Bijou v. Circle K General, Inc.

539 So. 2d 730, 1989 La. App. LEXIS 137, 1989 WL 10664
CourtLouisiana Court of Appeal
DecidedFebruary 8, 1989
DocketNo. 87-1166
StatusPublished

This text of 539 So. 2d 730 (Bijou v. Circle K General, 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
Bijou v. Circle K General, Inc., 539 So. 2d 730, 1989 La. App. LEXIS 137, 1989 WL 10664 (La. Ct. App. 1989).

Opinion

DOMENGEAUX, Judge.

Plaintiff-appellant, Marie Derouen Bijou, sued the defendant-appellee, Circle K General, Inc. and The Circle K Corporation for injuries she sustained after an alleged slip and fall in one of the defendant’s convenience stores. The plaintiffs husband, Rudolph J. Bijou, Sr., also sued the defendant for loss of consortium. The Trial Court, in extensive reasons for judgment, denied the plaintiff recovery after finding (1) that the plaintiff failed to prove that a premises hazard existed at the defendant’s store; (2) that the plaintiff failed to prove that she received any injury on the defendant’s premises; and (3) that the defendant’s “wet floor” warning sign placed near the checkout stand discharged the defendant’s duty to warn the plaintiff of any hazardous condition. The plaintiffs have appealed these rulings by the Trial Court.

FACTS

The facts were well set forth by the Trial Court in its written reasons as follows:

Plaintiff claims that on January 24, 1985, she slipped and fell in Circle K Store No. 345-913 while making a retail purchase. Plaintiff claims that as a result of her fall that day she experienced painful and disabling back injuries that eventually required surgery.
According to the testimony of plaintiff she entered defendant’s store and turned to her right towards the coolers in the back of the store. When she was almost to the end of this aisle she stated that she slipped and fell completely to the floor on her buttocks and left leg. She attempted to break her fall with her left arm. She said that she fell on water on the floor and that as a result her clothes were wet. Bijou stated that at that point an employee up front said, “Ma’am you fell.” Plaintiff then immediately jumped up and continued to the coolers and picked up a soft drink. As she returned to the front of the store she picked up a honey bun. Plaintiff stated that when she reached the cash register she remarked to the employees “there’s the sign” indicating the wet floor sign that was set up in this area. Plaintiff stated that this was the first time she saw this sign. Under cross-examination plaintiff stated that the checkout girl called her attention to the sign rather than her noticing it and commenting as she said on direct examination. Plaintiff then paid for the items and left without any further reference to the sign or to her alleged fall the minute before. She stated that she was wearing dress boots with stacked heels. Plaintiff stated that she stumbled a couple of times when she was on her way from the store to her truck.
Plaintiff claimed that she began to feel the effects of the fall on the way to the bank after leaving the store. She said that she had stiffness in her lower back and left leg. She was examined later that day by Dr. Fletcher S. Sutton, Jr. who had her admitted to the hospital that afternoon. After receiving conservative treatment for this injury, plaintiff underwent surgery.
[732]*732It should be noted at this point that this was at least the fourth incident that involved traumatic injury to plaintiffs back, three of which resulted in lawsuits.
Deborah Backus, a zone manager for Circle K, was working in Store 345-913 on January 24, 1985. Backus swept and mopped the floor with either bleach and water or plain water about thirty minutes before plaintiff entered the store. The caution wet floor sign was placed directly facing the front door in the checkout area. The witness stated that she first saw plaintiff in the parking lot of the store. Backus stated that it looked as if plaintiff had turned her ankle and stumbled in the lot as plaintiff was getting out of her truck and once again when she reached the sidewalk in front of the store. She joked that plaintiff looked like she was drunk. Backus stated that it had been raining that day and added that plaintiff had on boots with a “skinny heel”.
Backus testified that upon entering the store the plaintiff headed to her right and down the first aisle towards the back of the store. Backus said that her attention was diverted for a few seconds. She then heard Mary Ashy, a co-worker, ask plaintiff if she was all right. Upon hearing this Backus stated she turned and saw plaintiff’s shoulders at the end of the aisle. The plaintiff was standing up. In her deposition Backus stated that when plaintiff slipped she grabbed the coke rack located at the end of the aisle. She stated that she heard the coke rack rattle. She went on to say that it was she who asked plaintiff if she was all right.
At trial she stated that it was Mary Ashy who asked if plaintiff was all right and that she did not see plaintiff slip but did see her hold on to the coke rack. At trial, she did not remember hearing the coke rack rattle. Ms. Backus likened what she saw plaintiff do at the end of the aisle to what she had seen plaintiff do twice on the way into the store. Backus further testified that when plaintiff came up to the checkout counter Bijou said, “Oh there’s the sign.” Nothing further was said. Plaintiff checked out and left. Backus stated she did not inspect the floor immediately after plaintiff left. About twenty to thirty minutes later she was in that area and noticed nothing unusual about the condition of the floor. Other customers came in after plaintiff and there were no complaints about the floor surface.
Plaintiff called the store several days later to complain about the accident. Ms. Backus stated she had difficulty remembering who plaintiff was because after she recalled the incident, she had not considered it very serious and no report had been made at that time.
Mary Brown Ashy, who was employed at the store the day of the accident, testified that she did not remember plaintiff coming into the store. She stated that she first saw plaintiff at the back of the store towards the end of the first aisle. She noticed plaintiff standing up from what appeared to be a stooped position. She stated that she did not see plaintiff fall. She stated that she heard no unusual noises that would indicate a fall.
In her deposition, the witness stated that Ms. Backus asked plaintiff if she was all right and that she did not remember plaintiff saying anything. At trial, Ashy did not remember any statements by Backus.
The remainder of Ms. Ashy’s testimony as to mopping procedures and placement of the sign was basically the same as that of Backus. She did add that the mop used was a damp mop, i.e. a wet mop put through a wringer. She also stated that the caution sign was alone and unobstructed in facing the front door and that the floor normally took fifteen to twenty minutes to dry.
Ms. Ashy is no longer employed by defendant.
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I would very much like to wipe the slate clean and start over. This is not possible and therefore, in peering through the web of confusion and/or de[733]*733ceit, the Court comes up with the following facts:
Something did happen to this plaintiff at the end of the aisle. The floor apparently had been mopped a short time before. The evidence as to the existence of a hazard is in conflict. The plaintiff claimed that she fell on water.

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Cite This Page — Counsel Stack

Bluebook (online)
539 So. 2d 730, 1989 La. App. LEXIS 137, 1989 WL 10664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bijou-v-circle-k-general-inc-lactapp-1989.