King v. Toys "R" US-Delaware, Inc.

806 So. 2d 969, 2002 La. App. LEXIS 70, 2002 WL 84266
CourtLouisiana Court of Appeal
DecidedJanuary 23, 2002
DocketNo. 35,461-CA
StatusPublished
Cited by2 cases

This text of 806 So. 2d 969 (King v. Toys "R" US-Delaware, 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
King v. Toys "R" US-Delaware, Inc., 806 So. 2d 969, 2002 La. App. LEXIS 70, 2002 WL 84266 (La. Ct. App. 2002).

Opinions

_JjWILLIAMS, Judge.

The plaintiffs, Teddy Wayne King and Julie Warden King, on behalf of their child, Katelyn King, appeal a trial court judgment in favor of the defendant, Toys “R” Us-Delaware, Inc. The trial court dismissed plaintiffs’ claims, finding that plaintiffs failed to present evidence to establish either that a condition on the premises presented an unreasonable risk of harm or that the defendant did not exercise reasonable care. For the following reasons, we reverse, render and remand.

FACTS

On December 20, 1996, Julie King went to a Toys “R” Us store located in Shreveport, accompanied by her mother, Donnys Warden, and her five-year-old daughter, Katelyn. After entering the store at approximately 11:30 a.m., Julie King proceeded to a different part of the premises, separating from Mrs. Warden and Katelyn, who continued browsing on their own. As Warden and Katelyn walked around a corner into one of the aisles, an 18-pound easel fell from a shelf, striking Katelyn on the head and knocking her to the floor. At trial, Warden testified that the easel fell without warning and without anyone moving the item. A store employee testified that he had seen Katelyn touching the shelf just before the easel fell.

The plaintiffs, Teddy and Julie King on behalf of Katelyn King, filed a petition for damages against the defendant, Toys “R” Us-Delaware, Inc. After a trial, the district court issued written reasons for judgment, finding that the plaintiffs had failed to satisfy LSA-R.S. 9:2800.6, which required that they produce evidence to establish that the defendant did not exercise 1 ¡¡reasonable care to keep the premises in a reasonably safe condition. The trial court rendered judgment dismissing plaintiffs’ claims. The plaintiffs appeal the judgment.

DISCUSSION

The plaintiffs contend the trial court erred in finding that the evidence presented did not prove either that a hazard existed or that the defendant failed to exercise reasonable care. Plaintiffs argue that the evidence established a prima facie premises hazard and that defendant is liable for the child’s injuries.

A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles and passageways in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might cause damage. LSA-R.S. 9:2800.6. A plaintiff who is injured by falling merchandise must prove that a premise hazard existed and may do so with circumstantial evidence. Once the 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 inspection procedures. Stepherson v. Wal-Mart Stores Inc., 34,547 (La.App.2d Cir.4/4/01), 785 So.2d 950.

To prove the existence of a premise hazard, a plaintiff in a “falling merchandise” case must demonstrate that: (1) she did not cause the merchandise to fall; (2) another customer in the aisle at that moment did not cause the merchandise to fall; and (3) the merchant’s negligence was the | ¡¡cause of the accident, i.e., that either a store employee or another shopper placed the merchandise in an unsafe position on the shelf. Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84; Stepherson, supra.

[972]*972A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Development, 617 So.2d 880 (La.1993). The task of a reviewing court is to assess whether the fact finder’s resolution of conflicting evidence was reasonable in light of the record as a whole. Fowler v. Wal-Mart Stores, Inc., 30,843 (La.App.2d Cir.8/19/98), 716 So.2d 511.

In the present case, Warden testified that when she and her granddaughter entered the aisle, there were not any other customers or store employees in the immediate vicinity. Joe Wood, a store employee at the time of the accident, testified that he had not seen any person in the aisle other than Warden and the little girl. Thus, the evidence showed that at that time, there was no other customer present who could have caused the merchandise to fall.

Warden testified that Katelyn did not climb on any store shelves. However, Wood testified that while walking through the store he observed the little girl standing on the bottom shelf and that she reached up with one hand and “grabbed” the shelf which held the easel. He stated that the girl was “hanging on” to the slanted shelf and that a three-inch “fence” ran along the shelf edge to keep items from falling. In its reasons for judgment, the trial court noted the conflicting testimony and found insufficient 14evidence to establish that the premises presented an unreasonable risk of harm or that the defendant failed to exercise reasonable care.

Wood further testified that he witnessed the accident from 30 to 35 feet away while looking between assorted merchandise displayed in two other interceding aisles and that it seemed to him the girl was “putting some weight” on the shelf. However, Wood did not explain how he could know from his vantage point whether the five-year-old child was actually placing any weight upon the shelf, much Jess whether the weight would have been sufficient to topple an 18-pound box that was properly shelved.

There was no testimony that the girl touched, pushed or pulled the easel before it fell. Even if the young girl grabbed or shook the shelf, this fact by itself does not relieve the defendant of liability. In Ste-pherson, this court affirmed a finding that the store negligently displayed dumbbell weights, even though the customer had picked up one of the weights and placed it back on the shelf prior to her injury.

Here, there was testimony by a store worker, Johnny Palm, that other employees had moved the easels from the floor to their position on the upper shelf, which was set at an angle toward the customers at a height of approximately five feet from the floor. Palm stated that six-inch “fences” were placed along the edge of angled shelves to prevent the goods from falling. He testified that there should have been a fence on the shelf holding the easels, but could not say whether one was in place at the time of the accident.

| BThe store manager, Cheryl Graves, testified that employees were responsible for placing toys safely on the shelves so they would not fall and for inspecting the shelves periodically to see that the toys were secure. She stated that workers were required to check the shelves every hour, but acknowledged that the store did not have a written schedule of inspections and did not keep any records showing how frequently inspections were done. Graves testified that any inspections to check the placement of merchandise on the shelves were visual only and that she did not know when the aisle was last inspected prior to the .accident, other than her initial walk [973]*973through the store at 8:00 a.m., approximately three and one-half hours earlier.

The plaintiffs presented evidence that the falling merchandise, an 18-pound easel in a 26-inch tall box, was displayed on an upper shelf slanted down toward customers in the aisle with only a narrow guard or fence in place along the edge of the shelf to hold the product in place. The easels were displayed at an adult’s eye-level and so were in a position above a child’s head.

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Bluebook (online)
806 So. 2d 969, 2002 La. App. LEXIS 70, 2002 WL 84266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-toys-r-us-delaware-inc-lactapp-2002.