Sierra v. Schwegmann Giant Supermarkets, Inc.

487 So. 2d 151
CourtLouisiana Court of Appeal
DecidedApril 11, 1986
DocketNo. CA-4714
StatusPublished
Cited by2 cases

This text of 487 So. 2d 151 (Sierra v. Schwegmann Giant Supermarkets, 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
Sierra v. Schwegmann Giant Supermarkets, Inc., 487 So. 2d 151 (La. Ct. App. 1986).

Opinion

CIACCIO, Judge.

Plaintiff, Gloria Sierra, filed suit to recover damages for injuries suffered when she slipped and fell on a broken bottle while shopping in the defendant’s store. The jury found the defendant solely liable for Ms. Sierra’s injuries and awarded her [152]*152damages of $15,500. Defendant appeals this judgment and we affirm.

On appeal the defendant contends the trial court erred in its findings on the issue of liability and the nature and amount of the damage award.

On May 2, 1979 Gloria Sierra, a twenty-nine year old mother of four, was shopping at Schwegmann Giant Supermarket located on Judge Perez Drive in Chalmette, Louisiana. At the time, Ms. Sierra was almost 7 months pregnant with her third child. She was accompanied by David Sierra, the man who later became her husband. Shortly before this accident, the couple had finished their grocery shopping and had proceeded to the check out line. Upon reaching the check-out line, they realized that they had failed to select a bottle of steak sauce. Since the line was long, Ms. Sierra decided to proceed, alone, to the aisle on which the steak sauce was located. She was looking for the sauce when she slipped and fell on a broken bottle of hot pepper sauce which was on the aisle floor adjacent to the shelf. She hit her back and the back of her head in the fall.

Shortly thereafter, David Sierra heard an announcement over the store’s speaker system that a pregnant woman had fallen in the store. He left the check out line and went to search for Gloria Sierra. He found her sitting on the floor in the aisle where the sauces are shelved. According to David Sierra, he also saw blood, glass, and a red substance on the floor.

The store’s security supervisor summoned an ambulance and the plaintiff was taken to the St. Bernard Medical Center where she was treated, stitches were placed in her back and she was released.

Ms. Sierra thereafter visited the St. Bernard Clinic on approximately six occasions complaining of headaches and back pain. She saw Dr. Voegel and also Dr. Morris for x-rays.

Shortly after the accident, the plaintiff visited a gynecologist, Dr. Llanos, who checked the condition of her unborn child. Dr. Llanos advised the plaintiff that the infant’s heart beat was normal but little else could be determined until after the birth of the baby. The infant was born without complications on July 7, 1979.

Ms. Sierra also visited Dr. Sheldon Hersh, an internist and her husband’s physician. She first visited Dr. Hersh on May 11, 1981 and she complained of headaches which had started two years before. Dr. Hersh prescribed Fiorinal, heat applications and neck massage. On June 12, 1981 plaintiff returned to Dr. Hersh. She advised him that she continued to suffer from headaches but they were milder. On July 30, 1981 the plaintiff was sent to have x-rays, a CAT scan, EEG and thermography of the head. These tests proved negative. On October 26, 1984 the plaintiff was better than on her last visit and only occasionally suffered from headaches. Dr. Hersh was of the opinion that Mrs. Sierra would continue to suffer from headaches for the rest of her life. He originally attributed the headaches to tension, but, at that time, he was not aware of the history of plaintiff’s fall. However, at trial, having learned the history of plaintiff’s fall, Dr. Hersh testified that it was more probable than not that the headaches were caused by the fall and would continue indefinitely.

The plaintiff continues to suffer from headaches and back pain. The back pain currently occurs every 3 to 4 days and the headaches occur about every 5 days.

Although Mrs. Sierra complained of visual problems after her fall, Dr. Michael Wall, a neuropthalmalogist who examined her in 1982 and 1984 found that these problems were not related to the fall which occurred May 2, 1979.

The duty of care required of store owners for the protection of their customers in such cases as this is set forth in Gonzales v. Winn Dixie Louisiana, Inc. 326 So.2d 486 at 488 (La.1976).

The duty of a store owner to protect his customers from foreign substances on the floor is one of reasonable care under the circumstances. Reasonable protective measures, including periodic inspections, must be taken to keep the [153]*153aisles and floors free of substances or objects that may cause customers to fall. Kavlich v. Kramer, La., 315 So.2d 282 (1975); Tripkovich v. Winn-Dixie of Louisiana, Inc., La.App. 284 So.2d 80 (1973); Fontanille v. Winn-Dixie Louisiana, Inc. La.App. 260 So.2d 71 (1972), cert. denied, 261 La. 1064, 262 So.2d 44 (1972); Prosser, Law of Torts, Sec. 61, pp. 392-392 (4th ed. 1971). 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 of customer service, and the volume of business. As we recently noted, the self-service grocery system requires customers to focus their attention on the shelves and to handle merchandise. The system increases the risk of harm from objects dropped on the floor by customers and, correspondingly, the duty to minimize the risk by frequent inspections and cleanups. See Kavlich v. Kramer, supra; Prosser, Law of Torts, Sec. 56 p. 349 (4th ed. 1971).

Once it is established that a foreign object was on the store’s floor which has caused the plaintiff to fall, the burden shifts to the defendant store owner to exculpate himself from negligence by proving that he has fulfilled his twofold duty to discover and correct dangerous conditions reasonably anticipated in its business activities. Brown v. Winn Dixie Louisiana, Inc., 452 So.2d 685 (La.1984) citing Gonzales v. Winn Dixie Louisiana, Inc., supra; Blanchard v. Schwegmann Giant Supermarket, Inc., 463 So.2d 616 (La.App. 4th Cir., 1984).

The defendant contends that it met its burden of rebutting the presumption of negligence and thus, the jury erred in finding them liable.

The record reveals that on May 2, 1979 Karen Fletcher was employed by the defendant at its Chalmette Store as a porter-ette. She testified that her duties consisted of cleaning an assigned section of the store. She was not the only person who was assigned to keep the store clean. She was also instructed to walk about the store within her section, to check for and clean up spills. She kept a log sheet which indicated her activities during her work day. She indicated that it would take a few minutes to sweep an aisle and if the spill was a large one, more than one person would be required to assist. Ms. Fletcher testified that on the date of this accident she had swept the aisle at 11:23 a.m. and there was nothing on the floor. She stated that she never heard the plaintiff fall but she had just finished sweeping the aisle in question when, while still within this aisle, she turned and saw Ms. Sierra on the floor. Ms. Fletcher further testified that she did not hear glass breaking nor did she see anything on the floor where the plaintiff fell.

Willie Danos, the chief of store security, testified that he estimated that this accident occurred at 11:25 a.m., as he had responded immediately to an announcement over the store loudspeaker, went directly to the aisle where plaintiff had fallen and rendered assistance at that time. He found no witnesses to the accident. He checked Ms. Fletcher’s log and discovered that she had cleaned this aisle at 11:23 a.m., some 2 minutes before the accident.

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Related

Hill v. Coregis Ins. Co.
911 So. 2d 939 (Louisiana Court of Appeal, 2005)
Sierra v. Schwegmann Giant Supermarkets, Inc.
493 So. 2d 640 (Supreme Court of Louisiana, 1986)

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