Dickson v. Wal-Mart Stores, Inc.

535 So. 2d 800, 1988 La. App. LEXIS 1739, 1988 WL 85608
CourtLouisiana Court of Appeal
DecidedAugust 17, 1988
Docket19763-CA
StatusPublished
Cited by8 cases

This text of 535 So. 2d 800 (Dickson 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
Dickson v. Wal-Mart Stores, Inc., 535 So. 2d 800, 1988 La. App. LEXIS 1739, 1988 WL 85608 (La. Ct. App. 1988).

Opinion

535 So.2d 800 (1988)

Kathleen DICKSON, Plaintiff-Appellant,
v.
WAL-MART STORES, INC., Defendant-Appellee.

No. 19763-CA.

Court of Appeal of Louisiana, Second Circuit.

August 17, 1988.

*801 C. William Gerhardt & Associates by William F. Kendig, Jr., Shreveport, for plaintiff-appellant.

Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, for defendant-appellee, Wal-Mart Stores.

Before MARVIN, JASPER E. JONES and LINDSAY, JJ.

MARVIN, Judge.

Plaintiff appeals a judgment rejecting her demands for personal injury arising out of an alleged slip and fall on an ice patch in a Wal-Mart parking lot the day after a light snowfall. The trial court found that she did not prove there was ice in the area where she fell and that if she did slip on ice as she claimed, Wal-Mart was not at fault.

The issue of the alleged ice patch is factual. Assuming an ice patch, the issue becomes one of the comparative duty of the store owner and the customer.

We find no clear error and affirm the judgment.

FACTS

Plaintiff and her husband say they went to the Wal-Mart store on Jewella Road in Shreveport to shop on Saturday, December 24, 1983, after 3:00 p.m. Wal-Mart employees with whom plaintiff spoke that day about the alleged fall said that the conversation occurred about 11:30 a.m. This conflicting testimony will be discussed below.

The National Weather Service records show that trace amounts of snow or ice fell at the Shreveport Regional Airport December 23 and 24 and that the maximum temperature *802 on those two days was 26° and 20° F. respectively. Plaintiff recalled that it had snowed December 23. No snow or ice was falling when she went to Wal-Mart.

Plaintiff said she saw ice on grassy areas near the store but did not notice any ice on the Wal-Mart parking lot before she departed her family vehicle. She said she slipped and fell on an ice patch in a shallow "ditch" near the rear of her husband's pickup as she walked toward the store entrance. This drawing, not to scale, shows the store, the parking lot, and plaintiff's intended path to the store:

*803

*804 The "ditch" begins near the back of plaintiff's parking space and facilitates drainage of water from the parking lot into an area at the north end of the lot. Plaintiff estimated the "ditch" was about 18" wide, gradually declining to 3" in the center. A Wal-Mart employee, Bojako, who returned shopping carts to the store from the parking lot, described the "ditch" (or depression) as about four feet wide gradually declining to a two-inch maximum depth at the center. Plaintiff's photographs lead us to agree with the Wal-Mart employee's description of the ditch or drain as "hardly noticeable." Plaintiff said the ditch was leveled off after the accident and before the pictures were taken, but two Wal-Mart employees testified that construction work in the parking lot after the accident was in a different area and did not involve the drainage ditch.

Plaintiff routinely shopped at the store each week for about a year before the accident. She said she knew the drain or ditch was there but did not look at it before she fell. Instead, she looked to her left and right for approaching traffic. She said she intended to walk behind her truck and the truck parked to the left. Her testimony and photographs indicate that plaintiff fell on the left side of her truck just past the rear wheel, and not behind it. Plaintiff denied that she was diagonally walking across the parking spaces instead of walking behind them. She said she did not see ice in the drain before she fell or anywhere else in the parking lot after she fell.

Plaintiff does not contend the ditch itself was unreasonably dangerous. She argues that Wal-Mart should have discovered and removed or salted the ice or warned her of its presence. She said the ice patch was about 18 inches across and about two feet long. Plaintiff's husband, however, estimated the patch was about four feet wide and about 100 feet long. Neither could say whether the ice was smooth or jagged nor describe its color.

Plaintiff and her husband reported the fall to Debbie Blanc, the customer service manager, inside the store. They asked her to have the ice patch salted. They saw her send a man outside with a sack of salt but they did not go back outside with him.

Ms. Blanc knew plaintiff by sight and by name since she was a regular customer and recognized her truck in the parking lot. She pointed out the truck to John Bojako, Wal-Mart's maintenance and cleanup man, and sent him out to find and put salt on the ice patch. He did not mention the truck in his testimony but said he found no ice in the area Ms. Blanc pointed out to him. He did find and salt an ice patch measuring about 18 inches in diameter in a parking space two rows to the left of where plaintiff's truck was parked, in a space near the store entrance in Section D as labeled on the diagram above. This ice patch was in the front of the parking space where the car front would be and not behind the parking spaces where customers walk to the store. When Mr. Bojako returned inside from his mission, he "fussed" at Ms. Blanc because there was no ice in the area she pointed out to him.

For about 20 minutes after reporting the fall plaintiff and her husband shopped, but made no purchases. Plaintiff said she did not pass or look for the ice patch as she walked back to the truck.

Plaintiff worked for Ben Bacon Lures five days a week, Monday through Friday. She testified she worked until noon on Christmas Eve in 1983, a Saturday, and left work around 3:00 p.m. after having Christmas dinner and exchanging gifts with her co-workers. She said she went home and got her husband after she left work and they went to Wal-Mart. Plaintiff's husband recalled going to Wal-Mart after he picked her up from work "along in the middle of the day."

Mr. Bojako worked at Wal-Mart until noon on Saturdays. He left the store around noon on Saturday, December 24, 1983. He said Ms. Blanc sent him out to look for ice in the parking lot around 11:30 a.m., saying that a customer had reported a fall. Ms. Blanc, who knew plaintiff by sight and by name, recalled directing Mr. Bojako to attend to the ice after plaintiff reported her fall. Plaintiff said she had *805 known Debbie Blanc "since she was a little girl."

Plaintiff, 63 years old in 1983, described her injuries as a bruised right hip and pain in her back and her knee. She saw a doctor a few days after the fall. He prescribed crutches and pain medicine to relieve her discomfort. Abnormalities shown in X rays were caused by aging rather than trauma and were considered normal for someone plaintiff's age (63). Plaintiff's doctor attributed no permanent residual disability as a result of the fall.

Another doctor performed diagnostic surgery on plaintiff's knee about two years after the fall. He opined her knee injury was more likely caused by degenerative arthritis than by a slip and fall, while agreeing that a slip and fall could aggravate a pre-existing degenerative condition.

Ms. Blanc testified that when the fall was reported to her, plaintiff's husband commented, "Well, you know how it is with those old arthritic knees of hers." Plaintiff and her husband denied that this was said and denied that she had any problem with her knees before the fall.

Ms. Blanc and Mr. Bojako arrived at the store before 9:00 a.m.

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

Related

Keller v. Odin Management, Inc.
762 So. 2d 657 (Louisiana Court of Appeal, 2000)
Marshall v. Sam's Wholesale Warehouse, Inc.
626 So. 2d 844 (Louisiana Court of Appeal, 1993)
Braud v. Great Atlantic & Pacific Tea Co., Inc.
618 So. 2d 1069 (Louisiana Court of Appeal, 1993)
Thumfart v. Lombard
613 So. 2d 286 (Louisiana Court of Appeal, 1993)
Pitre v. Louisiana Tech University
596 So. 2d 1324 (Louisiana Court of Appeal, 1992)
Simmons v. City of Monroe
588 So. 2d 1357 (Louisiana Court of Appeal, 1991)
Hall v. Petro of Texas, Inc.
580 So. 2d 420 (Louisiana Court of Appeal, 1991)
Fuller v. Wal-Mart Stores, Inc.
577 So. 2d 792 (Louisiana Court of Appeal, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
535 So. 2d 800, 1988 La. App. LEXIS 1739, 1988 WL 85608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickson-v-wal-mart-stores-inc-lactapp-1988.