Beninate v. Wal-Mart Stores, Inc.

704 So. 2d 851, 97 La.App. 5 Cir. 802, 1997 La. App. LEXIS 2872, 1997 WL 757769
CourtLouisiana Court of Appeal
DecidedDecember 10, 1997
Docket97-CA-802
StatusPublished
Cited by12 cases

This text of 704 So. 2d 851 (Beninate 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
Beninate v. Wal-Mart Stores, Inc., 704 So. 2d 851, 97 La.App. 5 Cir. 802, 1997 La. App. LEXIS 2872, 1997 WL 757769 (La. Ct. App. 1997).

Opinion

704 So.2d 851 (1997)

Tanya BENINATE
v.
WAL-MART STORES, INC.

No. 97-CA-802.

Court of Appeal of Louisiana, Fifth Circuit.

December 10, 1997.

I. Rene Derojas, Campbell, McCranie, Sistrunk, Anzelmo & Hardy, Metairie, for Defendant/Appellant Wal-Mart Stores, Inc.

G. Michael Grosz, III, Peyton B. Burkhalter, Gretna, for Plaintiff/Appellee Tanya Beninate.

Before BOWES, CANNELLA and DALEY, JJ.

*852 BOWES, Judge.

Defendant/appellant, Wal-Mart Stores Inc., appeals a judgment of the district court in favor of plaintiff, Mrs. Tanya Beninate, awarding her damages in the amount of $3,417.26; these damages were reduced by 25%, which was the percentage of negligence attributed by the trial court to the plaintiff.

Mrs. Beninate filed a petition for damages and personal injuries sustained when she slipped and fell in the Wal-Mart Store on Veterans Highway in Jefferson Parish. It was alleged in the petition that after shopping, she slipped on a foreign substance located on the floor, suffering severe and disabling injuries. Suit was filed in the First Parish Court for the Parish of Jefferson. Following trial on the merits, the court granted judgment in favor of plaintiff, assessing a portion of the fault to the plaintiff. Plaintiff has answered the appeal.

EVIDENCE AND TESTIMONY

At trial, Mrs. Beninate testified that on November 15, 1994, she was doing some Christmas shopping at Wal-Mart where she purchased a bicycle for her daughter. After checking out, she pulled the bicycle back through the store toward the garden entrance where she had parked. As she was walking in the main aisle, her feet slipped from under her and she fell. The main aisle was divided by merchandise and shelves. She was directly in front of the McDonald's Restaurant located in the store; she saw that she had slipped on a smashed french fried potato. When asked if she noticed anything about the area around the potato, she stated that:

... it was a black area. I really didn't know what it was, but I could see that there was track marks along that area right there. I guess from shopping carts or something.

She was embarrassed when she fell and threw the potato away. She reported the incident to Tony Lansome, the "door greeter." However, no one took a report from her that evening nor did anyone contact her about the accident.

The next morning she woke up, her knee was badly bruised and her neck and shoulder were very stiff. Her primary care physician, Dr. David Learned, prescribed muscle relaxers and anti-inflammatories and, at some point, physical therapy. She received physical therapy twice a week for three weeks.

After seeing her primary care physician two or three times, she was referred to an orthopedist, Dr. Cazale. Dr. Cazale told her there wasn't anything he could do, that it would just take time to heal. She kept a record of time lost from work because of the accident, which was admitted at trial, showing a total of 89.75 hours missed. She missed work on days when she did not feel well, for doctor's appointments and physical therapy.

On cross-examination, Mrs. Beninate admitted that she did not see the potato before she fell, and did not know how long it had been on the floor prior to her fall. She did not see any Wal-Mart employees in the vicinity of her fall. The day after the accident, she reported the incident, saying that she had slipped and the floor was very dirty; and she could not remember whether she mentioned the potato. Upon questioning from the court, she testified that she was wearing low heel shoes.

The parties stipulated that the total in medical bills was $1,550.00. Medical records admitted at trial showed that Dr. Cazale diagnosed a cervical strain and a possible strain to the trapezius muscle. He had nothing to offer from an orthopedic standpoint.

Mr. Anthony Lansome, an employee of defendant who works at the exit door, testified that he knew the plaintiff, who worked nearby. He thought that on the evening in question, there was only one janitor on duty at the store between 6:00 and 7:00 p.m. On her way out of the store that evening, plaintiff reported to him that she had almost slipped down; he went to the area which she had described, meeting the maintenance employee there, but they did not see anything. Any employee who sees a spill is supposed to clean it up, according to instructions from Wal-Mart.

*853 Ms. Suzanne Thompson, who was an assistant manager at the store on the night in question, testified that she was assigned to the Apparel Department which is located on the opposite side of the store from McDonald's; nevertheless, her responsibility is to the entire store, not just that department. As assistant manager, she walked every aisle of the store all the time, although there were no regular intervals for doing so. She could not say how many times she had walked the area on the night in question, but did not recall seeing anything on the floor that night in front of McDonald's. She was not aware of any policy of Wal-Mart relative to customers bringing food outside of the restaurant area. She regularly saw children in the store with french fries and other foods. She, herself, did not investigate the accident.

She also stated that the janitorial staff is charged with cleaning the bathrooms every hour and it is the responsibility of Wal-Mart to maintain the area in front of the restaurant. There was one janitor on duty at the time of the accident. The employees of the Health and Beauty Aids Department, closest to the restaurant, would also be responsible to inspect the main aisle in front of McDonald's. However, there are displays in the middle of the aisle which could obstruct their view.

Steven Riddle, also an assistant store manager, testified that he was not on duty on the night in question. However, he stated that at the time and date of the accident, there would have been more shoppers in the store than at other times because of holiday shopping. He also said that there were no specific times or regular intervals to walk the main aisles of the store for inspection. There are several displays in the main aisle and it would be the primary responsibility of the department employees to maintain those displays. There is no regular interval at which an assistant manager would traverse the area in front of McDonald's. There is no maintenance documentation to show when an area was last mopped or swept. There are many employees from many departments who must travel the area in a given day, which is referred to by the employees as "Action Alley." In conclusion, he said that Wal-Mart does allow people in the store with food and beverages.

On cross-examination, Mr. Riddle testified that employee/associates are instructed about maintenance via a safety video and a handbook; they are also trained via computers. Once a hazardous condition is encountered, the employee is to stand guard in the area, then to look for someone to help him. At the time in question, the maintenance worker, or janitor, on duty would have been charged with making an hourly "safety sweep" around the store. In each department, the associate in that department is charged with responding to any unsafe or hazardous conditions in the department. It is an ongoing process, but there are also specific times to "zone" (check) the area because the department managers are instructed to "zone" their areas when they arrive, go on breaks, and before they depart for the day.

Mr. Riddle continued stating that on the day following the accident in question, Mrs.

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Bluebook (online)
704 So. 2d 851, 97 La.App. 5 Cir. 802, 1997 La. App. LEXIS 2872, 1997 WL 757769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beninate-v-wal-mart-stores-inc-lactapp-1997.