Branch v. Wal-Mart Stores, Inc.

806 So. 2d 796, 1 La.App. 5 Cir. 0988, 2001 La. App. LEXIS 3101, 2001 WL 1651911
CourtLouisiana Court of Appeal
DecidedDecember 26, 2001
DocketNo. 01-CA-0988
StatusPublished
Cited by3 cases

This text of 806 So. 2d 796 (Branch 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
Branch v. Wal-Mart Stores, Inc., 806 So. 2d 796, 1 La.App. 5 Cir. 0988, 2001 La. App. LEXIS 3101, 2001 WL 1651911 (La. Ct. App. 2001).

Opinion

1 PCIiE HARDY, Judge.

Defendant, Wal-Mart Stores, Inc. (“Wal-Mart”), appeals from a judgment in a personal injury suit filed by plaintiff, Hope Branch (“Branch”), for injuries she received from falling merchandise. Branch appeals the amount of damages awarded. We affirm.

Facts

On January 2, 1995, at approximately 9:00 p.m., Branch, her teenage son, and his friend were shopping in the sporting goods section of a Wal Mart store in Kenner, Louisiana. According to Branch and the two boys, Branch was standing in the aisle of the store while the two boys were trying on hunting apparel when an ice chest fell from an upper shelf and struck her on the head. All three testified that there were few shoppers in the sporting goods area that night and, in fact, they had been alone on the aisle for about ten to fifteen minutes. They also testified that none of them had bumped the shelf that held the ice chest or attempted to remove the ice chest before it fell.

Branch testified that, about thirty seconds after the ice chest fell, a Wal-Mart employee, Herman Eicke, arrived to investigate. She reportedly told him that she did not need to speak to a manager because she was “okay” but, a few | aminutes later, after she began to experience pain, she returned and asked him to contact a manager. James White, the assistant manager on duty, took Branch’s complaint and requested a statement about the incident from Eicke. White later took photographs of the aisle where the incident occurred.

A “couple of days” after the incident, Branch saw a physician for pain in her shoulders and neck and tingling in her arms. After visiting two other physicians and receiving physical therapy for her injuries, Branch was referred to a neurosurgeon who recommended a cervical fusion. Branch subsequently underwent a cervical fusion, which relieved the pain in her neck and shoulders. Branch testified that, although her pain has subsided, she still has some physical limitations as a result of the cervical fusion.

On September 27, 1995, Branch filed suit for injuries to her neck and back. At trial, Wal-Mart denied liability and challenged Branch’s version of the events. Wal-Mart suggested that another customer, using an unattended ladder, caused the ice chest to fall on Branch. Although no store employees witnessed the incident, Eicke’s statement indicated that he heard a loud noise on one of the aisles. When he arrived, a “female customer said a male customer knocked an ice chest onto her head.” Eicke also stated that the male customer admitted that he used a ladder, which was still unopened, to get the ice chest himself. Eicke recalled “tying up” the ladder on the aisle. Eicke did not ask the male customer his name before he left with the ice chest.

When White, the manager on duty, testified, he stated that the ice chest that had fallen was still in the middle of the aisle when he investigated the incident.1 He testified that Eicke reported that an ice chest had fallen and hit a|4female customer on the head. He denied that Eicke reported to him that an unknown male customer using an unattended ladder caused the ice chest to fall on the female [799]*799customer’s head. The manager’s report of the incident does not mention anyone other than Branch and simply states, “Customer said ice chest fell from top shelf and hit her on the top of her head.”

At the close of the evidence, the jury found Wal-Mart 100% at fault for the accident. The jury awarded Branch $90,000 in general damages and $25,353.58 for medical expenses as well as $2000 to her husband for loss of consortium.

On appeal, Wal-Mart contends that the jury manifestly erred in finding it at fault and in failing to assign fault to the unknown tortfeasor. Wal-Mart contends that Branch did not bear her burden of proof under La.R.S. 9:2800.6(A) that Wal Mart failed to exercise reasonable care to keep its aisles, passageways and floors in a reasonably safe condition. Further, Wal Mart asserts that Branch’s version of the incident in her original petition was inconsistent with the version set forth in her amended petition and trial testimony. Plaintiff appeals the amount of damages.

Falling Merchandise

La. R.S. 9:2800.6 governs negligence claims against a merchant. La. R.S. 9:2800.6(A) provides:

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.2

Recently, the Louisiana Supreme Court reiterated the law for falling merchandise cases in Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84, extensively citing its pronouneement in Smith v. Toys ‘R’ Us, 98-2085 (La.11/30/99), 754 So.2d 209:

In a “falling merchandise” case under R.S. 9:2800.6(A), as in the present case, the standard is that the merchant must use reasonable care to keep its aisles, passageways and floors in a reasonably safe condition and free of hazards which may cause injury. Further, a plaintiff who is injured by falling merchandise must prove, even by circumstantial evidence, that a premise hazard existed. Once a plaintiff proves a prima facie premise hazard, the defendant has the burden to exculpate itself from fault by showing that it used reasonable care to avoid such hazards by means such as periodic clean up and inspection procedures.
To prevail in a falling merchandise case, the customer must demonstrate that (1) he or she did not cause the merchandise to fall, (2) that another customer in the aisle at that moment did not cause the merchandise to fall, and (3) that the merchant’s negligence'was the cause of the accident: the customer must show that either a store employee or another customer placed the merchandise in an unsafe position on the shelf or otherwise caused the merchandise to be in such a precarious position that eventually, it does fall. Only when the customer has negated the first two possibilities and demonstrated the last will he or she have proved the existence of an “unreasonably dangerous” condition on the merchant’s premises.
Under Smith, though evidence of adequate inspection and clean up procedures may yet be part of the merchant’s [800]*800burden to disprove negligence, evidence of the opposite is certainly relevant as part of the customer’s burden to prove negligence: plaintiff customer will carry his or her burden if he or she can make a prima facie showing that inadequate or neglected inspection and clean up procedures left merchandise in such an unstable or precarious position that it falls from its stacked or displayed position to cause injuries to him or her. (Citations omitted).

774 So.2d at 90. Importantly, the hazardous condition may still be proved by either direct or circumstantial evidence, and, further, findings of fact regarding such hazardous conditions in falling merchandise cases made at trial level are given manifest error review. Smith, 754 So.2d at 211.

IfiAt trial, Branch, her son and his friend all testified, thus offering direct evidence, that no other person, not another customer nor any Wal Mart employee, had been in the sporting goods aisle with them for at least ten minutes before the ice chest fell.

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Bluebook (online)
806 So. 2d 796, 1 La.App. 5 Cir. 0988, 2001 La. App. LEXIS 3101, 2001 WL 1651911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branch-v-wal-mart-stores-inc-lactapp-2001.