Marshall v. a & P Food Co. of Tallulah

587 So. 2d 103, 1991 La. App. LEXIS 2473, 1991 WL 190741
CourtLouisiana Court of Appeal
DecidedSeptember 25, 1991
Docket22699-CA
StatusPublished
Cited by17 cases

This text of 587 So. 2d 103 (Marshall v. a & P Food Co. of Tallulah) 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
Marshall v. a & P Food Co. of Tallulah, 587 So. 2d 103, 1991 La. App. LEXIS 2473, 1991 WL 190741 (La. Ct. App. 1991).

Opinion

587 So.2d 103 (1991)

Peter MARSHALL, Jr., Appellee,
v.
A & P FOOD COMPANY OF TALLULAH and Crawford & Company, Appellants.

No. 22699-CA.

Court of Appeal of Louisiana, Second Circuit.

September 25, 1991.

*105 Davenport, Files & Kelly by Mike C. Sanders, Monroe, for appellants.

Samuel Thomas, Tallulah, for appellee.

Before MARVIN, SEXTON and NORRIS, JJ.

NORRIS, Judge.

This suit arises out of an incident in which plaintiff Peter Marshall fell in an A & P grocery store after allegedly slipping in a foreign substance on the floor. The trial court awarded Marshall $15,858.99 in total damages, together with interest. A & P appeals the judgment, asserting in seven assignments of error that the trial court erred in:

(1) finding that Marshall's fall was caused by a hazardous substance on the floor;
(2) refusing to apply La.R.S. 9:2800.6 (slip and fall statute), resulting in reversible error;
(3) imposing strict liability and finding A & P liable for a defective bag;
(4) failing to find Marshall comparatively negligent;
(5) awarding excessive general damages; and,
(6) awarding the finance charges on Marshall's drug bills.

For the reasons set out below, we affirm the finding of liability but amend the quantum awarded.

FACTS

On the evening of January 8, 1987, Marshall and his "common law wife," Katherine Robinson, were shopping at the A & P store in Tallulah, Louisiana. The two selected a bag of chicken from the meat market and placed it in their shopping cart; the bag did not appear to be leaking at this time. Marshall and Mrs. Robinson then went in opposite directions to pick up different items, leaving the cart parked in an *106 aisle. It is undisputed that Marshall fell to the floor as he returned to the shopping cart a few minutes later, and that the fall resulted in cervical and lumbosacral strain requiring medical treatment. However, the circumstances of the fall are very much in dispute. We will elaborate on the facts as they pertain to the assignments.

CAUSATION

The trial court stated in its reasons for judgment that "the testimony and evidence adequately established that chicken blood and water, leaking from the plastic bag onto the grocery floor from Mr. Marshall's cart caused him to fall and be injured." By its third assignment, A & P contends that this factual finding was manifestly erroneous. We disagree.

A & P asserts that the fall could not have happened as Marshall claims. First, it argues, very little liquid could have accumulated in the bag of chicken and then leaked to the floor. The record establishes that the bag, secured at the top with a tie, contained 10.31 lbs. of chicken quarters. Mrs. Virginia Carney, an A & P cashier, testified that such a bag would probably contain no more than one cup of liquid. A & P argues that this small amount of liquid was insufficient to spread from under the cart to the place where Marshall fell several feet away. Mrs. Carney further testified that when she responded to Mrs. Robinson's call for help, the only liquid she saw on the floor was a small, orange-sized puddle directly beneath the shopping cart. In addition, one of the police officers who arrived soon after the accident also observed liquid "around the basket," and concluded that the substance came from the chicken bag because there was a puddle directly beneath the cart. A & P thus argues Marshall could not possibly have slipped on liquid that was localized beneath the cart, citing Marshall's and Mrs. Robinson's testimony that he fell before he reached the cart. Mrs. Carney also testified that when she arrived at the scene, Marshall was flat on his back but the soles of his shoes appeared dry and clean.

Mrs. Robinson, however, testified that there was liquid "all over the floor" where Marshall fell. He himself testified that he slipped and his feet went out from under him. After he fell, he could see some liquid on the floor, though he could not say exactly how much. He and Mrs. Robinson both testified that the pants he was wearing that day were soaked with the liquid. The pants were admitted as Plaintiff's Exhibit # 1 with the stains still visible.

A & P suggests that Marshall may have fallen as a result of a "seizure," as he was troubled by high blood pressure, heart problems and diabetes, and had experienced dizziness on previous occasions. Furthermore, Mrs. Robinson said that Marshall had been in bad health when Mrs. Carney asked her if he might have fallen due to a seizure. However, Marshall testified that he was not dizzy, "swimmy-headed" or on medication the day of the accident.

A trial court's findings of fact may not be set aside on appeal in the absence of manifest error or unless they are clearly wrong, and where there is conflict in the testimony, reasonable evaluations of credibility and inferences of fact should not be disturbed on review. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). If trial court findings are reasonable in light of the entire record, an appellate court may not reverse, and a fact-finder's choice between two permissible views of the evidence cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Causation is a fact question on which the trial judge's finding cannot be disturbed absent manifest error. Mart v. Hill, 505 So.2d 1120 (La.1987).

The record permits the conclusion that Marshall did in fact slip in liquid which had dripped from the bag of chicken, perhaps inadvertently kicking the cart as he fell, thus permitting a new accumulation of liquid beneath the cart. The trial court resolved conflicting testimony about the amount of liquid present on the floor in Marshall's favor.

*107 The court concluded that Marshall had shown by a preponderance of the evidence that watery chicken blood had leaked from the bag in his cart, and that he slipped in that substance and fell. The trial court's determination in this regard is adequately supported by the record and is not clearly wrong. This assignment is without merit.

NEGLIGENCE

A & P also assigns as error the court's refusal to apply La.R.S. 9:2800.6, claiming this resulted in the application of an incorrect standard of proof to the case. The slip and fall statute as enacted by Act 714 of 1988 explicitly applied "to all cases tried on or after" July 18, 1988. This case was tried in November 1989, but the court declined to apply the statute because the accident took place before the statute's effective date. The court relied on McCardie v. Wal-Mart Stores, 511 So.2d 1134 (La. 1987), the case implicitly overruled by enactment of the statute, and noted A & P's failure to offer testimony from its meat market manager; thus A & P submits that the court's refusal to apply the statute was reversible error. We disagree.

Admittedly, the trial court was wrong not to apply the statute. The plain language of the enabling legislation makes it applicable to this case. See Morgan v. Stanley Stores, 550 So.2d 733, 735 fn. 1 (La.App.2d Cir.1990).

Moreover, the statute changes the law only to lighten the extremely heavy evidentiary burden placed on defendant merchants by the McCardie decision.[1] The statute first codifies the merchant's court-defined duty to exercise reasonable care to keep the premises free of "any hazardous conditions which reasonably might give rise to damage." R.S. 9:2800.6A.

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Bluebook (online)
587 So. 2d 103, 1991 La. App. LEXIS 2473, 1991 WL 190741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-a-p-food-co-of-tallulah-lactapp-1991.