Edmond v. Market Basket Stores, Inc.

479 So. 2d 1020, 1985 La. App. LEXIS 10432
CourtLouisiana Court of Appeal
DecidedDecember 11, 1985
Docket84-944
StatusPublished
Cited by5 cases

This text of 479 So. 2d 1020 (Edmond v. Market Basket 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
Edmond v. Market Basket Stores, Inc., 479 So. 2d 1020, 1985 La. App. LEXIS 10432 (La. Ct. App. 1985).

Opinion

479 So.2d 1020 (1985)

Leon EDMOND, et ux., Plaintiffs-Appellees,
v.
MARKET BASKET STORES, INC., et al., Defendants-Appellants.

No. 84-944.

Court of Appeal of Louisiana, Third Circuit.

December 11, 1985.

*1021 Woodley Barnett, Cox, Williams, Fenet & Palmer, Clayton Davis, Lake Charles, for defendants-appellants.

Payton R. Covington, Lake Charles, for plaintiffs-appellees.

Before GUIDRY, DOUCET and LABORDE, JJ.

GUIDRY, Judge.

Plaintiff, Mary Edmond, sustained personal injuries when she slipped on a strawberry and fell to her knees while shopping in defendant's grocery store. Mary and her husband, Leon Edmond, brought suit against Market Basket Stores, Inc. and its liability insurer, Cherokee Insurance Company. The trial court rendered judgment in favor of plaintiff for past medical expenses and $23,000.00 in general damages. Defendants suspensively appeal that judgment.

Defendants present the following specifications of error:

1. The trial court erred in assessing any liability against Market Basket Stores, Inc.;
2. The trial court erred in failing to find Mary Edmond contributorily negligent; and,
3. The trial court's award of $23,000.00 in general damages was excessive.

FACTS

On May 12, 1982, Mary and Leon Edmond went into Market Basket Store # 19 on Oak Park Boulevard in Lake Charles for the sole purpose of purchasing some onions. Mary walked straight towards the produce section of the store, with her husband following behind her. Before reaching the onions, Mary slipped on a strawberry and fell to the floor, landing on her knees.[1]

As a result of the fall, Mary allegedly sustained injury to both of her knees. At the time of the mishap, she complained of these injuries to the head of the produce department and to the store manager. Mary testified that she went to the hospital that afternoon to have her knees x-rayed because of the pain she was experiencing. There is no record from the hospital of such x-rays. Mary stated that because her granddaughter worked at the hospital she was not billed for the x-rays.

In August of 1982, Mary sustained additional injuries as a result of her injured knees. As she was stepping down from a street curb, her left knee gave out causing her to fall to the ground. As a result of this fall, she fractured the fifth metatarsal bone of her right foot. Following this injury, Mary remained off of her feet for three weeks and walked on crutches for an additional four weeks. She also developed a ganglion on her right ankle.

LIABILITY

Appellants claim that the trial court erred in finding Market Basket liable in the instant case, or alternatively, in failing to *1022 find Mary Edmond contributorily negligent.

In his written reasons for judgment dated June 15, 1984, the trial judge relied on the standard of care required of storekeepers enunciated in Kavlich v. Kramer, 315 So.2d 282 (La.1975). In Kavlich, our Supreme Court set forth the duty of a storekeeper as follows:

"A storekeeper owes an affirmative duty to those who use his premises to exercise reasonable care to keep his aisles, passageways and floors in a safe condition. Calamari v. Winn Dixie of Louisiana, Inc., 300 So.2d 653 (La.App. 4th Cir.1974); Tripkovich v. Winn-Dixie Louisiana, Inc., 284 So.2d 80 (La.App. 4th Cir.1973); Bartell v. Serio, 180 So. 460 (La.App.Orl.Cir.1938). This duty includes a reasonable effort to keep objects off of the floor which might give rise to a slip and fall. Through numerous cases Louisiana courts have reviewed occasions when fluids, pieces of fruit and vegetable, and other similar debris have caused a customer to slip, fall and be injured. See, e.g., McCauley v. Nicholas, 297 So.2d 914 (La.App. 1st Cir.1974); Barker v. Great Atlantic & Pacific Tea Co., 230 So.2d 925 (La.App. 1st Cir.1970); Frederic v. Winn-Dixie Louisiana, Inc., 227 So.2d 387 (La.App. 4th Cir.1969)."

The Supreme Court elaborated on this duty in Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976), as follows:

"The circumstances that determine the reasonableness of protective measures include the type and volume of merchandise, the type of display, the floor space utilized for customer service, the nature of customer service, and the volume of business. As we recently noted, the self-service grocery system requires customers to focus their attention on the shelves and to handle merchandise. The system increases the risk of harm from objects dropped on the floor by customers and, correspondingly, the duty to minimize the risk by frequent inspections and cleanups. See Kavlich v. Kramer, supra; Prosser, Law of Torts, § 56 p. 349 (4th ed.1971)."

Once an injured store patron establishes that he encountered a foreign substance on the floor of the store which caused him to slip and fall, the burden of proof then shifts to the storekeeper to go forward with the evidence to exculpate itself from the presumption that it was negligent. Kavlich v. Kramer, supra.

In the instant case, the trial court found that plaintiff clearly established that there were strawberries on the floor of the Market Basket in the produce section; she did not see the strawberries prior to her fall; and, when she stepped on the strawberries, she slipped, fell and sustained injury. We find that the record clearly supports this finding. The trial court next concluded that Market Basket Store # 19 did not succeed in exculpating itself from negligence. We likewise find this conclusion supported by the record.

The record reflects that less than five minutes prior to plaintiff's fall, a pint of strawberries was spilled on the floor of the produce section. Christian Martin, an employee of Market Basket, testified that he cleaned up the spilled strawberries. He stated that, "...and as far as I know, I got every one of them I could find." He testified that he inspected the area after the clean-up and that there were no berries or moisture remaining on the floor. The evidence also established that company policy requires the aisles to be frequently checked for obstructions or hazardous materials on the floor by Market Basket employees. Martin testified that he usually checks the aisles in the produce department about four times an hour.

George Daigle, the produce department head at Market Basket, testified that he was in the produce department at the time of the accident. He claims that he is in the habit of looking for debris on the floor in his department and had not noticed anything on the floor just prior to the accident. He did admit that after plaintiff's fall he found a mashed strawberry.

*1023 The trial judge apparently determined that the prior strawberry spill was not adequately cleaned up resulting in at least one strawberry being left on the floor, posing a hazard to customers. We find this inference to be reasonable. We conclude, as did the trial court, that defendant's employee was negligent in failing to remove all of the spilled strawberries from the store's floor. Thus, defendant did not exculpate itself from the presumption that its negligence was a cause in fact of plaintiff's injuries.

Appellants next contend that plaintiff was contributorily negligent in not watching where she was walking.

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Bluebook (online)
479 So. 2d 1020, 1985 La. App. LEXIS 10432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edmond-v-market-basket-stores-inc-lactapp-1985.