Mullican V. Transamerica Insurance Group

773 So. 2d 207, 0 La.App. 3 Cir. 0105, 2000 La. App. LEXIS 2757, 2000 WL 1715972
CourtLouisiana Court of Appeal
DecidedNovember 2, 2000
DocketNo. 00-0105
StatusPublished
Cited by1 cases

This text of 773 So. 2d 207 (Mullican V. Transamerica Insurance Group) 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
Mullican V. Transamerica Insurance Group, 773 So. 2d 207, 0 La.App. 3 Cir. 0105, 2000 La. App. LEXIS 2757, 2000 WL 1715972 (La. Ct. App. 2000).

Opinions

hPETERS, J.

The plaintiff, Kelli Mullican, brought this suit to recover damages she sustained when she slipped and fell in a Lafayette, Louisiana McDonald’s restaurant. She named as defendants in her law suit, Mac-Laff, Inc., a Louisiana corporation, and its liability insurance carrier, Transamerica Insurance Group. Ms. Mullican appeals a jury verdict rejecting her claim for damages.

Mac-Laff, Inc. is the operator of the McDonald’s restaurant on Johnston Street in Lafayette, Louisiana, and will be generally referred to in this opinion as “McDonald’s.” On April 24, 1994, Ms. Mulli-can slipped and fell on a wet spot in the restaurant as she attempted to deposit some trash in a trash can. She, her sister (Kimberly Claire Pritchard), and two small children (her daughter, Ann, and her nephew, Joey) had gone to the restaurant for lunch. After they completed their meal, Ms. Mullican placed the trash on a tray and proceeded to carry it to the trash can. As she approached a “T” intersection of two aisles within the restaurant, she stepped on a wet spot on the floor. Ms. Mulliean’s feet slipped from under her and she fell to the floor, resulting in various injuries.

A trial resulted in a jury verdict in favor of the defendants. The jury concluded that the condition of the floor presented an unreasonable risk of harm to Ms. Mullican and that the risk was reasonably foreseeable to McDonald’s. However, it also found that McDonald’s exercised reasonable care in addressing the unreasonable risk of harm. In her two assignments of error, Ms. Mullican asserts that the trial court erred in permitting the introduction of hearsay statements to the jury and that the jury erred in determining that McDonald’s exercised reasonable care in addressing the unreasonable risk of harm presented by the wet floor.

The law relative to a merchant’s responsibility toward its customers is found pin La.R.S. 9:2800.6, which, at the time of Ms. Mullican’s accident, read in part 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, 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, pri- or to the occurrence; and
(3) The merchant failed to exercise reasonable care.
C. Definitions:
[210]*210(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.
(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. The parties do not dispute that the floor

where Ms. Mullican slipped was wet. Gina Marie Keddy, the restaurant assistant manager on duty at the time of the accident, testified that another patron of the restaurant had spilled a drink on the floor before Ms. Mullican’s accident and that she had instructed a relatively new employee, Aimee, to mop up the spill. Additionally, the defendants do not seriously dispute the jury’s determination that this wet condition constituted a reasonably foreseeable unreasonable risk of harm to Ms. Mullican. At issue is the jury’s finding that McDonald’s exercised reasonable care under the circumstances. The issue of reasonable care involves the factual dispute over the location of a warning sign in the vicinity of the wet floor.

Both Ms. Mullican and Ms. Pritchard testified that they observed no warning 1¡¡signs before encountering the wet floor, although they observed one after the accident. According to both women, the only warning sign present in the vicinity of the wet floor was a yellow “wet floor” sign around the corner of the “T” intersection. They testified that this sign was not visible to anyone traversing the wet section of the floor. Ms. Pritchard and the children were walking behind Ms. Mullican when she fell, and Ms. Pritchard was the only eyewitness to the accident who testified at trial.

Ms. Keddy did not observe the accident but came to Ms. Mullican’s aid immediately after her fall. She testified that she had personally placed a warning sign at the location prior to the accident after instructing Aimee to mop the floor. According to Ms. Keddy, she noticed that Aimee did not initially post a warning sign but merely began to mop the area. Having noticed this lapse on the part of Aimee, Ms. Keddy warned her of the danger of not posting the sign and then retrieved one herself. Ms. Keddy testified that she then placed a bright yellow A-frame “wet floor” sign “catty-corner” to the trash cans so that it was “visible in all directions.” However, she did not place it directly over the spill because “the sign would have been in the way.” Additionally, Ms. Ked-dy did not continue to monitor Aimee’s activities before Ms. Mullican’s fall.

Ms. Mullican recalled a McDonald’s employee helping her, but she did not know the employee’s identity. She recalled only that the employee apologized and stated that another employee had been cleaning up and had left the spot to retrieve something in the back of the restaurant. After her fall, Ms. Mullican straightened herself and left the restaurant with her sister and the children. According to both Ms. Mulli-can and Ms. Pritchard, the incident initially frightened and embarrassed Ms. Mulli-can and she simply wanted to leave. Ms. Keddy testified that Ms. Mullican told | ¿her she was not injured as she left the restaurant.

Ms. Mullican and her sister then drove Joey to his home in Coteau, Louisiana, a trip which, according to both women, took about twenty minutes. They testified that during the drive they discussed the lack of any warning of the floor’s condition, and Ms. Mullican decided to return to McDonald’s and request completion of an accident report. After returning Joey home, the two women immediately returned to McDonald’s.

Ms. Mullican testified that, when she reentered the restaurant, she observed that the warning sign had been moved and was then directly over the place where she had fallen. In its new position, it blocked her access to the trash can she had approached when she initially slipped.

Initially, Ms. Pritchard remained in the vehicle. Ms. Mullican and Ms. Keddy then [211]*211discussed the accident and the need for an accident report. At some point thereafter, Ms. Pritchard went into the restaurant and joined the conversation. All three women agree that Ms. Keddy prepared an .accident report which included a hand-drawn diagram of the location in the restaurant where the accident occurred. Ms. Mulli-can and Ms. Pritchard testified that, upon completion of the report, they signed it and left the restaurant.

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Bluebook (online)
773 So. 2d 207, 0 La.App. 3 Cir. 0105, 2000 La. App. LEXIS 2757, 2000 WL 1715972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullican-v-transamerica-insurance-group-lactapp-2000.