Courville v. Piggly Wiggly Bunkie Co., Inc.

614 So. 2d 1366, 1993 WL 57768
CourtLouisiana Court of Appeal
DecidedMarch 3, 1993
Docket92-240
StatusPublished
Cited by12 cases

This text of 614 So. 2d 1366 (Courville v. Piggly Wiggly Bunkie Co., 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
Courville v. Piggly Wiggly Bunkie Co., Inc., 614 So. 2d 1366, 1993 WL 57768 (La. Ct. App. 1993).

Opinion

614 So.2d 1366 (1993)

Rainer M. COURVILLE and Burley J. Courville, Plaintiffs-Appellants,
v.
PIGGLY WIGGLY BUNKIE CO., INC. and State Farm Fire and Casualty Insurance Co., Defendants-Appellees.

No. 92-240.

Court of Appeal of Louisiana, Third Circuit.

March 3, 1993.

*1367 Elizabeth Erny Foote, Alexandria, for plaintiffs-appellants.

James Berry Reichman, Alexandria, for defendants-appellees.

Before DOMENGEAUX, C.J., and KNOLL and SAUNDERS, JJ.

DOMENGEAUX, Chief Judge.

Rainer and Burley Courville filed suit for injuries sustained when Mrs. Courville was struck by a carton of ice cream which fell from a freezer in the Piggly Wiggly in Bunkie, Louisiana. The jury found that the plaintiffs had proved the existence of a hazardous condition but also that the store's employees had acted reasonably for the safety of the store's customers. Judgment was entered dismissing the plaintiffs' suit, and the plaintiffs have appealed.

FACTS

Mrs. Courville testified that she and a friend, Annie Ducote, were shopping together in the Piggly Wiggly on May 12, 1989. At the time of the accident both women were on the freezer aisle, with Mrs. Courville near the ice cream, which was on sale, and Mrs. Ducote a few doors down near the orange juice. Mrs. Courville testified that she was unsuccessful at her first attempt to open the freezer door, so she pushed her cart away, got in front of the door and opened it with both hands. At that point, at least five half gallon cartons *1368 of ice cream fell from the freezer; one skinned Mrs. Courville's left shin from the knee to the foot and left a small indentation on her foot. Approximately six weeks later, Mrs. Courville developed a ganglion cyst at the point of the indentation. She was treated conservatively for approximately one year after which the cyst was surgically removed.

Mrs. Courville testified that she did not touch any of the ice cream cartons before the accident and that she did not know from which shelf they had fallen. She testified that the store's assistant manager, Troy Lambert, came through some double doors to help her and that he arrived after she had already picked up two of the ice cream cartons. Mr. Lambert offered to take her to a doctor, but she declined.

Annie Ducote testified that she did not see the accident because her back was turned toward Mrs. Courville. However, she immediately turned around after the accident and saw the cartons on the floor. She also returned two cartons to the freezer. She further testified that she and Mrs. Courville were the only persons on that aisle and that Mr. Lambert had come from another area of the store to help them.

Troy Lambert's testimony differed significantly from that of the two women. He testified that he was on the freezer aisle straightening cartons a few doors away from Mrs. Courville shortly before the accident. He stated that he did not see Mrs. Ducote on the aisle. He did see someone standing with the freezer door open about 10 to 15 seconds before the ice cream cartons fell, although he did not see that person touch any of the ice cream. After the accident, he recognized Mrs. Courville and went to her assistance.

The defendants offered the testimony of several store employees and an engineering expert to show that the store's procedures were reasonably designed to keep the premises free of any hazardous conditions. The testimony of these witnesses will be discussed below.

LIABILITY

On the date of the accident, May 12, 1989, La.R.S. 9:2800.6 read as follows:

§ 2800.6. Liability of a merchant for injuries sustained by a person while on the premises of the merchant
"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 suit for damages by a person who has suffered damages as the result of a hazardous condition while on the merchant's premises, the person must prove that the accident was caused by a hazardous condition. The burden of proof then shifts to the merchant to prove that he acted in a reasonably prudent manner in exercising the duty of care he owed to the person to keep the premises free of any hazardous conditions.
"C. In exculpating himself from liability under this Subsection, the merchant need not introduce the testimony of every employee of the merchant or any particular proportion thereof, but is only required to introduce the testimony of any employee shown to have actually created the hazardous condition and those employees and management personnel whose job responsibilities included inspection or cleanup of the area where the accident giving rise to the damages occurred.
"D. `Merchant' means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business."

Under this statute and under prior jurisprudence, the burden of proof shifts to the defendant to exculpate himself from liability once the plaintiff has proved that the accident was the result of a premises hazard. See Bell v. Bestyet Discount Foods, 372 So.2d 781 (La.App. 2d Cir.1979). The jury found that the plaintiffs had proved the existence of a premises hazard.

*1369 Mrs. Courville testified that the ice cream fell without her touching it. Mrs. Ducote testified that she and Mrs. Courville were the only persons on that aisle. Although Troy Lambert's testimony was contradictory in some respects, he could not say that Mrs. Courville touched the ice cream or that another customer contributed to the accident. Further, the defendants' engineering expert, Fred Vanderbrook, testified that opening the freezer alone would not have produced enough vibration or suction to cause an object to fall out of the freezer. He did state that vibrations combined with improper stacking could cause such a fall. We find no error in the jury's conclusion that a premises hazard existed. See Matthews v. Schwegmann Giant Supermarkets, Inc., 559 So.2d 488 (La.1990).

In falling merchandise cases, a plaintiff ordinarily will be required to rely on circumstantial evidence to prove the pre-existing hazard or dangerous condition, but where such evidence preponderates in favor of a finding of a premises hazard, then the burden shifts to the defendant to exculpate itself from fault by showing it exercised reasonable care through appropriate clean up and inspection procedures or otherwise. Bell v. Bestyet Discount Foods, supra, at 784.

The Courvilles argue on appeal that the jury erred in concluding the defendants met this burden. After reviewing the record, we must agree that the jury finding on this question is manifestly erroneous.

Roger Lambert, the store manager (and father of assistant manager Troy Lambert), testified that he had six stockers on duty, with each stocker assigned to an aisle. He identified Tommy Ducote as the only employee who would have checked the shelves on the freezer aisle that day. Mr. Lambert testified that employees checked the floor each hour and signed a log after each inspection. He stated he personally had given stockers instructions to watch for items that might fall from the shelves, although there was no sign-in procedure for inspections of the shelves as there was for the floors. Mr. Lambert was not in the store at the time of the accident, and he found out about it from his son, Troy.

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Bluebook (online)
614 So. 2d 1366, 1993 WL 57768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/courville-v-piggly-wiggly-bunkie-co-inc-lactapp-1993.