Bergeron v. K-Mart Corp.

540 So. 2d 406, 1989 WL 20627
CourtLouisiana Court of Appeal
DecidedMarch 7, 1989
DocketCA 87 1634
StatusPublished
Cited by11 cases

This text of 540 So. 2d 406 (Bergeron v. K-Mart Corp.) 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
Bergeron v. K-Mart Corp., 540 So. 2d 406, 1989 WL 20627 (La. Ct. App. 1989).

Opinion

540 So.2d 406 (1989)

Dwayne BERGERON and wife, Brenda Bergeron
v.
K-MART CORPORATION.

No. CA 87 1634.

Court of Appeal of Louisiana, First Circuit.

February 28, 1989.
Concurring in Part and Dissenting in Part March 7, 1989.
Rehearing Denied April 19, 1989.
Writs Denied June 2, 1989.

*407 William H. Dunckleman, Houma, for plaintiffs and appellants—Dwayne and Brenda Bergeron.

Rodney A. Seydel, Jr. and Fred Haygood, New Orleans, for defendant and appellee—K Mart Corp.

Before CARTER, LANIER and LeBLANC, JJ.

LANIER, Judge.

This is a suit for damages in tort by a husband and wife alleging the husband slipped and fell in a self-service store. The wife sought to recover for loss of consortium, and the husband sought damages for his injuries. The case was tried before a jury which found the husband 40% at fault and the store 60% at fault. The husband's damages were fixed at $126,000, and the wife's damages at $10,000. Judgment was rendered on the jury verdict awarding the husband $75,600 and the wife $6,000. The husband and wife took this devolutive appeal.

FACTS

On Sunday, November 3, 1985, Dwayne and Brenda Bergeron went to the K-Mart Corporation (K-Mart) store in Houma, Louisiana, to shop. While shopping in the cosmetics aisle of the store, they stopped to look at cosmetic bags on one of the shelves. After several minutes, Mrs. Bergeron, who was pushing a shopping cart, turned and started to walk down the aisle. Mr. Bergeron remained behind to examine the bags more closely. After several steps, Mrs. Bergeron pushed her basket through something slippery on the floor and started to slip. She was able to prevent herself from falling by grabbing onto her cart. She then turned to warn her husband, who was a few feet behind her, of the spill on the floor, but, before she could warn him, he slipped and fell to the floor. The fall resulted in injuries to Mr. Bergeron's head and neck.

JURY INSTRUCTION

(Assignment of Error Number 4)

The Bergerons contend the trial judge erred when he failed to charge the jury that a "[p]laintiff is not obligated to work in substantial pain or which would worsen his physical condition." The omission of this instruction was not objected to by the Bergerons at trial. La.C.C.P. art. 1793(C) states:

A party may not assign as error the giving or the failure to give an instruction *408 unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. If he objects prior to the time the jury retires, he shall be given an opportunity to make the objection out of the hearing of the jury.

Because the Bergerons failed to timely object to the omission of this instruction, they cannot now raise this objection on appeal. Lee v. K-Mart Corporation, 483 So.2d 609 (La.App. 1st Cir.1985), writ denied, 484 So.2d 661 (La.1986).

This assignment of error is without merit.

COMPARATIVE NEGLIGENCE OF MR. BERGERON

(Assignment of Error Number 1)

The jury found Mr. Bergeron 40% at fault. K-Mart did not appeal. Therefore, the finding that K-Mart was guilty of fault is final. The only issue is whether Mr. Bergeron was comparatively negligent. The Bergerons contend that the jury erred in finding Mr. Bergeron 40% at fault.

Comparative negligence is conduct which falls below the standard of care to which one should perform for one's protection. It is determined by reasonableness of behavior under the circumstances. Dawson v. State, Department of Corrections, 452 So.2d 357 (La.App. 1st Cir.1984). Comparative negligence is an affirmative defense that must be specially pleaded. Defendant bears the burden of proving comparative negligence by a preponderance of the evidence. Wilkinson v. Hartford Accident and Indemnity Company, 411 So.2d 22 (La.1982); Marshall v. Beno Truck Equipment, Inc., 481 So.2d 1022 (La.App. 1st Cir.1985), writ denied, 482 So.2d 620 (La.1986).

The Bergerons contend that Mr. Bergeron's conduct did not fall below the standard required of a self-service store customer. Therefore, no comparative negligence should be assessed against him. Generally, a pedestrian has a duty to see that which should be seen; he is not required to look for hidden dangers but he is bound to observe his course to see if his pathway is clear and is held to have seen those obstructions in his pathway which would be discovered by a reasonably prudent person exercising ordinary care under the circumstances. Dunaway v. Rester Refrigeration Service, Inc., 428 So.2d 1064 (La.App. 1st Cir.), writs denied, 433 So.2d 1056, 1057 (La.1983). However, in a self-service store, a multitude of items are displayed upon shelving along the aisles which entice a customer to focus his eyes upon the displays rather than on his pathway. Therefore, in a self-service store, a patron has a diminished duty to see that which should be seen because his attention is presumed to be attracted to the advertised goods on the shelves. See Kavlich v. Kramer, 315 So.2d 282 (La.1975); Dulaney v. Travelers Insurance Company, 434 So. 2d 578 (La.App. 1st Cir.1983); Guy v. Kroger Company, 204 So.2d 790 (La.App. 2nd Cir.1967).

The only people who witnessed the fall were Mr. and Mrs. Bergeron. Their testimony shows that before Mr. Bergeron fell he was looking at merchandise on the store shelves. Mr. Bergeron gave the following testimony at the trial:

Well just before I slipped I was looking at a make-up bag that my wife had showed me that she wanted to get for our sisters-in-law. And while I was looking at the bag, she moved on. And I looked at the bag and looked at a few things and I put the bag back down. And when I turned around to walk towards her, I heard my name and saw her start to form [sic] and hearing her say watch. But halfway through watch, I was down on the floor.

Mrs. Bergeron also testified that before her husband fell he was looking at cosmetic bags and not the floor. Two employees of K-Mart did not witness Mr. Bergeron's fall but saw the spill on the floor after the fall. They testified that the spill was clearly visible. There was no evidence to show that Mr. Bergeron saw the spill before he fell. Mr. Bergeron testified that before he *409 fell he did not see anything on the floor. However, after his fall, he saw a puddle of clear liquid that was the same color as the floor. Mrs. Bergeron testified that before Mr. Bergeron fell she pushed her buggy through the spill and almost slipped herself. She stated she tried to warn her husband about the spill, but, before she could warn him, he had already fallen.

A jury's factual findings will not be disturbed on appeal in the absence of manifest error. Motton v. Travelers Insurance Company, 484 So.2d 816 (La.App. 1st Cir. 1986); Varnado v. Continental Insurance Company, 446 So.2d 1343 (La.App. 1st Cir. 1984). After reviewing the evidence, we conclude that the jury manifestly erred in finding Mr. Bergeron negligent. Mr. Bergeron was looking at cosmetic bags on the store shelves just before he slipped and injured himself. Therefore, he had a diminished duty to see that which should have been seen. Given the testimony, he obviously did not see the spill on the floor before he slipped in it. Under the particular facts of this case, Mr.

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Bluebook (online)
540 So. 2d 406, 1989 WL 20627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bergeron-v-k-mart-corp-lactapp-1989.