Johnson v. Wal-Mart Stores, Inc.

616 So. 2d 817, 1993 WL 96636
CourtLouisiana Court of Appeal
DecidedMarch 31, 1993
Docket24646-CA
StatusPublished
Cited by21 cases

This text of 616 So. 2d 817 (Johnson 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
Johnson v. Wal-Mart Stores, Inc., 616 So. 2d 817, 1993 WL 96636 (La. Ct. App. 1993).

Opinion

616 So.2d 817 (1993)

Clairgein JOHNSON, Plaintiff-Appellee,
v.
WAL-MART STORES, INC. and National Union Fire Insurance Company, Defendants-Appellants.

No. 24646-CA.

Court of Appeal of Louisiana, Second Circuit.

March 31, 1993.

*819 Carl Rice and Associates by William F. Kendig, Shreveport, for plaintiff-appellee.

Mayer, Smith & Roberts by Vicki C. Warner, Shreveport, for defendants-appellants.

Before NORRIS, LINDSAY and VICTORY, JJ.

LINDSAY, Judge.

Wal-Mart Stores, Inc. and National Union Fire Insurance Company, the defendants in this slip and fall case, appeal the trial court judgment which held them liable for the injuries sustained by the plaintiff, Clairgein Johnson, and awarded damages of $22,228.67 in her favor. For the reasons set forth below, we amend the judgment and, as amended, affirm.

FACTS

On Sunday, December 3, 1989, the plaintiff went shopping at the Wal-Mart store on Jewella Road in Shreveport. She was accompanied by her husband, Eziekel Johnson, and one of their grandchildren. Mr. Johnson, who was looking for a toolbelt, pushed a shopping buggy down an aisle in the automotive department while the plaintiff followed behind him. Suddenly, the plaintiff slipped on a puddle of liquid and fell on her right side. (Although the testimony differed on whether the liquid was clear or white, the witnesses agreed that the substance was difficult to see on the white floor.)

Mr. Johnson turned when he heard the plaintiff cry out. He and Don Jones, a Wal-Mart sales clerk working in the automotive department, helped the plaintiff to her feet. Mr. Jones observed a plastic bottle of "Son of a Gun" on the floor about a foot and a half from the counter. "Son of a Gun" is an oil-based liquid used for cleaning vinyl or leather upholstery. While the bottle lid was closed, it was not screwed on tightly.

The assistant manager, Bernard Mack, was promptly informed of the accident. When he arrived at the site of the fall, he personally cleaned the "Son of a Gun" liquid from the plaintiff's shoes with a paper towel. Then the plaintiff and her husband went with Mr. Mack to his office where he inquired into the circumstances of the plaintiff's fall. Since Mr. Mack was unable to locate any of the store's accident report forms, he took notes on a yellow note pad.

After their conversation with Mr. Mack, the Johnsons paid for Mr. Johnson's toolbelt and left the store. After taking their grandchild home, they went to the emergency room at Schumpert Medical Center, where the plaintiff sought treatment for injuries to her right side. X-rays were taken, and the doctor prescribed pain medication for her discomfort. She was also instructed to take hot, soaking baths.

The following day, December 4, 1989, Mr. Johnson returned to the store to obtain a copy of the accident report. Upon examination of this document, he determined that *820 some of the information filled in by Mr. Mack was wrong, i.e., the time and date of the incident, and the type of shoes worn by the plaintiff. When he drew these mistakes to the assistant manager's attention, Mr. Mack corrected them and initialed the changes.

Due to the injuries she sustained in the fall, the plaintiff was unable to return to her job as a cook for the Caddo Parish School Board. She was off work for one week following the accident. During this week, she sought additional medical treatment from her family physician, Dr. James May.

In January, 1990, the plaintiff also consulted Dr. Harold Bicknell, an orthopedist. She returned to see him again in October, 1990. At the time of her third appointment on November 6, 1990, Dr. Bicknell referred her to his son, Dr. Eric Bicknell, for an EMG nerve conduction test. This test was performed on November 13, 1990. Her last appointment with Dr. Harold Bicknell was in April, 1991.

On December 2, 1990, the plaintiff filed suit against Wal-Mart and its insurer. A bench trial was held on March 24 and 25, 1992.

At trial, the plaintiff and her husband testified that she slipped and fell because of a puddle of slippery liquid on the store floor. The defendants then sought to exculpate themselves from liability by presenting the testimony of several Wal-Mart employees. They included Mr. Jones; Mr. Mack; Aubrey Metcalf, the utility person or maintenance man who was on duty the day of the accident; and William Tidwell, an assistant manager at the Jewella store.

On April 7, 1992, the trial court ruled in favor of the plaintiff and against the defendants. In its reasons for judgment, the trial court found that the plaintiff's fall was caused by a foreign substance on the floor, i.e., the "Son of a Gun" liquid cleaner. Having found that the plaintiff's fall was caused by a hazardous condition on the premises, the court then considered whether the merchant had successfully exculpated itself from liability by showing that it acted in a reasonably prudent manner to keep the premises free of such hazardous conditions.

The trial court held that Wal-Mart's clean up procedures were not reasonable under the circumstances and that it had thus failed to exculpate itself from liability. No utility person was on duty at the time of the accident. Considering that the cleanup crew had not worked the night before, the size of the store and the large volume of sales that day, the court concluded that Wal-Mart's management had failed to provide an adequate number of utility personnel to work on a busy Christmas season weekend. The court was not impressed with the testimony of Don Jones that he walked down the aisle where the plaintiff fell only five minutes before the accident and that he saw nothing on the floor at that time.

The trial court further found no comparative fault on the part of the plaintiff and awarded general damages of $20,000 in her favor. It also awarded her medical expenses as special damages. A judgment in the amount of $22,228.67 was signed on April 7, 1992.

The defendants appealed. They assign as error the following: (1) the trial court erred in finding that Wal-Mart failed to exculpate itself from liability; and (2) the trial court erred by awarding excessive damages.

EXCULPATION FROM LIABILITY

Law

The initial burden of proof rested on the plaintiff to show that she was injured due to a hazardous condition on the store premises. Then the burden of proof shifted to the merchant/store owner to exculpate itself from liability in compliance with LSA-R.S. 9:2800.6.

Prior to its amendment in 1990, LSA-R.S. 9:2800.6 provided as follows:

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 *821 effort to keep the premises free of any hazardous condition which reasonably might give rise to damage.
B. In a suit for damages by a person who has suffered damages as the result of a hazardous condition while on the merchant's premises, the person must prove that the accident was caused by a hazardous condition. The burden of proof then shifts to the merchant to prove that he acted in a reasonably prudent manner in exercising the duty of care he owed to the person to keep the premises free of any hazardous conditions.
C.

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Bluebook (online)
616 So. 2d 817, 1993 WL 96636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-wal-mart-stores-inc-lactapp-1993.