-Mart further contends that the trial court, effectively imposing on it a higher standard of care, "held [it], not to a standard of reasonableness, but strictly liable based only on finding causation and damages."

In order for a merchant to be liable to a patron under a theory of negligence in a slip and fall case, the plaintiff must satisfy the burden of proof set forth in La.R.S. 9:2800.6[1]. At the time of the plaintiff's accident, La. R.S. 9:2800.6 provided in pertinent part:

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 damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on the merchant's premises, the claimant shall have the burden of proving, *364 in addition to all other elements of his cause of action, that:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and
(3) The merchant failed to exercise reasonable care.
C. Definitions:
(1) "Constructive notice" means the condition existed for such a period of time that it would have been discovered if the merchant failed to exercise reasonable care.

In evaluating the reasonableness of the protective measures employed by a merchant, this court has considered the following factors to be viewed in light of the circumstances present in each case: "the risk involved, the merchant's type and volume of merchandise, the type of display, the floor space used for customer service, the volume of business, the time of day, [and] the section of the premises[.]" Thompson v. Stalnaker's Restaurant, 93-1447, pp. 4-5 (La.App. 3 Cir. 6/1/94), 640 So.2d 733, 736, writ denied, 94-1799 (La.10/14/94), 643 So.2d 165. A trial court's finding of liability for damages caused by a slip and fall accident at the defendant's place of business, as well as the presence of comparative fault, are factual determinations that will not be disturbed absent manifest error or unless clearly wrong. Myles v. Brookshires Grocery Co., 29,100 (La.App. 2 Cir. 1/22/97), 687 So.2d 668.

In its recent decision of White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081, the Louisiana Supreme Court, finding that La.R.S. 9:2800.6 was clear and unambiguous, overruled Welch v. Winn-Dixie Louisiana, Inc., 94-2331 (La.5/22/95), 655 So.2d 309. In doing so, the court held that "[t]he statute does not allow for the inference of constructive notice absent some showing of the temporal element. The claimant must make a positive showing of the existence of the condition prior to the fall." White, 97-393, p. 3, 699 So.2d at 1084. Whether this period of time is sufficient to result in a finding that the merchant had constructive notice of the hazardous condition is a question of fact. Id.

In White,

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Cite This Page — Counsel Stack

Bluebook (online)
704 So. 2d 361, 1997 WL 758023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barton-v-wal-mart-stores-inc-lactapp-1997.