Morace v. Melvyn's Restaurant, Inc.

719 So. 2d 139, 1998 WL 646843
CourtLouisiana Court of Appeal
DecidedSeptember 23, 1998
Docket30988-CA
StatusPublished
Cited by4 cases

This text of 719 So. 2d 139 (Morace v. Melvyn's Restaurant, 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
Morace v. Melvyn's Restaurant, Inc., 719 So. 2d 139, 1998 WL 646843 (La. Ct. App. 1998).

Opinion

719 So.2d 139 (1998)

Gloria Jean MORACE, Plaintiff-Appellee,
v.
MELVYN'S RESTAURANT, INC. and Lafayette Insurance Company, Defendants-Appellants.

No. 30988-CA.

Court of Appeal of Louisiana, Second Circuit.

September 23, 1998.

*140 Davenport, Files & Kelly by W. David Hammett, Monroe, for Defendants-Appellants.

Dennis Hennen, Monroe, for Plaintiff-Appellee.

Before MARVIN, C.J., and STEWART and PEATROSS, JJ.

MARVIN, Chief Judge.

The defendant restaurant and its liability insurer appeal a judgment awarding $15,800 to the plaintiff-patron, Gloria Morace, who *141 suffered injuries and a scar when she tripped over a chair in a passageway of the restaurant shortly after she entered it about one p.m. on a bright weekday in May 1995.

Appellants contend that the chair did not present an unreasonable risk of harm to restaurant customers and, alternatively, that plaintiff should have been found comparatively at fault and that the award should be found excessive. The trial court found that the chair had been in the passageway for about an hour before the incident and that plaintiff's vision, during the few seconds she had been inside the restaurant, had not adjusted to the contrasting dimness inside from the bright sunshine outside.

We amend to find plaintiff 50 percent at fault and otherwise affirm the judgment.

FACTS

The record supports the trial court's factual findings of how the accident occurred. The diagram which follows, not to scale, made from others in the record, generally depicts the relation of the restaurant entrance and the area in which the chair was located.

*142

We review the record in the light that most favorably supports the judgment. Gloria Morace explained she was "kind of blinded," coming from bright sunshine outside and entering the restaurant lit by a neon beer sign on a back wall. She had been a frequent patron for 7-8 years and was familiar with the video poker room and the placement of tables, chairs and booths in the restaurant.

On the day of the incident the restaurant was "crowded" with patrons when she entered through the front door. She walked to her right after entering, noticing that the video poker room and the restaurant were filled with patrons, standing and seated. She saw that all tables and chairs were occupied. She stood and watched a couple leaving from one of the booths walking sideways through other customers toward her and the exit. After moving aside to let them pass and intending to go to the empty booth, she stepped forward on the dark carpet and fell over a dark gray chair in the aisle. The chair turned over when she stumbled into it.

To avoid falling directly on her face, she turned and hit the left side of her hip and *143 arm on the doorway of the video poker room, scratching her face. She was immediately assisted by the manager, whom she said told her that he had instructed his waiters "an hour ago to move this damn chair." After she declined the manager's offer to call an ambulance, he supplied towels and ice bags for her injuries and then carried her to her car and assisted her to the hospital emergency room.

Mrs. Morace suffered a cut on the shin of her right leg, requiring stitches and abrasions of this leg, scratches on her left arm and bruises on her left hip and head. She used crutches for a week after the incident. Her daughter assisted her with cooking. After her stitches were removed, Mrs. Morace does not walk as much as before.

On cross-examination Mrs. Morace said that after entering, she very briefly stopped twice, three or four seconds first and five to seven seconds next, while looking for a table. She explained her deposition estimate of stopping for 30 seconds, saying that she was "scared" when she gave her deposition.

Mrs. Morace did not see the chair until after she stumbled and fell over it. She was looking and heading toward the empty booth when the incident occurred. The restaurant employees who testified generally stated they had seen Mrs. Morace but most were not in a position to have seen the chair before she fell. One nearby waiter testified that he saw plaintiff enter the restaurant, walk around the corner and trip over the chair. He assumed the chair came from the table next to the video poker room, since a chair was missing from that table. He acknowledged it could have come from elsewhere. He did not see plaintiff stop or look around before proceeding toward the video poker room. Standing about ten feet from the accident, he did not know who placed the chair there or how long it had been there. He described the restaurant chairs as being dark blue.

The restaurant manager said the restaurant was crowded and that six employees were working up front with another four to five in the kitchen. He found Mrs. Morace on the floor, the chair at her feet and part of her body in the video poker room entry way. He also assumed the chair came from the 24" small table nearest the video poker entrance, because one of that table's two chairs was not at that table. Notwithstanding the manager's denial that he said to Mrs. Morace that he had told employees to move the "damn chair" an hour before she fell, the trial court expressly accepted her testimony over his. To his credit, he summoned a patron who was an emergency room nurse to attend Mrs. Morace.

The restaurant witnesses stated no one else had ever fallen over a chair or complained that the chairs were difficult to see or that the lighting was too dim. The restaurant always passed annual inspections by the fire department. Acknowledging he was not a lighting expert, the fire inspector found no problem with the restaurant lighting being too dim or hazardous.

Plaintiff's safety expert took photographs which are in the record, some of which were taken without a flash. His opinion, of course, differed from the opinion of the restaurant's safety expert who concluded the chair did not create an unreasonable risk to restaurant patrons.

LAW

On May 17, 1995 La. R.S. 9:2800.6 read 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 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, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and *144 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 claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.
(2) "Merchant" means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business.

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719 So. 2d 139, 1998 WL 646843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morace-v-melvyns-restaurant-inc-lactapp-1998.