Nelson v. Southeast Food, Inc.

892 So. 2d 790, 2005 WL 180455
CourtLouisiana Court of Appeal
DecidedJanuary 28, 2005
Docket39,157-CA
StatusPublished
Cited by5 cases

This text of 892 So. 2d 790 (Nelson v. Southeast Food, 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
Nelson v. Southeast Food, Inc., 892 So. 2d 790, 2005 WL 180455 (La. Ct. App. 2005).

Opinion

892 So.2d 790 (2005)

Bertha B. NELSON, Plaintiff-Appellee,
v.
SOUTHEAST FOOD, INC., d/b/a County Market, Defendant-Appellant.

No. 39,157-CA.

Court of Appeal of Louisiana, Second Circuit.

January 28, 2005.
Rehearing Denied February 24, 2005.

*791 Scott L. Zimmer, Shreveport, for Appellant.

C. Bryan Racer, Monroe, for Appellee.

Before WILLIAMS, DREW and LOLLEY, JJ.

WILLIAMS, J.

Southeast Food, Inc. d/b/a County Market ("County Market") appeals from a judgment holding it liable for personal injuries to the plaintiff, Bertha Nelson, and awarding her $8,982.19 in general and special damages and lost wages. We affirm.

FACTS

On the evening of July 8, 2002, Ms. Bertha Nelson, a housekeeper, went shopping at the County Market grocery store in Monroe, Louisiana. She intended to *792 purchase calamine lotion and chicken wings; because she was only planning to buy two items, she said that she did not get a grocery cart. She first retrieved the calamine lotion and then she walked toward the "cold" section of the store to get the chicken.

Due to some confusion and alleged inconsistencies in the testimony, the layout of this section of the store and the site of the events that led to this lawsuit were explored in depth during discovery and at trial. A tall vertical refrigerated display case runs all along one wall of the store except for a break for a door that opens to a private area of the store. In this refrigerated case, the store displays various dairy items for sale. The store's floor covering in this area is a hard, white linoleum-type material. There is a small circular drain in the floor immediately adjacent to the dairy case situated approximately at the horizontal center of the case. Across the aisle (which is approximately three grocery cart-widths wide) from the wall-length dairy case are several low rectangular freezer cases for displaying meats. These cases are separated at several intervals by spaces that allow shoppers and their carts to pass through the meat displays to and from the dairy case to the next adjacent aisle which contains a long unbroken vertical freezer case that runs parallel to the meat cases. At the end of the dairy case at the rear of the store is a perpendicular wall; where the dairy case meets this wall, there is another door to a private area of the store. Along the perpendicular wall there is another display case. There is a long aisle running along the back of the store between the rearmost meat freezer and this perpendicular display case.

On two occasions earlier in July 2002, the store had a plumber working to clear and unclog the store's drains; a receipt from July 6, 2002, reflects that the plumber "rodded drains in meat cooler-cleared blockage." The store manager, Gary Lavel, confirmed that the plumber had been in the store on July 6.

The assistant manager of the store, Chad Creel, testified that the floor log from 7:45 on the evening of July 8, 2002, showed that "there was no water on the floor" at that time. However, at some point that evening, water began coming up out of the floor drain near the dairy case. Eventually this water created an oval-shaped puddle about eight to ten feet long and about three feet wide adjacent to the dairy case.

Ms. Nelson testified that as she was shopping in the area of the meat displays, she slipped and fell. Despite ample testimony on the issue, the precise location of her fall is unclear from this record because much of her most relevant testimony was illustrated by gestures and demonstrations that are not adequately conveyed by the record.

After the incident, Ms. Nelson wrote on the store's accident report in the "location" blank that the accident happened in "dairy in front of butter." At her deposition, Ms. Nelson said that after she got the calamine lotion, she walked back to where the cash registers were, turned right, and had just begun to make another right turn to go to the meat section when she slipped and fell in water. She later testified as follows:

Q: So the aisle that you fell at or where you fell at, on one side of the aisle is butter and dairy products?
A: Uh-huh (yes).
Q: And on the —
A: You could see that. Uh-huh (yes). That's where the — where the — where *793 the — When I got up, that's when I started looking around.
...
Q: So one side of the aisle is butter and dairy products?
A: Uh-huh (yes)....
Q: And on the other side of the aisle are meat products?
A: Yes, sir....
Q: Okay. Just to clarify so I can get a better idea of where you were, you were walking down an aisle. At the end of that aisle is the meat department aisle.
A: Yes, sir.
Q: On the far side of the meat department aisle away from you would have been the butter and dairy products?
A: Yes, sir.
Q: Closer to you would have been the part of the meat department aisle that had the meat?
A: Yes, sir.
Q: You were trying to take a right turn —
A: Yes, sir.
Q: — just before you slipped and fell to go to the meat —
A: Yes, sir.

At trial, she explained:

Q: And the question in your deposition was you were in an aisle on one side of that aisle was butter and on the other side of the aisle was meat and that's where you said you fell, correct?
A: No, I said I fell between the meat bins.[1] I hadn't — I wasn't nowhere at the butter when I fell. I wasn't nowhere over there in that area. I only fell one place. Now, after I got up I'm faced with what's over there.

Ms. Nelson also pointed at the scene on the videotape. The trial judge noted that she was familiar with the layout of the store.

Ms. Nelson said that when she fell, she told a woman who had her back turned to her that she had fallen and that this person said "Baby, I should have told you it was water on the floor." Ms. Nelson said that she had not previously seen the water on the floor and said that the water "was gushing out of there. It was just everywhere." Ms. Nelson said that she then got a nearby cart, put her lotion in the cart and then continued shopping in the meat section for the chicken wings. She said that she began to have pain in her right knee as she shopped and that her knee began to swell. She testified that after she finished her shopping, she reported the incident to the manager, a "Mrs. Clara," and that another employee took pictures of her and her right knee.

The location of Ms. Nelson's fall remains uncertain despite more than an hour of store surveillance videotape admitted into evidence. The County Market had a sophisticated time-lapse video surveillance system in place that used sixteen cameras to cover various parts of the store. One of the cameras was placed above the doorway at the intersection of the dairy display case and the back wall. The camera gives a lengthwise view of the dairy/meat aisle; the video clearly shows the entire length of this aisle and the area of the floor drain from which the water backed up.

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Cite This Page — Counsel Stack

Bluebook (online)
892 So. 2d 790, 2005 WL 180455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-southeast-food-inc-lactapp-2005.