Guthrie v. Winn-Dixie Louisiana

238 So. 2d 390, 1970 La. App. LEXIS 5102
CourtLouisiana Court of Appeal
DecidedJune 25, 1970
DocketNo. 3109
StatusPublished

This text of 238 So. 2d 390 (Guthrie v. Winn-Dixie Louisiana) 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
Guthrie v. Winn-Dixie Louisiana, 238 So. 2d 390, 1970 La. App. LEXIS 5102 (La. Ct. App. 1970).

Opinions

FRUGÉ, Judge.

This is an action to recover damages for personal injuries sustained by the plaintiff, Marcelle Odet Guthrie, and for community expenses incurred by her husband, John C. Guthrie, as the result of an alleged slip and fall of Mrs. Guthrie while shopping in defendant, Winn-Dixie’s supermarket in Jennings, Louisiana, on October 5, 1968. The trial court awarded Mrs. Guthrie $4,-000.00 for personal injuries, and Mr. [391]*391Guthrie $1,051.50 for special damages incurred by the community. The defendants have appealed suspensively from the trial court’s judgment.

The evidence reflects that sometime between 8:00 and 8:30 A.M. on Saturday, October 5, 1968, Mrs. Guthrie and her daughter, Mrs. Linda Tracey, entered the defendant’s store to shop for groceries. Mrs. Guthrie and her daughter had selected the items that they wished to purchase and were in the process of being checked out when Mrs. Tracey requested her mother to get a particular type of soap for Mrs. Tracey to include in her purchases. While on the way to the soap section Mrs. Guthrie allegedly slipped on a wet spot on the floor and fell.

Defendants contend that the trial court erred in finding the defendants “guilty of negligence which was a proximate cause of the plaintiff’s injury.”

In the recent case of Hay v. Sears, Roebuck & Company, 224 So.2d 496, 498 (La.App. 3rd Cir. 1969), this Court stated the standard of care that a business establishment owes its customers as follows:

“The law applicable to the facts and circumstances presented here is well established. A proprietor owes a duty to his customers to use ordinary care to keep his aisles, passageways and floors in a reasonably safe condition. Although the law imposes a duty of reasonable care by the proprietor toward his customers, the storekeeper is not the insurer of their safety while on his premises. In order to impose liability on a storekeeper or proprietor the plaintiff must prove by a clear preponderance of evidence that a dangerous condition, which caused injury to the plaintiff, was:
“(1) created or maintained by the storekeeper or one of his employees; or
“(2) if not created by the storekeeper or one of his employees, that (a) the storekeeper or one of his employees had actual knowledge of the dangerous condition, or (b) the dangerous condition had remained long enough for the storekeeper to have constructive knowledge of the conditipn.
“Lofton v. Travelers Insurance Company, 208 So.2d 739 (La.App. 3rd Cir. 1968); Jones v. W. T. Grant Company, 187 So.2d 470 (La.App. 3 Cir. 1966); Peters v. Great Atlantic & Pacific Tea Company, 72 So.2d 562 (La.App. 2nd Cir. 1954.)”

In the instant case the plaintiffs contend that a dangerous condition created by one of Winn-Dixie’s employees caused Mrs. Guthrie’s accident. The testimony of Joel Richert, an employee of Winn-Dixie at the time of the accident, shows that he mopped the floor of the Winn-Dixie store sometime between 7:00 and 8:00 A.M. on the morning of the accident. He only mopped selected areas, including the spot where Mrs. Guthrie supposedly fell, rather than the entire store, as reflected by his testimony at page 112 of the record:

“Q. Who was going to help you in the mopping operations?

“A. I’m the only one that mopped.

“Q. In other words, it was your responsibility to mop all of the floors in that entire building ?
“A. On Saturdays, I only got certain places because 1 there a little later, so I’d only mop certain places on Saturday.
“Q. Now what places were you supposed to mop on Saturdays? That particular Saturday?
“A. The meat aisle, the produce aisle, the soap aisle and the front of the store by the check out stands.”

The above testimony indicates that Rich-ert was ordinarily rushed to get his mopping done on Saturday morning before the store opened. Although he could not recall the specific morning in question, he was reasonably sure that he started the mop[392]*392ping operation by 7:10 A.M., and that it took him about 40 minutes to complete the job (Tr. 112).

The evidence shows that Mrs. Guthrie and her daughter entered the store just after it opened, and that there were very few customers in the store at the time of the accident. Therefore, it is most probable that any water on the floor was placed there by the mop-boy rather than a third party.

Mrs. Guthrie was the only witness to testify that she actually fell although both she and her daughter testified that her dress was wet when she came back to the check out stand. The cashier, Mrs. Linda Tra-han, did not notice that Mrs. Guthrie’s dress was wet although Mrs. Guthrie, looked embarrassed and was holding her head when she returned to the check out stand, and she informed Mrs. Trahan that she had fallen in the soap aisle. Mrs. Guthrie and her daughter then left the store, and Mrs. Trahan reported the accident to the store manager, Mr. Earl Do-mingue, about 30 minutes later. Mr. Do-mingue inspected the area where Mrs. Guthrie was supposed to have fallen, but could find no evidence of water or any other substance on the floor. Since his inspection took place approximately thirty minutes after the fall occurred, it does not refute the direct testimony that there was water on the floor earlier.

The plaintiff was inconsistent in her testimony as to the exact spot where she fell, but the trial court was evidently impressed with her overall testimony, whereas it expressed misgivings about Mr. Domingue’s testimony. Mrs. Guthrie had testified that while lying on her back immediately after the fall, she saw Mr. Domingue looking at her from the open office. Mr. Domingue denied that he saw her. But, from the spot where she fell her view of the office, where Mr. Domingue would have been, was just as she described it in her testimony.

We conclude that the trial court’s factual determination that the water was placed on the floor by Winn-Dixie’s employee, Joel Richert, and that Mrs. Guthrie slipped on this water was not manifestly erroneous in view of the circumstances and facts indicated above.

The defendants also contend that the trial court’s award of $4,000.00 for personal injuries was excessive. It is well settled that the trial court has great discretion in awarding general damages. Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967); Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963). There is evidence that Litrs. Guthrie experienced considerable pain and discomfort while being treated over an extended period of time and was still experiencing discomfort at the time of the trial, some 13 months after the accident. Dr. Louis E. Shirley’s testimony beginning at page 195 of the record reflects Mrs. Guthrie’s general condition :

“A. * * * I saw her on October 7, 1968.
“Q. And just exactly what history did you elicit from her and what treatment did you give her at that time, sir ?
“A. At the time I saw her, she gave me a history that she had slipped while at Winn-Dixie and she fell hurting her right side and her right hip and lower back and face. On examination, I found that she had some bruises on the right shoulder and the hip was rather tender, and she had a spot on her right temple, with some bruises on the right temple.

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Related

Peters v. Great Atlantic & Pacific Tea Co.
72 So. 2d 562 (Louisiana Court of Appeal, 1954)
Hay v. SEARS ROEBUCK & COMPANY
224 So. 2d 496 (Louisiana Court of Appeal, 1969)
Gaspard v. LeMaire
158 So. 2d 149 (Supreme Court of Louisiana, 1963)
Lomenick v. Schoeffler
200 So. 2d 127 (Supreme Court of Louisiana, 1967)
Lofton v. Travelers Insurance Company
208 So. 2d 739 (Louisiana Court of Appeal, 1968)
Jones v. WT Grant Company
187 So. 2d 470 (Louisiana Court of Appeal, 1966)

Cite This Page — Counsel Stack

Bluebook (online)
238 So. 2d 390, 1970 La. App. LEXIS 5102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guthrie-v-winn-dixie-louisiana-lactapp-1970.