Landry v. Hazelwood & Santillo, Inc.

330 So. 2d 683, 1976 La. App. LEXIS 4653
CourtLouisiana Court of Appeal
DecidedApril 14, 1976
DocketNo. 5426
StatusPublished
Cited by1 cases

This text of 330 So. 2d 683 (Landry v. Hazelwood & Santillo, 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
Landry v. Hazelwood & Santillo, Inc., 330 So. 2d 683, 1976 La. App. LEXIS 4653 (La. Ct. App. 1976).

Opinion

GUIDRY, Judge.

Plaintiff seeks to recover damages for personal injuries sustained when she fell while shopping in a grocery store owned and operated by the defendant, Hazelwood & Santillo, Inc. The American Insurance Company, as the liability insurer of Hazel-wood & Santillo, Inc., is also made a party defendant. The trial court found for the defendant and dismissed her suit at her costs. Plaintiff perfected this appeal.

Plaintiff contends that the trial judge committed error in that although he found that the defendant store owner created and maintained a dangerous condition on its premises he failed to find that this dangerous condition was the cause of plaintiff’s fall and resulting injuries.

The facts of this case are substantially without dispute. On the date of the accident, i. e., August 8, 1974, plaintiff and her common-law husband were shopping in defendant’s grocery store. After making a purchase at the meat counter which was located in the rear of the building she began walking to the front of the store for the purpose of paying for the meat and groceries which she had bought. As plaintiff proceeded to the front of the store down a center aisle she was preceded by her husband, Eddie Thierry. When plaintiff reached a point about four or five feet from the meat counter she slipped or tripped and fell. Plaintiff attempted to break her fall by grabbing her husband who was to her front, however her effort was unsuccessful. Following plaintiff’s fall Eddie Thier-ry summoned another shopper, Alphonse Pitre, and the store manager, Lionel Dupre, to assist him in getting plaintiff to her feet. The only factual dispute concerns what, if anything, caused the plaintiff to fall and whether or not she fell on her back or to her knees. Plaintiff contends that she slipped or tripped when her feet came in contact with a loose piece of plywood which had been laid in the aisle by the owner or manager to cover a weak place in the floor causing her to fall backwards onto her back. Defendant denies that plaintiff’s fall was precipitated by the loose board and asserts that she simply fell to her knees while walking through no fault or negligence on the part of defendant.

It is not disputed that in the aisle where plaintiff was walking and in close proximity (one or two feet) to where plaintiff lay on the floor after her fall there was laying a piece of plywood approximately l/j" thick and 18" square. This piece of plywood, which was not nailed or otherwise fastened to the floor, had been placed there to cover a weak spot in the floor. There is no positive evidence as to who put the loose plywood over the defect in the floor, however, it is clearly established by the record that it had been maintained in the same place for some time and that the store manager was aware of such condition.

The trial court determined that the presence of this loose board laying in the aisle regularly used by the store’s customers was a dangerous condition and that such condition was well known to the storekeeper and/or his manager. In this regard the trial judge had this to say:

“Under the laws of our state, the owner of a store is not an absolute insurer of the safety of the people who patronize his establishment. He is, however, responsible for his lack of diligence in protecting the patrons, and if the evidence should reveal that Mrs. Landry actually tripped over the board or that the board slipped out from under her and that as a result thereof she was injured, then she is certainly entitled to recover. ...”

We believe this finding by the trial court to be eminently correct. In the case of Hay [685]*685v. Sears, Roebuck & Company, 224 So.2d 496, 498 (3rd Cir. 1969) this Court defined the standard of care owed by a business establishment to its customers to be 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 condition.

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.3rd Cir. 1966); Peters v. Great Atlantic & Pacific Tea Company, 72 So.2d 562 (La.App.2nd Cir. 1954).”

The placing and maintaining of a loose board inch thick and 18 inches square in a small corridor lined by shelves of groceries on each side, which aisle is regularly used by the store’s customers, clearly creates a dangerous situation for which the storekeeper is liable if such condition causes injury. It requires little imagination to conclude that as a result of such a condition a customer who is busily engaged in shopping may trip or slip and fall under such circumstances.

In denying recovery to plaintiff the trial court determined that plaintiff failed to establish by a preponderance of the evidence that the loose board was the cause of her fall. Our own review of the record in this case leads us to conclude that the trial court’s determination in this regard was manifestly erroneous. We make this finding with full awareness of the well established rule that the conclusions of the trial court on issues of fact must be treated with considerable appellate respect and should not be disturbed unless manifestly erroneous. Canter v. Koehring, La., 283 So.2d 716 (S.Ct.1973).

It is clear from the record that no one saw the plaintiff fall. As plaintiff fell Eddie Thierry was walking in front of her and only turned around when plaintiff grabbed for him in an attempt to break her fall. In this connection Thierry testified as follows (Tr. pg. 153):

“Q. Okay, now, if you were in front of her, could you see when she fell ?
A. Well, I never seen when she fell, but she struck me what made me knew she fell.
Q. Okay, now, when she struck you, what position was she in?
A. When she struck me, and I looked back, she was flat on her back. That’s the position she was in.”

Alphonse Pitre a customer in the store at the time likewise did not see plaintiff as she fell. Pitre testified on this point as follows (Tr. pg. 169):

“Q. Now, were you looking at her when she fell ?
A. No, sir.
Q. You were not looking at her P
A. No sir. But she fell, when I seen she was on her two knees.”

Lionel Dupre, the store manager, admitted that he was busy at the cash register [686]*686at the time and did not see plaintiff fall (Tr. pg. 181).

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Bluebook (online)
330 So. 2d 683, 1976 La. App. LEXIS 4653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landry-v-hazelwood-santillo-inc-lactapp-1976.