Carter v. Brookshire Grocery Co.

690 So. 2d 933, 1997 WL 88281
CourtLouisiana Court of Appeal
DecidedFebruary 26, 1997
Docket29166-CA
StatusPublished
Cited by15 cases

This text of 690 So. 2d 933 (Carter v. Brookshire Grocery 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
Carter v. Brookshire Grocery Co., 690 So. 2d 933, 1997 WL 88281 (La. Ct. App. 1997).

Opinion

690 So.2d 933 (1997)

Jean CARTER, Plaintiff-Appellee,
v.
BROOKSHIRE GROCERY CO. and ITT Hartford Insurance Company, Defendants-Appellants.

No. 29166-CA.

Court of Appeal of Louisiana, Second Circuit.

February 26, 1997.
Writ Denied May 1, 1997.

*934 Lunn, Irion, Johnson, Salley & Carlisle by James A. Mijalis, Shreveport, for Defendants-Appellants.

J. Allen Cooper, Jr., Shreveport, for Plaintiff-Appellee.

Before GASKINS, CARAWAY and PEATROSS, JJ.

GASKINS, Judge.

In this slip and fall case, Brookshire Grocery Co. and its insurer, ITT Hartford Insurance Company, appeal from an adverse trial court judgment. The plaintiff, Jean Carter, answered the appeal, seeking to increase her award of damages and to decrease the degree of comparative fault assessed against her. For the reasons assigned below, we amend the trial court judgment and, as amended, affirm.

FACTS

On October 1, 1992, sometime after 9 p.m., the plaintiff, a registered nurse, entered the *935 Brookshire's store on Kings Highway in Shreveport. For 15 to 20 minutes, she shopped for groceries. While standing in the check-out line, the plaintiff realized that she had forgotten an item. Leaving her shopping cart in line, she walked to the back of the store to retrieve a container of whipped cream.

At about 9 p.m., Scott Mutter, a store courtesy clerk, had begun mopping the rear aisle of the store as part of the normal evening clean-up procedure. Two "wet floor" signs and three orange cones were set up in the area where he was mopping. At one point, Scott was called away from his mopping to assist at the front of the store. He subsequently returned to his mopping task. When assistant store manager Kevin McLane conducted a floor inspection shortly after 9:30 p.m., Scott was still mopping, and the floor near the dairy case was wet. At about 9:50 p.m., some 30 minutes after Scott mopped the floor near the dairy case, the plaintiff fell in that area while looking for whipped cream. According to the plaintiff, when she got up, her clothing was wet.[1] However, Mr. McLane testified that when he conducted an inspection of the area moments after the fall, the floor was dry.

The plaintiff's fiancé took her to the emergency room that night. She was examined, given pain medication, and discharged. The next day, the plaintiff saw Dr. G. Michael Haynie, an orthopedic surgeon, who diagnosed a left wrist sprain and a contusion of the left hip. He noted that she also had a ganglion on her left wrist which she said predated the fall. He released her from work for one week and prescribed physical therapy. Dr. Haynie saw her for the second—and last—occasion on October 9, 1992.

Another orthopedist, Dr. Edward L. Morgan, saw the plaintiff on October 15, 1992, at which time her primary complaint was her left shoulder. He diagnosed tendinitis in the shoulder, prescribed Naprosyn (an anti-inflammatory medication), and restricted her to light work duty. Although he told her to return if she did not improve, he never treated her again. However, his records showed that his partner Dr. Dean saw her on November 1, 1993, for a flare-up involving her shoulder. The record indicated that Dr. Dean gave her injection of Celestone and a prescription for Naprosyn, and that he may have suggested physical therapy.

At the time of the accident, Dr. John Ferrell saw the plaintiff on a daily basis due to her employment in the rehabilitation department at P & S Hospital. Aware of her persistent wrist problem, he suggested that she allow him to give her an injection and put her wrist in a cast to facilitate its healing. On May 19, 1993, he saw her in his office, at which time she was x-rayed. From the x-rays, Dr. Ferrell was unable to discern any fracture or instability patterns. She tested positive on a test for deQuervain's disease (fibrosis of the sheath of a tendon in the thumb) in her left wrist. He saw her again on May 31, 1993, at which time she had decreased swelling, but still some tenderness and a ganglion. In October 1994, he saw her in the office again. At that time, he no longer found signs of deQuervain's disease. He suggested further conservative treatment of the ganglion but stated that surgery was a future possibility.

The plaintiff sued the grocery store and its insurer, claiming that she sustained injuries to her left arm, hand, hip and shoulder in the fall. At trial, she asserted that the incident aggravated her ganglion, which would require surgical removal.

Following a bench trial, the trial court ruled in favor of the plaintiff, finding that she had carried her burden of proof under La. R.S. 9:2800.6. The court found that, under the facts of this case, mopping during business hours created an unreasonable risk of harm. While the court did not equate mopping during store hours with negligence per se, it found an unreasonable risk of harm; specifically, the store employee created a situation where a customer had to cross a freshly mopped area to obtain a shopping item. The court found that the area could have been roped off and customer assistance provided to obtain items in the marked off area. However, comparative fault of 65% to the store and 35% to the plaintiff was assessed. *936 The trial court found that the warning signs were such that a reasonably attentive person should have seen and heeded them.

The trial court found that the plaintiff did not sustain a severe, debilitating injury, but soft tissue injuries to her left hip, left wrist, left shoulder, and neck. In addition to general damages of $25,000, it granted an award of $5,000 for future medical expenses for the surgical removal of the ganglion which she claimed was aggravated by the accident; however, the trial court specifically noted that when she consulted a doctor about the ganglion she failed to mention any possible connection between it and the fall. The court discounted her assertion that the fall caused her to develop deQuervain's disease in her left wrist, and it rejected her claim for lost wages due to loss of "on-call" status.

The following damages were awarded by the trial court:

Past medical expenses        $ 4,298.97
Future medical expenses        5,000.00
Lost wages                     2,208.00
Pain and suffering            25,000.00
                             __________
Total                        $36,506.97

The defendants appealed. They complain that the trial court erred in holding it liable, assessing 65% comparative fault against it, and awarding excessive damages. The plaintiff answered the appeal; she contends that the trial court assessed too high a percentage of fault against her and awarded inadequate damages.

LIABILITY UNDER LA.R.S. 9:2800.6

In three assignments of error, the defendants challenge the trial court's finding that the store was liable for the plaintiff's injuries under La.R.S. 9:2800.6.

Law

La.R.S. 9:2800.6, which is often referred to as the "slip and fall" statute, provides, in relevant part:

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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Trahan v. Wal-Mart Store Inc
W.D. Louisiana, 2019
Schroeder v. Hanover Ins. Co.
255 So. 3d 1123 (Louisiana Court of Appeal, 2018)
Sybil Schroeder v. Hanover Ins. Co.
Louisiana Court of Appeal, 2018
Harrison v. Horseshoe Entertainment
823 So. 2d 1124 (Louisiana Court of Appeal, 2002)
O'NEAL v. Scott
775 So. 2d 1155 (Louisiana Court of Appeal, 2000)
Strouse v. M & M PROPERTIES
753 So. 2d 434 (Louisiana Court of Appeal, 2000)
Marcum v. Johnston
750 So. 2d 1186 (Louisiana Court of Appeal, 2000)
Ganucheau v. Winn Dixie LA., Inc.
746 So. 2d 812 (Louisiana Court of Appeal, 1999)
Harper v. Garcia
739 So. 2d 996 (Louisiana Court of Appeal, 1999)
Taylor v. Premier Insurance
742 So. 2d 35 (Louisiana Court of Appeal, 1999)
Endsley v. Pennington
718 So. 2d 650 (Louisiana Court of Appeal, 1998)
Babb v. Boney
710 So. 2d 1132 (Louisiana Court of Appeal, 1998)
Richard v. Wal-Mart Stores, Inc.
702 So. 2d 79 (Louisiana Court of Appeal, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
690 So. 2d 933, 1997 WL 88281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-brookshire-grocery-co-lactapp-1997.