Pilie v. National Food Stores of Louisiana, Inc.

158 So. 2d 162, 245 La. 276, 1963 La. LEXIS 2667

• Court: Supreme Court of Louisiana
• Decided: November 12, 1963
• Docket: 46586
• Status: Published

Opinions

HAWTHORNE, Justice.

On application of plaintiffs we granted certiorari in this case so that we might review the judgment of the Court of Appeal, First Circuit, holding that the doctrine of res ipsa loquitur could not be applied to permit recovery from the defendants National Food Stores of Louisiana, Inc., and National’s insurer American Surety Company of New York.

The facts are set forth fully in the opinion of the Court of Appeal, 148 So.2d 391. For the purposes of our decision we shall state them only briefly.

In the late afternoon of Friday, March 11, 1960, while plaintiff Mrs. Charles S. Pilie was passing a coca-cola display in the self-service store of the defendant National Food Stores of Louisiana, Inc., one or two six-bottle cartons of coca-cola fell from the display, one or more of the bottles broke, and Mrs. Pilie’s right foot was lacerated by flying glass and a nerve of that foot injured. Mrs. Pilie, who was pushing' a wheeled cart supplied by the store to its customers for convenience iff carrying articles of merchandise, had gone to the store to purchase a few grocery items, none of which was coca-cola, and at the time of the accident was passing the coca-cola display en route to the bread counter. Her testimony is that she did not touch the display either with her body or with, the cart,, that she was sqme 18 inches from it when the, cartons, of bottles fell, and that she did not know what caused them to fall. • :

The display rack of coca-colas from which these cartons fell had been stacked or arranged by an employee of the coca-cola company in the National store in the early morning of Thursday, March 10, the day before the accident happened; and between Thursday when the coca-colas were stacked and the following Monday when the coca-cola .company replenished the rack, many cartons had been removed by the customers of National but not enough to warrant any replenishment from its storeroom stock by National. Because ■of street repair work in front of the store at this time, business of National was less than normal. No employees of National were in the vicinity of the accident 'at the time it occurred.

Plaintiffs ¹ sued National Food Stores of Louisiana, Inc., its insurer, and the Baton • Rouge' Coca-Cola Bottling Company. Defendant National by third party petition > sought to recover from the coca-cola company for any judgment rendered against 'it resulting from the accident. After trial ¡ on the merits the district court rendered judgment in favor of plaintiffs and against i National and its insurer, and rejected plaintiffs’ demands and third-party plaintiff’s demands against the coca-cola company.

On appeal the Court of Appeal affirmed ^ the judgment dismissing the suit as to the coca-cola company, but reversed 'the district court’s judgment against National and its insurer and dismissed plaintiffs’ suit.

In the Court of Appeal the plaintiffs did not invoke the doctrine of res ipsa loquitur against the coca-cola company, but maintained that that company was negligent in erecting an unstable display. The Court of Appeal, after reviewing all the facts and circumstances connected with the stacking or arranging of the display of coca-colas by the employee of that company, concluded that plaintiffs had failed to prove that the injury sustained by Mrs. Pilie resulted from any negligence by Coca-Cola. In application for writs to this court plaintiffs stated that they “do not complain of the affirmance of the judgment rejecting their demands against the Baton Rouge Coca Cola Bottling Company, Limited”, but sought a reinstatement of the judgment of the trial court which had granted them recovery against National and its insurer and denied recovery against Coca-Cola.

The Court of Appeal in concluding that the doctrine of res ipsa loquitur was not applicable as to National said:

“ * * * Here, this display shown to have been in a safe condition originally, not shown by Plaintiff to have been in disarray, not shown to have cartons placed thereon in a negligent manner within the Defendant’s knowledge, Plaintiff was thereby in as good a position as Defendant to show the reason the carton fell and to recover she would have to affirmatively show acts of negligence on the part of Defendant.”

The Court of Appeal also cited authorities to the effect that “The rule will not be applied where the evidence discloses that the injury might have occurred by reason of the concurrent negligence of two or more persons or causes, one of which was not under the management and control of the defendant”.

Plaintiffs did not offer any affirmative evidence of any fact or circumstance tending to establish fault or negligence by National, and there is no evidence to show that Mrs. Pilie was at fault. She stated that she did not know what caused the bottles to fall, and the proof does not even suggest any cause for their falling.

In their application for writs plaintiffs presented the question of law to this court thus:

“There is only one question of law involved and that is whether or not the .unexplained fall of several 6-bottle cartons of Coca Cola from a display in a grocery store and supermarket, which fall results in injuries to a business guest of that establishment, is a proper case ■ for the application of the doctrine of res ipsa lo.qui.tur as to the proprietor of such establishment.”

Dispensing with the Latin words, we can restate their argument thus:

“There is only one question of law involved and that is whether or not the unexplained fall of several 6-bottle cartons of Coca Cola from a display in a grocery store and supermarket, which fall results in injuries to a business guest of that establishment, logically gives rise to the inference that the negligence of the proprietor caused the accident which produced plaintiff’s injuries.”

This court observed in Day v. National U. S. Radiator Corporation, 241 La. 288, 128 So.2d 660 (1961):

“ * * * This doctrine [res ipsa loquitur] is a qualification of the general rule that negligence is not to be presumed but must always be affirmatively proved, and therefore should be sparingly applied, and only in exceptional cases where the demands of justice make that application essential. * * *»

In Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389 (1957), a case involving a collision between .two private automobiles, the plaintiff sought .to invoke the doctrine of res ipsa loquitur. This court there reviewed and discussed the jurisprudence of this court and of the Courts of Appeal, that of other states, and the works of textwriters .and scholars, on the meaning of the maxim "res ipsa loquitur”, its application, and instances where though invoked the doctrine has no application. In that case, which is recognized as a landmark case in this state on the subject, we said:

“A determination of a proper instance for application of the principle of res ipsa- loquitur has been the subject of volumes of'discussion by learned jurists and legal scholars,- who have been at pains to point out that the maxim means only that the' facts of the occurrence warrant the inference of negligence, not that they compel such an inference ***.*** It is .generally'-conceded .that-res. ipsa loquitur in no way,modifies the rule that negligence will not be .presumed. The .application of .the rule does not, therefore, dispense with the necessity that the plain-jiff prove negligence, but is simply a step ¡in the process of such proof, permitting the plaintiff, in a proper case, to place in the scales, along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence, thereby obtaining an advantage and placing on the defendant the burden of 'going forward with proof to offset that advantage. When all the evidence is in, the question is still whether the preponderance is' with the plaintiff: All that is meant by re’s i'psa loquitur' is 'thát the circumstances 'involved in' Or connected with' an accident ‘are" Of ’ Such 'kn "Unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable .conclusion is that the accident was due to some omission of the defendant’s duty.’

* ft % ‡ ‡

“ * * * In the case of Morales v. Employers’ Liability Assur. Corp., 202 La. 755, 12 So.2d 804, this Court aptly stated: ‘It is the duty of the plaintiff to prove negligence affirmatively; and, while the inference allowed by the .rule, of res ipsa loquitur constitutes such proof, it is only where the circumstances leave no room for a different presumption that the rule applies. When it is shown that the accident might have happened as the result of one of two causes, the reason for the rule fails and it can not be invoked,’ 202 La. at page 769, 12 So.2d at page 808.”’ (Italics ours.)

The Larkin case has been recognized as-, a “clear and penetrating discussion of res. ipsa' loquitur by Chief Justice Fournet” and as a sensible appreciation of the real problem in'applying it'in'each case: Do. the facts'of'the'controversy suggest ■ negligence of the defendant, rather than some other factors, as the most plausible explanation of the accident? See Malone, Torts, Proof of Negligence, 19 La.L.Rev. 334 et seq. The case has also been recognized as in accord with the general rule that res ipsa loquitur does not apply where the facts are such that an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as one that it was due to his negligence. Annotation, 79 A.L.R.2d 6, 68.

We are here dealing with an accident which occurred in a self-service store. The difficulty in such a case for a plaintiff urging res ipsa loquitur is immediately apparent. The availability of the merchandise to plaintiff and other customers in self-service stores gives rise to the possibility that he or another customer or the proprietor caused the accident and makes the inference more difficult to draw as to the proprietor.

In this state there are two res ipsa cases involving self-service stores where a customer was injured as a result of some fall-

ing object. In one of these cases, Beck v. United States Fidelity & Guaranty Co., 76 So.2d 120 (1954), the Second Circuit Court of Appeal found the doctrine to be applicable. In the other, Monroe v. H. G. Hill Stores, Inc., 51 So.2d 645 (1951), the Orleans Court of Appeal found the doctrine not to be applicable. Although in one case the doctrine was applied and in the other it was not, the decision in each can be sustained on its own facts.

The courts of other states have recognized the difficulty of applying the doctrine in cases of accidents resulting from objects falling on customers in self-service stores. The courts of Pennsylvania have taken the position that they will never apply the doctrine in cases involving injuries to an invitee of a storekeeper.² California and Ohio and Virginia have in effect rejected its applicability in the self-service situation.³ Courts have consistently refused to apply the doctrine to particular cases because under the facts it was at least equally probable that another customer’s negligence caused the injury⁴ or plaintiff’s negligence could have contributed to the accident.⁵ New York has overcome the other-customers obstacle by making them the agents of the proprietor as if they were clerks. Robinson v. Atlantic & Pacific Tea Co., 184 Misc. 571, 54 N.Y.S.2d 42 (1945). The unsoundness of this premise has been expressly recognized, Bridgman v. Safeway Stores, Inc., supra, and its use to make the proprietor liable without fault and an insurer of his customers has been pointed out in a concurring opinion in Perito v. Sunrise Supermarket Corp., 33 Misc.2d 627, 229 N.Y.S.2d 667 (1961). New Jersey has taken the common-sense view that res ipsa loquitur cannot be applied in every case when a .customer is injured because of merchandise falling in self-service stores, but that each case must turn on its own facts as to whether “there is evidence from which the court * * *. can find that in the ordinary course of things the mishap, more likely than not, was the result of defendant’s negligence”. Francois v. American Stores Company, 46 N.J.Super. 394, 134 A.2d 799 (1957).⁶

As pointed out previously, our own jurisprudence is in accord with the view that each case must be decided on its own facts and circumstances, and that res ipsa loquitur will not be applied unless the facts and circumstances indicate that the negligence of the defendant, rather than the negligence of others, is the most plausible explanation of the accident. Accordingly in answer to plaintiffs’ question of law, the facts and circumstances of this case do not permit the application of the doctrine of res ipsa loquitur because frotn them we cannot draw the inference that it was National’s negligence, rather than the negligence of others, that caused the cartons to fall.

Plaintiffs insist, however, that the case of Washington v. T. Smith & Son (La.App.), 68 So.2d 337, wherein the doctrine was applied against a steamship agent that had charge of a large crated airplane wing stored on a wharf which fell and injured á workman nearby, is authority for applying the doctrine in this case! Suffice it to say that the doctrine was applied there with little discussion of the legal principles applicable to it, and the facts of that case make it of little use in determining the applicability of the doctrine in this case.

For the reasons assigned the judgment of the Court of Appeal is affirmed. Plaintiffs-relators are to pay all costs incurred in their suit against National Food Stores of Louisiana, Inc., and American Surety Company of New York.

1 . Mrs. Pilie’s husband, who is a party plaintiff to the suit, seeks recovery for medical expenses incurred as a result of her injuries.

2 . Cohen v. Penn Fruit Company, 192 Pa. Super. 244, 159 A.2d 558 (1960).

3 . Bridgman v. Safeway Stores, Inc., 53 Cal.2d 443, 2 Cal.Rptr. 146, 348 P.2d 696 (1960); McCormack v. Pick-N-Pay Super Market, Ohio App., 170 N.E.2d 491 (1960); Murphy v. J. L. Saunders, Inc., 202 Va. 913, 121 S.E.2d 375 (1961).

4 . Hart v. Emery, Bird Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509 (1938) ; Gonzales v. Shoprite Foods, Inc., 69 N.M. 95, 364 P.2d 352 (1981) ; Marnsigli v. C. W. Averill Co., 123 Vt. 234, 185 A.2d 732 (1962); Lee v. Safeway Stores, Inc., Mun.App., D.C., 184 A.2d 212 (1962); see Cohen v. Penn Fruit Company, supra.

5 . Gonzales v. Shoprite Foods, Inc., supra; Herring v. Great Atlantic & Pacific Tea Co., C.C.A.6th, 253 F.2d 954 (1958). See Cohen v. Penn Fruit Co., supra; Bodenheimer v. National Food Stores, Inc., 255 N.C. 743, 122 S.E.2d 715 (1961); Food Fair Stores, Palm Beach, Inc., v. Spinelli, Fla.Dist.Ct. of App., 122 So.2d 41 (1960).

6 . In the same category may he placed Barker v. Crown Drug Co., 284 S.W.2d 559 (Mo.1955); Copher v. Barbee, Springfield App., 361 S.W.2d 137 (1962); Kroger Grocery & Baking Co. v. Stevenson, Ky.App., 244 S.W.2d 732 (1951). See also Pratt v. Womack, 359 P.2d 223 (Okl.1961); Winn-Dixie Stores, Inc., v. Fredericks, 106 Ga.App. 732, 128 S.E.2d 542 (1962).