Ferlicca v. Brookshire Grocery Co.

175 So. 3d 469, 2015 La. App. LEXIS 1640, 2015 WL 5175024
CourtLouisiana Court of Appeal
DecidedSeptember 4, 2015
DocketNo. 50,000-CA
StatusPublished
Cited by5 cases

This text of 175 So. 3d 469 (Ferlicca v. Brookshire Grocery 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
Ferlicca v. Brookshire Grocery Co., 175 So. 3d 469, 2015 La. App. LEXIS 1640, 2015 WL 5175024 (La. Ct. App. 2015).

Opinion

STEWART, J.

|2In this slip and fall accident, the defendant, Brookshire Grocery Company, appeals a judgment rendered in favor of plaintiff, Donna Ferlicca, awarding her general damages in the amount of $21,000.00, and special damages in the amount of $4,921.12. It further allocated 90% fault to the defendant, and 10% to the plaintiff. Finding that the plaintiff failed to meet the burden of proof required by La. R.S. 9:2800.6, we reverse the trial court’s judgment, and dismiss her claim.

FACTS AND PROCEDURAL HISTORY

On December 16, 2012, the plaintiff went to the Brookshire Grocery Store, located on North 18th Street in Monroe, Louisiana, to purchase a cake. It was raining at the time. When she entered the store, she went directly to the bakery. Upon discovering that she did not have sufficient funds to purchase the cake, she left the store to get more money from her sister, who was waiting in the parking lot. When the plaintiff returned to the store’s entrance, she slipped and fell, fracturing her left arm.

On January 31, 2013, plaintiff filed a petition for damages against the defendant. After a bench trial, the trial court rendered judgment in favor of the plaintiff, awarding general damages in the amount of $21,000.00, and special damages in the amount of $4,921.12, on March 31, 2014. In an amended ruling, it allocated 90% fault to the defendant, and 10% to the plaintiff.1

The defendant filed the instant appeal.

LAW AND DISCUSSION

| oThe defendant argues that the trial court erred in failing to apply and/or misapplying jurisprudence governing slip and fall cases. Alternatively, it asserts that the trial court erroneously rendered judgment in the plaintiff’s favor because she failed to prove that an unreasonably dangerous condition existed prior to her accident. It argues that the presence of the “condition,” which included a waist-high, four-sided “Wet Floor” sign that the plaintiff admitted was “easily visible,” constituted an open and obvious condition for which it is not liable. Furthermore, it argues that the trial court erroneously allocated fault, when it found the plaintiff only 10% at fault, after she testified that she should have seen the ‘Wet Floor” sign.

A trial court’s finding of liability for damages caused by a slip and fall accident at the defendant’s place of business, as well as the presence of comparative fault, are factual determinations that will not be disturbed absent manifest error or unless clearly wrong. Turner v. Brookshire Grocery Co., 34,562 (La.App.2d Cir.4/4/01) 785 So.2d 161; Barton v. Wal-Mart Stores, 97-801 (La.App.3d Cir.12/10/97), 704 So.2d 361; Myles v. Brookshires Grocery Co., 29,100 (La.App.2d Cir.1/22/97), 687 So.2d 668.

La. R.S. 9:2800.6 governs merchant liability for slip or trip and fall cases, and places a heavy burden of proof on plaintiffs in claims against a merchant for damages [472]*472arising out of a fall on the premises. Therefore, in order- for the plaintiff to prevail in her negligence claim for the- injuries she | ¿suffered, she must satisfy the. burden of proof discussed in this statute, which provides ih pertinent part:

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, in addition to all other elements of this cause of action, all of the following:
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.
3. The merchant failed to exercise reasonable care. In determining care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone to prove failure to exercise reasonable care.

Failure to prove any of the requirements enumerated in. La. R.S.' 9:2800.6 will prove fatal to the plaintiffs case. Harrison v. Horseshoe Entertainment, 36,294 (La.App.2d Cir.8/14/02), 823 So.2d 1124; Richardson v. Louisiana,-1 Gaming, 10-262 (La.App. 5th Cir.12/14/10), 55 So.3d 893. The supreme court in White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081, held that in addition to proving each of the above three elements, a plaintiff ■ must “come forward with positive evidence showing the damage causing condition existed for some period of time and that such time was sufficient to place a merchant defendant on notice of its ^existence.” Turner, supra. This element is referred to as the “temporal” element. Absent some showing of the temporal element, there can be no inference of constructive knowledge. While there is no bright line time period, a plaintiff must show that the condition existed for “such a period of time.” Kennedy v. Wal-Mart Stores, Inc., 98-1939 (La.4/13/99), 733 So.2d 1188; Jones v. Brookshire Grocery, Co., 37,117 (La.App.2d Cir.5/14/03), 847 So.2d 43. The claimant must make a positive showing of the existence of the condition prior to the fall. A defendant merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall. White, supra.

Merchants are required to exercise reasonable care to protect those who enter the store, keep the premises safe from unreasonable risk of harm, and warn persons of known dangers. Jones, supra; Ward v. ITT Specialty Risk Services, Inc., 31,990 (La.App.2d Cir.6/16/99), 739 So.2d 251, writ denied, 99-2690 (La.11/24/99), 750 So.2d 987. The mere presence of a defect does not alone elevate that defect to the.level of an unreasonably dangerous condition. Milton v. E & M Oil Co., 45,-528 (La.App.2d Cir.9/22/10), 47 So.3d 1091.

Although the owner of a commercial establishment has an affirmative duty to keep the premises in a safe condition, he is not the insurer of the safety of his patrons. Turner, supra; Fuller v. Wal-Mart Stores, Inc., 577 So.2d 792 (La.App. [473]*4732d Cir.1991); Ward, supra. A store owner is not liable every time an accident happens. Turner, supra;. Hardman v. Kroger, Co., 34,250 (La.App.2d Cir.12/6/00), 775 So.2d 1093.

1 ^Defendants generally have no duty to protect against an open and obvious hazard; Dowdy v. City of Monroe, 46,693 (La.App. 2d Cir.11/2/11), 78 So.3d 791. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition- may not be unreasonably dangerous, and the defendant may owe no duty to the .plaintiff. Caserta v. Wal-Mart Stores, Inc., 2012-0853 (La.6/22/12), 90 So.3d 1042.

To require a merchant to keep the entrance/exit areas completely dry during rainy weather, or to hold the merchant responsible for every slick place due to tracked in water would, in effect, make him an insurer of his customer’s safety.

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Bluebook (online)
175 So. 3d 469, 2015 La. App. LEXIS 1640, 2015 WL 5175024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferlicca-v-brookshire-grocery-co-lactapp-2015.