Blackman v. Brookshire Grocery Co.

966 So. 2d 1185, 7 La.App. 3 Cir. 348, 2007 La. App. LEXIS 1817, 2007 WL 2850978
Louisiana Court of Appeal·Decided October 3, 2007·No. 2007-348·Published·Cited by 21 cases

Opinion

966 So.2d 1185 (2007)

Lester BLACKMAN, et al.
v.
BROOKSHIRE GROCERY COMPANY.

No. 2007-348.

Court of Appeal of Louisiana, Third Circuit.

October 3, 2007.

*1186 V. Ross Cicardo, Cicardo Law Firm, Lafayette, LA, for Plaintiffs/Appellees Lester Blackman, Loretta Blackman.

J. Morgan Passman, Walker & Passman, Alexandria, LA, for Defendant/Appellant Brookshire Grocery Company.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.

SULLIVAN, Judge.

Defendant, Brookshire Grocery Company, appeals a decision of the trial court granting judgment in favor of Plaintiffs, Lester Blackman and Loretta Blackman. For the following reasons, we affirm.

FACTS

This case involves a slip and fall accident which occurred on July 16, 2004 at the Brookshire Grocery Company d/b/a Super One Foods (Super One) in Alexandria, Louisiana. Lester Blackman alleged that as he was grocery shopping, he suddenly and without warning slipped in a foreign substance on the floor, causing him to sustain severe personal injuries. As a result of the accident, Mr. Blackman filed suit against Super One seeking general and special damages, including past and future medical expenses, lost wages, and loss of earning capacity. His wife, Loretta Blackman, sought damages for loss of consortium.

Following a one-day trial on August 21, 2006, judgment was rendered on November *1187 15, 2006, in favor of Plaintiffs and against Super One in the sum of $35,000, together with legal interest from the date of judicial demand and all costs of the proceeding.

Super One timely filed a motion and order for suspensive appeal on November 21, 2006. It assigns two errors in its appeal to this court. First, Super One asserts that the trial court manifestly erred in finding that Plaintiffs met the burden of proof regarding constructive notice demanded by White v. Wal-Mart Stores, Inc., 97-393 (La.9/9/97), 699 So.2d 1081. Second, Super One asserts that the trial court manifestly erred in finding that the store manager had time to dispatch an employee in the produce department to the spill site prior to the fall, after having actual notice of the condition.

STANDARD OF REVIEW

An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even where the appellate court feels that its own evaluations and inferences are as reasonable. If the trial court's findings are reasonable in light of the record read in its entirety, a court of appeal may not reverse even though it is convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

When the trial court's findings are based on determinations regarding the credibility of witnesses, the manifest error—clearly wrong standard demands that great deference be given to the trier of fact's findings. This is so because only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said by the witnesses. Id. It is only where the documents or objective evidence so contradict a witness's story, or the story is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story, that the court of appeal may find manifest error or clear wrongness in a finding purportedly based on a credibility determination. Id.

LAW AND ANALYSIS

The imposition of tort liability on a merchant for a patron's injuries resulting from a slip and fall is governed by statute. Louisiana Revised Statutes 9:2800.6, which is commonly referred to as the merchant liability statute, was enacted by the Louisiana Legislature in 1988. At the time relevant to the matter at hand, the merchant liability statute provided, in pertinent part, as follows:

La.R.S. 9:2800.6. Burden of proof in claims against merchants
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 a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and *1188 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.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) "Constructive notice" means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

Four witness testified at the August 21, 2006 trial of this matter: Plaintiffs, Mr. and Mrs. Blackman; Mrs. Vivian Davis (Mrs. Davis), an independent witness; and Mr. Reynoldo Mondell (Mr. Mondell), a manager on duty at Super One at the time of the accident. The matter was taken under advisement and the attorneys were given time to submit post-trial briefs. The trial court issued written reasons for judgment on October 31, 2006. Those reasons provide, in part:

This case involves an accident which occurred on July 16, 2004 in the Super One Foods in Alexandria, La. The plaintiff's (sic), Lester Blackman and Loretta Blackman, were patrons in the store pushing a shopping cart when Mr. Blackman slipped in what an independent witness, Vivian Davis, described as spaghetti sauce in the spaghetti aisle. Ms. Davis saw the sauce on the floor prior to the fall and reported it to management. Ms. Davis testified that the spill was within 10-15 feet of the produce aisle. Ms. Davis was returning to the spill after reporting it when she saw Mr. Blackman slip in the sauce. Ms. Davis testified that it took her approximately one minute to travel from the site of the spill to the front of the store to talk to a manager. She said she spoke to the manager for approximately one minute before returning to the site of the spill. She then testified that she returned to the spill site and just before she could warn Mr. Blackman, he slipped in the sauce. She also testified that that (sic) she was in the produce aisle prior to seeing the sauce on the floor and did not hear glass break.

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Blackman v. Brookshire Grocery Co., 966 So. 2d 1185, 7 La.App. 3 Cir. 348, 2007 La. App. LEXIS 1817, 2007 WL 2850978 (La. Ct. App. 2007).

966 So. 2d 1185 (Blackman v. Brookshire Grocery Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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