Raymond v. Safeway Stores, Inc.

522 So. 2d 1350, 1988 WL 26905
CourtLouisiana Court of Appeal
DecidedMarch 30, 1988
Docket19506-CA
StatusPublished
Cited by6 cases

This text of 522 So. 2d 1350 (Raymond v. Safeway Stores, 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
Raymond v. Safeway Stores, Inc., 522 So. 2d 1350, 1988 WL 26905 (La. Ct. App. 1988).

Opinion

522 So.2d 1350 (1988)

Robert L. RAYMOND and Carrie M. Raymond, Plaintiffs-Appellants,
v.
SAFEWAY STORES, INC., Defendant-Appellee.

No. 19506-CA.

Court of Appeal of Louisiana, Second Circuit.

March 30, 1988.

*1351 Travis M. Holley & Associates by Scott E. McElroy, Bastrop, for plaintiffs-appellants.

Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for defendant-appellee.

Before JASPER E. JONES, NORRIS and LINDSAY, JJ.

NORRIS, Judge.

This is a case for personal injuries from an alleged slip and fall. The jury found that the defendant grocery store was not negligent and the plaintiff appeals, arguing that the defendant did not exculpate itself from the legal presumption of negligence under the recent case of McCardie v. Wal-Mart Stores, 511 So.2d 1134 (La.1987). Finding that the evidence does not rebut the presumption, we reverse and render.

FACTS

The plaintiff, Mr. Raymond,[1] was an 82-year old gentleman who was blind in one eye and had a cataract in the other. On April 2, 1984, he entered the old Safeway Store in Bastrop to collect his wife, who had gone in while Mr. Raymond ran an errand at the Otasco next door. Looking for her, he walked down Safeway's produce aisle where an employee, Kelvin Hobbs, was restocking apples from boxes on a dolly. A bin displaying white grapes was only three or four feet away. Mr. Raymond was walking between the dolly and the grape bin when he suddenly slipped on something he had not seen. According to Mr. Raymond, he slipped and landed on his seat, also bumping his left shoulder against one of the stacked apple boxes; when he started to get up, Hobbs came and helped *1352 him to his feet. According to Hobbs, as soon as he noticed that Mr. Raymond was losing his balance, he rushed over and was able to catch him before he completely fell. After Hobbs had helped Mr. Raymond to his feet, he glanced at the floor and noticed a smashed white grape which he promptly wiped up. Mr. Raymond told the store manager, Mr. Tomboli, that his left arm was hurt, but he refused medical attention and left.

The next day, Mr. Raymond went to Dr. Chorette, who noted muscle spasms in the neck, left shoulder, lower back and buttocks. An X-ray revealed severe arthritis, especially in the lumbar area, that predated the accident, but Dr. Chorette thought the instant complaints were due to the slip and fall. He placed Mr. Raymond on a moderate dosage of Motrin. On May 7 Mr. Raymond was sent to the hospital for observation and therapy; he was discharged on May 11 with a prescription for a muscle relaxant. Mr. Raymond saw Dr. Chorette again in July 1984 for an unrelated knee injury but still complained of lower back pain. Mr. Raymond returned to Dr. Chorette about a week before trial for a re-evaluation. He was still suffering from pain in the neck, shoulders and lower back. Dr. Chorette admitted that the arthritis predated the incident, but believed the trauma of slipping and falling caused some aggravation. Mr. Raymond suffers with a 30-50% limitation of the lower back, but is otherwise in good health for a man his age.

Another physician, Dr. Tugwell, testified to numerous physical difficulties Mr. Raymond had experienced before this incident. In 1972 he had diagnosed a degenerative cervical disc, hypertrophic arthritis and a bilateral indirect inguinal hernia. Mr. Raymond was hospitalized in May 1972 for pain in the lower back, radiating to the legs. In 1975 he was hospitalized for chest pain radiating down the left arm. In 1976 he stepped in a hole and twisted his back; he was hospitalized for acute lumbosacral sprain and hypocarotosis of the neck. Dr. Tugwell admitted that Mr. Raymond had not reported any back or shoulder problems between 1976 and 1984, but explained that people with arthritis could go for long periods of time without any significant complaints. Dr. Tugwell also admitted that the fall could aggravate an arthritic condition, but stated that arthritis usually gets gradually worse anyway, consigning a patient to pain "off and on" as he exerts himself.

As noted, the jury found, in response to special interrogatories, that Safeway was not guilty of negligence by a preponderance of evidence. The subsequent questions were not reached. The trial judge signed judgment pursuant to the verdict, and Mr. Raymond has appealed.

DISCUSSION: SAFEWAY'S NEGLIGENCE

Appellant argues the jury's verdict was manifestly erroneous because the evidence did not show that Safeway exculpated itself from the legal presumption of negligence.

Prior to Kavlich v. Kramer, 315 So.2d 282 (La.1975) and Gonzales v. Winn-Dixie La., 326 So.2d 486 (La.1976), a tort victim injured by a fall caused by a foreign substance on a supermarket floor could recover only by proving that the store operator or his employee caused the hazard, or that the operator had actual or constructive knowledge of the hazard and failed to take reasonable steps to remedy the condition. In Kavlich, the supreme court held that once the victim proves that the substance caused him to slip, fall and sustain injuries, the store operator has the burden of going forward with evidence to exculpate itself from the presumption that it was negligent. The court reasoned that the victim was in no position to know how the substance came to rest on the floor or to prove that the employees were negligent. In Gonzales, the court outlined the considerations in determining the reasonableness of protective measures utilized by the store operators to avoid or minimize the risk of harm:
The circumstances that determine the reasonableness of protective measures include the type and volume of merchandise, the type of display, the floor space utilized for customer service, the nature *1353 of customer service, and the volume of business. 326 So.2d at 488.

In Brown v. Winn-Dixie La., 452 So.2d 685 (La.1984), the court summarized that under the new evidentiary burden, the store operator is required to prove that his employees did not cause the hazard and that he exercised such a degree of care that he would have known under most circumstances of a hazard caused by customers. 452 So.2d at 687.

The supreme court recently reaffirmed the defendant's twofold burden in a slip-and-fall case. McCardie v. Wal-Mart Stores, 511 So.2d 1134 (La.1987). We have therefore analyzed the instant case with a view to determining whether defendant Safeway met this burden.

As to Safeway's cleaning procedures, three witnesses testified: the store manager, Mr. Tomboli; the meat department manager, Mr. Atkins; and the produce department employee, Kelvin Hobbs. They tried to establish a routine of regularly scheduled sweepings supplemented with continuous spot checks and additional cleaning as needed. We admit that the sufficiency of this regimen would be a close question; the scheduled sweepings might distinguish Safeway's procedure from those disapproved in Ritchie v. S.S. Kresge Co., 505 So.2d 831 (La.App. 2d Cir.1987), writ denied 507 So.2d 227 (La.1987), and Brown v. Winn-Dixie La., supra. However, we need not reach a conclusion on this issue. "Merely proving adequate clean up procedures is insufficient to prove a spill was not caused by one of the store's own employees." McCardie, 511 So.2d at 1136.

As to proof that no Safeway employee caused the spillage, there was no evidence whatsoever. According to Mr. Tomboli, there are usually ten to 20 employees in the store; only three testified at trial and none of them denied creating the spill.

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522 So. 2d 1350, 1988 WL 26905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raymond-v-safeway-stores-inc-lactapp-1988.