Riley v. Winn-Dixie Louisiana, Inc.

489 So. 2d 931, 1986 La. App. LEXIS 6897
CourtLouisiana Court of Appeal
DecidedMay 12, 1986
Docket85-CA-744
StatusPublished
Cited by24 cases

This text of 489 So. 2d 931 (Riley v. Winn-Dixie Louisiana, 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
Riley v. Winn-Dixie Louisiana, Inc., 489 So. 2d 931, 1986 La. App. LEXIS 6897 (La. Ct. App. 1986).

Opinion

489 So.2d 931 (1986)

Estella B. RILEY
v.
WINN-DIXIE LOUISIANA, INC.

No. 85-CA-744.

Court of Appeal of Louisiana, Fifth Circuit.

May 12, 1986.
Rehearing Denied June 17, 1986.

*932 Richard J. McGinity, Baldwin & Haspel, New Orleans, for plaintiff-appellant.

Dan R. Dorsey, Lawrence F. Chisholm, Dorsey & Chisholm, River Ridge, for defendant-appellee.

Before KLIEBERT, GRISBAUM and DUFRESNE, JJ.

KLIEBERT, Judge.

The plaintiff-appellant, Estella B. Riley, sued Winn-Dixie, the defendant, for personal injuries sustained as a result of a slip and fall in defendant's store. The case was tried before a jury on May 28, 1985. The jury found the plaintiff to be 90% at fault and the defendant to be 10% at fault. It set plaintiff's damages at $30,000.00, thus casting defendant in judgment for $3,000.00.

Following the denial of plaintiff's motion for judgment notwithstanding the verdict *933 or alternatively for a new trial, plaintiff perfected this devolutive appeal on both liability and quantum. The defendant neither appealed nor answered the appeal. We amend in part and, as amended, affirm.

We consider first the question of liability.

LIABILITY

Ms. Riley entered the defendant's store at approximately 8:15 o'clock P.M. on November 27, 1982. It had been raining that day and there is conflicting testimony as to whether or not it was raining at the time she entered the store. As she walked through the doors, she walked on a mat on the floor, and proceeded approximately six to eight feet on smooth tile towards the shopping carts. Before she reached the carts, her feet "came out from under her" causing her to fall on her buttocks.

Ms. Riley is 56 years of age and is a large woman, weighing approximately 250 pounds. She was helped up by two customers in the store. Neither were called as witnesses. After the fall, she was brought to a cashier who called the manager of the store.

According to Ms. Riley's testimony, at the point of her fall there was a clear, very slick substance on the floor which felt like soap or shampoo to the touch. Her testimony is corroborated by her daughter, Ms. Lolita W. White, who happened to be in the store at the time. The daughter also testified the substance on the floor—a clear puddle about four inches in diameter—was not water and in fact testified she saw no water on the floor. In contrast, the Winn-Dixie employee, a cashier, Ms. Debra Champagne, who cleaned up the floor after Ms. Riley fell, testified there was nothing on the floor but water and this water came from Ms. Riley's wet clothes which got the floor wet.

The manager of the store at the time, Mr. Englert, testified at the trial that a mop is always kept near the place where Ms. Riley fell and it is the duty of every employee to mop up anything they might see on the floor. He further testified that there is no one person hired by Winn-Dixie to keep the floor clean—rather, according to his testimony, keeping the floors clean is every employee's responsibility. He did not recall whether he checked the area to determine what had caused plaintiff to fall. His accident report was based on approximate times and said the area where plaintiff fell was last inspected at 7:30 o'clock P.M. (The fall was at about 8:15 o'clock P.M.).

In a slip and fall case the operator of the store may be liable to a tort victim for the negligence of his employees or of his customers in creating a hazard which causes the victim to fall and sustain injury. Prior to the state supreme court rulings in Kavlich v. Kramer, 315 So.2d 282 (La. 1975) and Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976) the injured victim could recover from the store operator only by proving the store operator or his employee caused the hazard and failed to take reasonable steps to remove the hazard. Since the Kavlich case, however, once the victim proves the hazard caused him to fall and he has sustained the injury, just as in a res ipsa loquitur case, the owner bears the burden of going forward with evidence to exculpate itself from the presumption it was negligent. Thus, once the plaintiff meets his burden of proof, to exculpate himself from negligence the store operator has to show (1) the hazard was not caused by one of his employees and (2) he exercised such a degree of care that he would have known under most circumstances of a hazard caused by customers. Brown v. Winn-Dixie Louisiana, Inc., 452 So.2d 685 (La.1984); Rose v. Winn-Dixie Louisiana, Inc., 474 So.2d 26 (4th Cir.1985); Hull v. Schwegmann Bros. Giant Supermarkets, Inc., 480 So.2d 1069 (5th Cir.1985).

In 1979, Louisiana, by Act No. 431, which became effective on August 1, 1980, adopted a pure comparative fault system.[1]*934 It was specifically designed to supercede our former contributory negligence doctrine (under which any degree of negligence of the injured party prohibited his recovery from the tortfeasor). Although the allocation of shares of negligence are imposed on the fact finder, the statute (C.C. art. 2323) does not set out with particularity guidelines as to how the allocation is to be accomplished. Watson v. State Farm, 469 So.2d 967 (La.1985). In Watson, supra, the Supreme Court held the trier of fact should, in determining the percentage or degree of fault, consider both the nature of the conduct of each party and the extent of the casual relationship between the conduct and the damages proven.

Pursuant to the provisions of Code of Civil Procedure article 1812 A, the following interrogatories as to liability were submitted to the jury and it answered them in the manner indicated:

"1. Was the defendant, Winn Dixie, at fault?
X yes ___ no
If your answer is yes, go on to Question 2.
If your answer is no, stop here, sign this form and return to the Courtroom.
2. Was Winn Dixie's fault a proximate cause of the plaintiff's injuries?
X yes ___ no
If your answer is yes, go on to Question 3.
If your answer is no, stop here, sign this form and return to the Courtroom.
3. Was the plaintiff, Estella B. Riley, at fault?
X yes ___ no
If your answer is yes, go on to Question 4.
If your answer is no, skip Questions 4, 6, and 7, and answer Question 5
4. Was Estella B. Riley's fault a proximate cause of her injuries?
X yes ___ no
If your answer to # 4 is yes, answer all remaining questions. If your answer to # 4 is no, skip questions 6 and 7 and answer question # 5.
* * * * * *
6. What percentage of negligence do you attribute to the plaintiff, Estella B. Riley?
90% * Go on to # 7.
7. What percentage of negligence do you attribute to the defendant, Winn Dixie?
10% *
* The percentages in questions 6 and 7 must TOTAL 100%."

Counsel for the plaintiff contends that since the jury found Winn-Dixie to be at fault and its fault was the proximate cause of the accident, the only issues as to liability are: (1) did the defendant carry the burden of proving plaintiff contributorily negligent and (2) if so, in what degree.

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Bluebook (online)
489 So. 2d 931, 1986 La. App. LEXIS 6897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riley-v-winn-dixie-louisiana-inc-lactapp-1986.