Cascio v. Continental Casualty Co.

547 So. 2d 743, 1989 La. App. LEXIS 1427, 1989 WL 76673
CourtLouisiana Court of Appeal
DecidedJuly 13, 1989
DocketNo. 88-CA-2281
StatusPublished
Cited by3 cases

This text of 547 So. 2d 743 (Cascio v. Continental Casualty 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
Cascio v. Continental Casualty Co., 547 So. 2d 743, 1989 La. App. LEXIS 1427, 1989 WL 76673 (La. Ct. App. 1989).

Opinion

CIACCIO, Judge.

Plaintiff, John B. Cascio, Sr. filed this action for damages for injuries received on January 7, 1987, in a “slip and fall” at Nicosia Supermarket in Violet, Louisiana. The district court awarded the plaintiff damages of $85,800.33 and defendants appeal complaining that the trial court erred in its findings on liability and quantum. We affirm the judgment of the district court.

The issues raised on appeal are: (1) Whether the trial court erred in finding an accident occurred at the defendant’s supermarket which caused injuries to the plaintiff; (2) Whether the defendant breached a duty to the plaintiff based upon the absence of proof of any object or substance on the floor in proximity to the alleged accident location; (3) Whether the trial court erred in finding the plaintiff free of negligence; and, (4) Whether the award of damages was excessive.

Liability

In its reasons for judgment, the trial judge made the following finding regarding the issue of liability:

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The plaintiff testified that on the afternoon (between 3:00 and 4:00 P.M.) of Wednesday, January 7th, 1987, he went to defendant, Nicosia’s store to purchase several items. After selecting these items, he went to a check-out line with a person or so ahead of him. Remembering he needed cigarettes, he left the line, went around the counter and obtained the cigarettes. On his return to the line, he stepped on a can of tomato paste, fell and injured himself. He further testified that he had neither seen his son, nor knew that he had been in the store.

The defendant’s principal witness, Miss Priscilla Pizani, (Prisse), assistant store manager, testified'as to the store’s clean-up procedures. This or these procedures are simply a sweep and mop by Edward Johnson, a part time porter, who is in by 7:00 A.M. and out by 10:00 A.M. No other clean-up exists except that store employees are to look for, pick up and clean up any articles or spills on the floors as they are discovered. The maximum number of employees at any one time are nine including meat people, four of whom are cashiers and two in management. No periodic check system exists. None in this instance for five (5) hours.

Miss Pizani’s office is an elevated booth allowing her or other occupants to visually oversee the store’s operations. From this advantageous observation post, she saw John Cascio, Jr. in the store prior to the time of the incident. As was her custom, she watched the suspect, John Cascio, Jr., who was looking at or selecting merchandise. She testified that she thought she heard a can fall and roll, but did not see it. Further, “I watched him (Cascio, Jr.) until he left the store.” She did not see Cascio, Sr.

Although she was suspicious of Cascio, Jr.’s honesty, Miss Pizani did not investigate the cause of the noise she thought she heard, nor did she direct anyone else to do so, despite the fact she was positive It was a can, and probably from the tomato paste section. The Court considers Miss Pizani’s testimony to be post incident conjecture.

Cascio, Jr. verified he bought oriental noodles and tomato paste, checked out, left the store and did not see or hear any news of his father until he visited the store the next morning. He did not see his father in the store and did not know he was there. This testimony is unrebutted by either testimony or circumstance.

Plaintiff, Cascio, Sr., denies seeing or knowing his son was in the store. He acknowledged seeing his son on the morning of the incident. The meeting was not amicable as he, Cascio, Sr., chastised his son for having a six pack of beer and [745]*745drinking so early in the day. Typically, Cascio, Jr. left his father’s home in less than the best of moods. Except for the statements of Miss Pizani and Mrs. Mon-tezino that the incident occurred approximately five (5) minutes after Cascio Jr. left, (Mrs. Lopez stated to an adjuster, perhaps 10 minutes). There is no evidence that Cascio Jr. and Sr. could have been in the store together. Neither Miss Pizani, Mr. Nicosia, Mrs. Montezino or Mrs. Lopez knew that Cascio Sr. was in the store until he was injured despite the advantageous observation post ladied (manned) by Miss Pizani.

Thus, the court must and does conclude that:

1. the clean-up procedures were inadequate;

2. defendant had knowledge of a rolling object on the floor;

3. defendant did nothing to locate the rolling object, but let it remain wherever it was in aisles or shopways; and

4. Injury was caused to a customer who encountered the rolling object with his foot.

Under Civil Code Articles 2315, 2316, 2317 and 2320, liability is established, unless the defendant can show negligence (victim fault) on the part of the plaintiff in some degree to bar or reduce plaintiffs recovery under Civil Code Article 2323. In this, the defendant has the burden of proof. Defendant has not carried the burden. Defendant’s attempted proof showed only that it did not exercise due diligence.

The court finds the accident occurred due to defendant’s negligence in the enumerated particulars above stated. The legal result is that defendant is liable to plaintiff.

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The defendants argue that the trial court erred in finding them negligent.

In support of their argument, defendants first contend that the plaintiff and his son were not credible witnesses and hence, were not worthy of belief. In this regard they point to the shoplifting arrest of the younger Mr. Cascio and certain alleged discrepancies in the testimony of the plaintiff.

It is within the sound discretion of the trial judge, as the finder of fact, to observe first hand the testimony and demeanor of all witnesses and to assess their credibility. See: Blanchard v. Schwegmann Giant Supermarkets, Inc., 463 So.2d 616 (La. App., 4th Cir., 1984). A reviewing court will not set aside the factual determinations by the trial court unless they are clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La., 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978).

In this case the trial judge observed the plaintiff and his son at trial. He heard them testify and concluded from their testimony that the plaintiff fell on a tomato paste can while in the defendant’s store. He further concluded that neither witness knew the other was in the store at the time of this accident and thus he apparently rejected the defendant’s theory of a conspiracy between the father and son regarding the accident. These findings are supported by the record and we cannot say that the trial judge’s assessment of credibility in this regard is clearly wrong.

The defendants next argue that the plaintiff failed to meet his burden of proof in that he failed to show that plaintiff stepped upon a can of tomato paste.

The duty of care required of store owners for the protection of their customers, in cases such as this, is set forth in Gonzales v. Winn Dixie Louisiana, Inc., 326 So.2d 486 at 488 (La., 1976):

The duty of a store owner to protect his customers from foreign substances on the floor is one of reasonable care under the circumstances. Reasonable protective measures, including periodic inspections, must be taken to keep the aisles and floors free of substances or objects that may cause customers to fall. Kavlich v. Kramer, La., 315 So.2d 282 (1975); Tripkovich v.

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562 So. 2d 961 (Louisiana Court of Appeal, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
547 So. 2d 743, 1989 La. App. LEXIS 1427, 1989 WL 76673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cascio-v-continental-casualty-co-lactapp-1989.