Bernard v. Great Atlantic & Pacific Tea Co.

645 So. 2d 1157, 93 La.App. 1 Cir. 1711, 1994 La. App. LEXIS 2342, 1994 WL 462927
CourtLouisiana Court of Appeal
DecidedAugust 25, 1994
DocketNo. 93 CA 1711
StatusPublished
Cited by2 cases

This text of 645 So. 2d 1157 (Bernard v. Great Atlantic & Pacific Tea Co.) 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
Bernard v. Great Atlantic & Pacific Tea Co., 645 So. 2d 1157, 93 La.App. 1 Cir. 1711, 1994 La. App. LEXIS 2342, 1994 WL 462927 (La. Ct. App. 1994).

Opinions

|2GONZALES, Judge.

Plaintiff, John B. Bernard, was shopping at an A & P grocery store in Franklin, Louisiana, on June 18, 1990 at about 8:30 in the morning. While perusing the deli display, Mr. Bernard passed by a row of card tables that were used to display cakes and pies. While looking forward at the deli display, Mr. Bernard stepped backward and backed into one of the card tables, injuring his neck, back and legs. Mr. Bernard, and his wife, Ruth B. Bernard, filed suit on September 14,1990, naming as defendants A & P and Warren Fontenot, the manager of the store at the time of the accident. After trial on the merits, a jury verdict in favor of plaintiffs was handed down on March 5, 1993. The jury found that both A & P and Mr. Bernard were guilty of negligence contributing to the accident, and assessed Mr. Bernard with 30 percent fault and A & P with 70 percent fault. The jury awarded $28,290.28 for past and future medical expenses, $487,000 for loss of earnings and earning capacity; $100,000 for past and future physical and mental injury, pain and suffering, disability and loss of enjoyment of life; for a total of $615,290.28. Mrs. Bernard was awarded $25,000 for loss of consortium.

On March 29, 1993, a judgment was signed in favor of plaintiffs and against A & P and Warren Fontenot, in solido, amounting to $430,703.20 (seventy percent of Mr. Bernard’s award) with legal interest from September 14, 1990 until paid, and for $17,500 (seventy percent of the consortium award), with legal interest from September 14, 1990 until paid. Defendants filed a “Motion for A New Trial And Rule For Remittitur Or In The Alternative For A New Trial” on April 7, 1993, which was denied on April 12, 1,993. Defendants filed a suspensive appeal on May 7, 1993.

Defendants made the following assignments of error:

1. The lower court erred in finding defendants, A & P and Warren Fontenot, guilty of negligence which was a cause of the accident in question.

2. The lower court erred in finding plaintiff, John B. Bernard, only to be thirty percent at fault for the accident.

3. The lower court erred in awarding plaintiff, John B. Bernard, four hundred eighty-|seven3 thousand and 00/100 dollars ($487,-000.00) for loss of earnings and earning capacity.

The Bernards answered the appeal, requesting an increase in the damage awards and legal interest on the fees and expenses taxed as costs of court from the date of judgment until paid.

ASSIGNMENT OF ERROR NO. 1

Defendants argue that the trial court erred in finding the defendants guilty of negligence which was a cause of Mr. Bernard’s accident.

The owner or person having custody of immovable property has a duty to keep such property in a reasonably safe condition. This person must discover any unreasonably dangerous condition on the premises and either correct the condition or warn potential victims of its existence. This duty is the same under the strict liability theory of La. C.C. art. 2317 as under the negligent liability theory of La.C.C. art. 2315. The difference in proof between these theories of liability is that under La.C.C. art 2315, it must be shown that the owner knew or should have known of the risk, whereas under La.C.C. art 2317, a claimant is relieved of proving the defendant’s scienter. Under either theory of liability, the plaintiff has the burden of proving that: (1) the property which caused the damage was in the custody of the defendant; (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises; and (3) the defect in the property was a cause-in-fact of the resulting injury. Farr v. Montgomery Ward and Company, Inc., 430 So.2d 1141, 1143 (La.App. 1st Cir.), writ denied 435 So.2d 429 (La.1983) (citations omitted). In both negligence and strict liability cases, the reasonableness of the risk is determined by balancing the probability and magnitude of the risk against the utility of the thing. Hunt v. City Stores, Inc., 387 So.2d 585, 588 (La.1980); Carter v. Board of Supervisors Of Louisiana State University, 459 So.2d 1263, 1266 (La.App. 1st Cir.1984), writ denied 462 [1159]*1159So.2d 1248 (La.1985); see also Entrevia v. Hood, 427 So.2d 1146, 1148 (La|41983).

The plaintiff testified that the accident happened as follows:

Oh. Okay. I was just looking right quick and the lady behind the counter, Mrs. Thi-bodeaux, came up and asked me if she could help me. I said, “I’m just looking right now. I’m trying to make up my mind what I am going to do.” And I just kind of stepped back, I hit a low table, and I was moving back, you know, my progress kept bringing me back. I went to turn around and my feet got hung up in the legs of two tables. And they couldn’t move and I fell on top of the table and went over the table and landed on my head and scraped my side going over the table. I landed on my head. Hit the floor.

According to his testimony, Mr. Bernard backed into the table without looking behind him. Just minutes earlier, he had walked past these same tables. Plaintiffs safety expert, Mr. Dennis R. Howard, testified as follows:

Q. Did the empty display tables pose a hazard to John Bernard and other customers in the deli-bakery department of the Franklin A & P?
A. Yes., as I understand the way they were configured in the proximity to the meat and deli displays, and also the way the legs of this table protrude slightly out from the perimeter of the table.
Q. Would you please explain for us the hazard or hazards that wei‘e posed by these tables as constructed and located?
A. The position of the table being within a 4-foot range of the deli display meat cases locates it in a position that the people are likely to make contact with that table.
Hopefully it would be the upper surface of the table, but that does not seem to be the case in Mr. Bernard’s accident or in other incidents that I’ve learned about through studying the facts of the case.
As one backs up to view — to gain a peripheral view of the offerings, it’s foreseeable that they will back into the table and strike them at approximately — well, into the thigh area.
This table measures 27 and ¾ of an inch above the floor itself. It’s lightweight in design and construction.
And as one backs up it’s predictable to me that one would attempt to turn and discern or understand what it is they struck and in so doing a foot can easily get tangled into the legs that may extend out if you’re near the edge where the legs are when you strike it.

Mr. Howard did not find that A & P had violated any mandatory safety standards in regard to the table at issue. He conducted no tests reconstructing the accident, and he did not base his opinion about the probability of people backing up to look at the display cases upon any scientific studies. He was asked on direct examination:

|5Q. At the time of Mr. Bernard’s injury the table or tables in front of the refrigerated display cases were empty with no cloth skirting or anything of that nature on them.
How could displays in front of display cases like in the deli-bakery department at the Franklin A & P have been improved?

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Bluebook (online)
645 So. 2d 1157, 93 La.App. 1 Cir. 1711, 1994 La. App. LEXIS 2342, 1994 WL 462927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-v-great-atlantic-pacific-tea-co-lactapp-1994.