Kedia v. Brookshire Grocery Co.

752 So. 2d 944, 1999 La. App. LEXIS 3538, 1999 WL 1256234
CourtLouisiana Court of Appeal
DecidedDecember 15, 1999
DocketNo. 32,324-CA
StatusPublished
Cited by3 cases

This text of 752 So. 2d 944 (Kedia 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
Kedia v. Brookshire Grocery Co., 752 So. 2d 944, 1999 La. App. LEXIS 3538, 1999 WL 1256234 (La. Ct. App. 1999).

Opinions

WILLIAMS, Judge.

In this slip and fall action, the defendants, Brookshires Grocery Company d/b/a Super One Foods and its insurer, Hartford Insurance Company, appeal the trial court’s judgment in favor of the plaintiff, Sushila Kedia1. The trial court awarded the plaintiff general damages, medical expenses and lost wages for injuries sustained after she slipped and fell while shopping in the defendant’s store. The trial court allocated 65% fault to the defendants and 85% fault to the plaintiff. For the following reasons, we amend the trial court’s judgment and affirm as amended.

FACTS

On January 18, 1993, at approximately 5:30 p.m., the plaintiffs, Ray and Sushila Kedia were shopping in Super One Foods grocery store located on Cypress Street in West Monroe, Louisiana. The plaintiffs were in the rear of the store, near the dairy section, when Sushila Kedia slipped on a wet “hot sheet”2 and fell. Ray Kedia was a short distance behind his wife, pushing a shopping cart and did not witness the accident. When he directed his attention toward his wife, she had already fallen to the floor.

Mark Walden, an assistant manager at Super One Foods, and Linda Norwood, a store patron, witnessed the accident. Walden and Ray Kedia helped plaintiff up from the floor. Walden then escorted the plaintiffs to the office where he completed an accident report. The accident report indicated that the plaintiff “stepped on a wet piece of paper that was on the floor and fell....”

The plaintiff, Sushila Kedia, testified that she was walking towards the dairy freezer to get some milk when she slipped and fell. She also testified that [ ?she did not know what caused her to fall, but after the fall, she noticed a piece of paper and a puddle of a white substance with traces of dirt. Linda Norwood testified that she went to assist the plaintiff after the accident and noticed a liquid substance that was milky and dirty on the floor in the area where the plaintiff fell.

Walden testified that it was the store’s standard procedure to have someone inspect the floors every two hours and document the inspection in the store’s log book. The store’s clean-up logbook reflected that the last floor inspection prior to the accident occurred at 1:44 p.m. The accident occurred at 5:35 p.m.

On the next day, the plaintiff was treated by Dr. Thomas Brantley, an urgent care physician. She complained of pain in her foot, ankle, back and shoulders as a result of the accident. On February 8, 1993, the plaintiff was treated by Dr. James Finley, an orthopaedic surgeon. At that time, she complained of neck pain that radiated into her shoulder. Dr. Finley diagnosed the plaintiff with a cervical sprain and no evidence of any disc pathology. Dr. Finley treated the plaintiff again on February 22, 1993. He noted that the plaintiff had improved; however, she had not totally recovered. He prescribed strengthening exercises to resolve her remaining problems.

After a bench trial, judgment was rendered in favor of the plaintiff, awarding $7,000 in general damages, $3,241.50 in medical expenses and $1,200 in lost wages. The trial court found the plaintiff 35% at fault in causing the accident and reduced [947]*947the amount of damages by that percentage. The trial court noted that the cause of the accident was the wet hot sheet in the aisle. The trial court concluded that Mark Walden and the utility clerks who assisted him in stocking the dairy cases had an unobstructed view of the area at the time of the accident. The defendants appeal the trial court’s judgment. In an answer to the appeal, the plaintiffs urge that Sushila Kedia was not at fault, and alternatively, that she was only 10% at fault.

IsDISCUSSION

The defendants argue that the trial court erred in finding that the plaintiff proved that the accident occurred as a result of a hazardous condition in the defendant’s store. They also argue that the trial court erred in finding that the defendant’s employees created the hazardous condition, and further, that the defendants had constructive notice of the condition.

LSA-R.S. 9:2800.6 governs a negligence action against a merchant for damages resulting from injuries sustained in a slip and fall. The statute, as revised in 1990 and applicable to the present case, provides:

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, and in addition to all other elements of his cause of action, that:
(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.
C.Definitions:
(1) “Constructive notice” means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

The defendants argue that the plaintiff failed to prove that the accident occurred as a result of a hazardous condition in the defendant’s store. However, witnesses, including Walden, the store’s assistant manager, testified that the plaintiff fell after slipping on a wet hot sheet on the floor in defendant’s store. |4Walden also testified that there was a small skid mark that appeared to be a result of the plaintiffs foot sliding on the paper. It is undisputed that the plaintiffs accident occurred when she slipped on the advertisement paper. However, the evidence of the record does not establish why the wet paper was on the floor.

Walden testified that the hot sheets were kept in an “ad box” in the front of the store and the customers were encouraged to carry the hot sheets throughout the store to use while shopping. Apparently, when the hot sheets were discarded by the customers, some of them were thrown or dropped to the floor. Walden testified that there was no store policy or procedure to ensure that the floors and aisles were safe and free of the discarded hot sheets.3 According to Walden, there [948]*948were garbage cans located in some areas throughout the store. However, he stated that he was not aware of the exact number of garbage cans located in the store or if a garbage can was located in the area where the accident occurred. He later admitted that he could only recall that a garbage can was located in the delicatessen area.

The trial court concluded that the hot sheet became wet after being taken out of the store in a cart by a customer. Because it had been raining on the day of the accident, the court further concluded that the cart was brought back into the store by a utility clerk who failed to remove the wet hot sheet from the cart.

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Cite This Page — Counsel Stack

Bluebook (online)
752 So. 2d 944, 1999 La. App. LEXIS 3538, 1999 WL 1256234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kedia-v-brookshire-grocery-co-lactapp-1999.