Doiron v. Wal-Mart Stores, Inc.

672 So. 2d 249, 95 La.App. 1 Cir. 1705, 1996 La. App. LEXIS 788, 1996 WL 155277
CourtLouisiana Court of Appeal
DecidedApril 4, 1996
DocketNo. 95 CA 1705
StatusPublished
Cited by2 cases

This text of 672 So. 2d 249 (Doiron 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
Doiron v. Wal-Mart Stores, Inc., 672 So. 2d 249, 95 La.App. 1 Cir. 1705, 1996 La. App. LEXIS 788, 1996 WL 155277 (La. Ct. App. 1996).

Opinions

I2FOGG, Judge.

Dedra Doiron brought this personal injury action against Wal-Mart Stores, Inc., for damages sustained in a slip and fall accident which occurred on October 5,1992. The trial judge ruled in favor of Ms. Doiron; Wal-Mart appeals.

[251]*251Dedra Doiron and her sister-in-law, Mitzie Doiron, went to Wal-Mart on October 5,1992 to buy personal, household and Halloween items. Upon entering the store, the sisters-in-law separated to shop on their own. Mit-zie Doiron briefly visited the Halloween section, but left quickly to go to another part of the store. Shortly thereafter, the appellee made her way to the Halloween section. Once there, she asked a Wal-Mart employee where to find a particular kind of candy and the costumes. The Wal-Mart employee showed her both items and, then, remained on that aisle to straighten candy on a shelf. The aisle where the costumes were stored was being decorated for the Halloween holiday by another Wal-Mart employee who was standing on a ladder hanging streamers.

As the appellee was looking at the costumes, she stepped on a costume that was hanging on the floor, slipped and fell to the floor. Although no one saw her fall, two employees saw her on the floor immediately after the fall. The store manager was paged to the scene. He called 911 and the appellee was taken to the hospital by ambulance where she was treated and released. Shortly after the accident, the manager took pictures of the scene. Subsequently, Ms. Doiron was treated by several doctors for the injury and underwent a laminectomy for a disc herniation at C-5 and C-6:

The trial court rendered judgment in favor of Ms. Doiron; Wal-Mart appeals, contending the trial court erred in determining that it had constructive notice of the hazardous condition under LSA-R.S. 9:2800.6.

The accident in this case occurred on October 5, 1992. Thus, the applicable burden of proof for a plaintiff in a slip and fall case is set forth in LSA-R.S. 9:2800.6, as amended by 1990 La Acts RNo. 1025, Sec. 1, effective September 1, 1990. The statute provides as follows:

§ 2800.6. Burden of proof in claims against merchants
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 negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, and in addition to all other elements of his cause of action, that:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and
(3) The merchant failed to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.
(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322 or 2695.

After the enactment of the above statute, floor debris does not create a presumption of negligence. However, a patron in a self-service store reasonably assumes that the aisles are clear for passage and focuses on the displayed merchandise, not the pathway. Perez v. Wal-Mart Stores, 608 So.2d 1006 (La.1992).

In the instant case, the Department Manager, Earthy Jackson, testified that on the day of the accident it was her job to do the zoning in the seasonal aisle. That is, she was responsible for checking the aisles and counters for any foreign objects; if something was out of place, it was her job to see to it that it was returned to its proper location. Jackson testified that at 3:45 |4p.m., the [252]*252approximate time of the accident, she had just finished zoning the aisle that housed the costumes and that none of the costumes were on the floor. However, she admitted that if an adult costume were hung on the children’s costume rack it would be too long and could hang onto the floor.

Lawrence Armstead, a stockman for Wal-Mart, also testified. On the day of the accident, he completed safety sweeps of the store at 11:00 a.m. and 2:00 p.m. He testified that at that time no costumes were on the floor. At the time of the accident, he was hanging streamers on the costume aisle. He stated that for the thirty minute period prior to the accident he did not notice any Wal-Mart employees on that aisle. When questioned about the pictures taken by the store manager right after the accident, Armstead testified that they accurately reflected the scene. Those pictures clearly show long costumes hanging on the children’s costume rack and spilling onto the floor.

The store manager, David Spence, Sr., testified that he went to the scene immediately after the accident. After he assisted Ms. Doiron and she was taken to the hospital, he took pictures and completed the accident report. The pictures show costumes hanging onto the floor and he testified that the pictures were correct. Further, the accident report named Halloween costumes as the product involved in the accident. He also testified that when he walked to the scene of the accident, the area was cluttered with costumes.

Another Wal-Mart employee, Elizabeth Domingue, testified that Ms. Doiron asked her where a certain type of Halloween candy was located. Once she showed her where it was, Ms. Doiron asked where the costumes were. Domingue then took Ms. Doiron to the costumes and stayed on that aisle. She turned to straighten some candy on the shelf and when she turned back around she saw Ms. Doiron on the floor. Mitzie Doiron testified that when she went to the costume aisle she noticed the costumes on the floor. Thomas Allen, a customer in the store, testified that he spoke to the appellee right after the accident and she said she slipped on costumes.

IsFinally, Dedra Doiron testified that once she found the candy she was looking for she went to look at the costumes. As she reached to pick one of the children’s costumes off the rack, her boot hit one of the costumes that was hanging on the floor and she flew back and jarred herself. She did not notice the costumes hanging onto the floor before she fell. She reviewed the photographs in evidence and stated they accurately reflected the scene.

Citing the testimony of the Wal-Mart employees, Wal-Mart argues it did not have constructive notice of the condition and did not fail to exercise reasonable care. The appellant then states the only logical inference is that the plaintiff created the condition which caused her own mishap.

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Bluebook (online)
672 So. 2d 249, 95 La.App. 1 Cir. 1705, 1996 La. App. LEXIS 788, 1996 WL 155277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doiron-v-wal-mart-stores-inc-lactapp-1996.