Jackson v. Brookshire Grocery Co.

11 So. 3d 741, 9 La.App. 3 Cir. 147, 2009 La. App. LEXIS 1055, 2009 WL 1531925
CourtLouisiana Court of Appeal
DecidedJune 3, 2009
DocketNo. 09-147
StatusPublished

This text of 11 So. 3d 741 (Jackson 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
Jackson v. Brookshire Grocery Co., 11 So. 3d 741, 9 La.App. 3 Cir. 147, 2009 La. App. LEXIS 1055, 2009 WL 1531925 (La. Ct. App. 2009).

Opinion

PICKETT, J.

11The defendant, Brookshire Grocery Company, d/b/a/ Super One Foods, appeals a judgment of the trial court awarding the plaintiff, Kenneth Wayne Jackson, $5,000.00 in general damages and $1,282.67 in medicals, plus interest and costs, for injuries he sustained when several cases of food fell on him as he shopped in the store. We affirm the judgment of the trial court.

FACTS

This suit arises as the result of an injury sustained by the plaintiff, Kenneth Wayne Jackson, on March 9, 2007, when several cases of merchandise fell on him as he shopped at Super One Foods in Alexandria, Louisiana. The products in this section of Super One are displayed for purchase similar to products stored in a warehouse, in case lots. Cases are stacked atop one another with the faces cut off, revealing the contents. Some merchandise is displayed in cases at floor level, while additional merchandise is displayed in cases on shelving approximately six feet above the ground.

[743]*743The plaintiff was reaching for an item approximately six feet above floor level, in a case with the front cut out. As the plaintiff attempted retrieve a box of “chicken helper” from that case, several other cases fell on him, injuring his left arm. The impact caused a “tennis-ball” sized hematoma and a lump in his left forearm.

The plaintiff attempted to continue with his shopping, but shortly after the accident a lump developed in his arm, accompanied by intense pain. Because of a pre-existing heart condition, the plaintiff became concerned and summoned an ambulance to transport him to Christus St. Francis Cabrini Hospital. The plaintiff was diagnosed with a contusion of the left forearm; he was treated and released with ^Instructions to follow-up with his primary care physician, if needed. Because he was still experiencing pain about one week later, he consulted his family physician, Dr. Alejandro Perez. Dr. Perez noted a one-inch in diameter knot surrounded by bluish-green discoloration on the ulnar aspect of the left forearm. The doctor noted that the area was not warm to the touch, indicating the absence of an infection, and concluded that the arm demonstrated what he described as the normal “process after the trauma.”

On appeal the defendant argues that the plaintiff failed to prove that an unreasonably dangerous condition caused the accident, and that the general damage award was excessive for what was “at most, a three (3) week injury.”

LAW AND DISCUSSION

Both parties, in their argument before the trial court, and the trial court in its reasons for judgment, cite Davis v. Wal-Mart Stores, Inc., 00-445 (La.11/28/00), 774 So.2d 84, to support their positions. In Davis, 774 So.2d at 89-90, our supreme court set out the law applicable to “falling merchandise” cases:

The applicable statute as to liability in this case is La. R.S. 9:2800.6 which governs negligence claims brought against a merchant, such as Sam’s. La. R.S. 9:2800.6 reads, in 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.
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In a “falling merchandise” case under R.S. 9:2800.6(A), as in the present case, the standard is that the merchant must use reasonable care to keep its aisles, passageways and floors in a reasonably safe condition and free of hazards which may cause injury. Further, a plaintiff who is injured by falling merchandise must prove, even by circumstantial evidence, that a premise hazard existed. [Smith v. Toys “R” Us, Inc., et al., 98-2085__|3(La.11/30/99), 754 So.2d 209.] Once a plaintiff proves a prima facie premise hazard, the defendant has the burden to exculpate itself from fault by showing that it used reasonable care to avoid such hazards by means such as periodic clean up and inspection procedures. Id.
To prevail in a falling merchandise case, the customer must demonstrate that (1) he or she did not cause the merchandise to fall, (2) that another customer in the aisle at that moment did not cause the merchandise to fall, and (3) that the merchant’s negligence was the cause of the accident: the customer must show that either a store employee or another customer placed the mer-[744]*744ehandise in an unsafe position on the shelf or otherwise caused the merchandise to be in such a precarious position that eventually, it does fall. Only when the customer has negated the first two possibilities and demonstrated the last will he or she have proved the existence of an “unreasonably dangerous” condition on the merchant’s premises. Smith v. Toys “R” Us, Inc., et al., supra.
Under Smith, supra, though evidence of adequate inspection and clean up procedures may yet be part of the merchant’s burden to disprove negligence, evidence of the opposite is certainly relevant as part of the customer’s burden to prove negligence: plaintiff customer will carry his or her burden if he or she can make a prima facie showing that inadequate or neglected inspection and clean up procedures left merchandise in such an unstable or precarious position that it falls from its stacked or displayed position to cause injuries to him or her. Id., at p. 5, 754 So.2d at 212.

In its reason for judgment the trial court stated:

The ultimate fact that must be decided by the court is whether the plaintiff caused the item to fall. If the court rules that any time a customer reaches for a product and another product falls, the customer caused the accident, it would seem to remove any inquiry as to causation.

We agree.

In this case, chicken helper and other items were stacked from ground level to the bottom of a shelf which was established to be six feet above the floor. The plaintiff selected a box from the first earton stacked on the shelf. When he pulled the box of chicken helper from the case on the shelf, several cases of chicken helper stacked above the bottom case fell down striking him. As the plaintiff reached for the |4box he had selected, the defendant’s produce manager, Laverne Clark, and another employee, identified only as Mr. Battistelli, were working some distance down the isle. Mr. Battistelli observed the plaintiffs actions and shouted for the plaintiff to “stop” or “look out.” Before the plaintiff could respond, the higher case had already fallen.

In a falling merchandise case, as in any other case involving factual determinations by the trial court “[t]he issue for the reviewing court is not whether the trier of fact was wrong, but whether the factfin-der’s conclusions were reasonable under the evidence presented.” Smith, 754 So.2d at 214. Under the facts presented in this case, we find the fact-finder’s conclusions were reasonable. It is obvious that the plaintiff had no idea that several cases of merchandise would come tumbling down when he made his selection. Also, it appears that Mr. Battistelli recognized that a dangerous condition existed when he shouted his warning, i.e., that the cases of chicken helper had been placed in an unsafe position on the shelf or in such a precarious position that they eventually fell.

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Bluebook (online)
11 So. 3d 741, 9 La.App. 3 Cir. 147, 2009 La. App. LEXIS 1055, 2009 WL 1531925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-brookshire-grocery-co-lactapp-2009.