Stepherson v. Wal-Mart Stores, Inc.

785 So. 2d 950, 2001 La. App. LEXIS 690, 2001 WL 323142
CourtLouisiana Court of Appeal
DecidedApril 4, 2001
Docket34,547-CA
StatusPublished
Cited by6 cases

This text of 785 So. 2d 950 (Stepherson v. Wal-Mart 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
Stepherson v. Wal-Mart Stores, Inc., 785 So. 2d 950, 2001 La. App. LEXIS 690, 2001 WL 323142 (La. Ct. App. 2001).

Opinion

785 So.2d 950 (2001)

Kellie STEPHERSON, Plaintiff-Appellee,
v.
WAL-MART STORES, INC., Defendant-Appellant.

No. 34,547-CA.

Court of Appeal of Louisiana, Second Circuit.

April 4, 2001.

*952 Barham & Warner, by Vicki C. Warner, Lucien H. Marioneaux, Jr., Counsel for Appellant.

C. Daniel Street, Counsel for Appellee.

Before BROWN, CARAWAY and DREW, JJ.

BROWN, J.,

Defendant, Wal-Mart Stores, Inc., has appealed a judgment in favor of plaintiff, Kellie Stepherson, awarding her damages for injuries she sustained when a dumbbell rolled off a shelf and fell onto her foot. For the reasons set forth below, we affirm.

*953 Facts and Procedural Background

On August 23, 1997, plaintiff, Kellie Stepherson, and her sons (10-year-old triplets) were shopping at the Wal-Mart Supercenter in Monroe, Louisiana. While her boys were looking at bicycles, Mrs. Stepherson was checking out the exercise equipment. Mrs. Stepherson picked up a dumbbell from a display shelf. The metal shelf was flat, horizontal, and approximately 16 to 22 inches deep. The shelf did not have any type of restraining device such as a lip or guard on its edge. Dumbbells are round on each end with a handle in between; the weights Mrs. Stepherson was looking at did have a small, flat area on each of the rounded ends.

At the time Mrs. Stepherson examined the dumbbells, they were stacked on the shelf. The height of the particular shelf from which she took the dumbbell was disputed by Wal-Mart; however, when asked if other dumbbells were located underneath the shelf, Mrs. Stepherson stated that there probably were "because they had a whole section of them ... but most of the ones I noticed were right there at my reaching level." Specifically, Mrs. Stepherson testified:

They (dumbbells) ranged in weight from five to eight, to ten pounds and they were displayed and stacked upon a shelf that was about chest high to me, not in a box. There were some over to the right that were in a box. But these were not. They were just stacked up there. (Emphasis added).

And later, on cross examination, Mrs. Stepherson stated:

I just put it (dumbbell) back and I guess I had turned towards my buggy. And then I did not actually see it roll off. It just rolled off and hit my toe.

The dumbbell shattered and broke Mrs. Stepherson's left big toe. She stated that her toe immediately turned black and the pain caused her to almost pass out.

The Wal-Mart manager who investigated the accident, Mark Florita, reported that Mrs. Stepherson indicated to him that she was injured by a weight which fell from a shelf approximately one foot off the floor. Florita also testified that the management was aware that the dumbbells were being stacked one upon another by Wal-Mart employees as well as customers. No photographs of the shelving were taken. Wal-Mart disputed the height from which the dumbell fell based solely on what Florita wrote in his report.

After taking information from Mrs. Stepherson, Florita had her taken to her car in a wheelchair. From there she drove to the hospital for treatment at the emergency room. Mrs. Stepherson sought followup care from her family physician.

Thereafter, Mrs. Stepherson filed the instant action against Wal-Mart, seeking damages for her injuries. A bench trial was held on February 3, 2000. On July 7, 2000, the trial court rendered judgment in favor of Mrs. Stepherson, awarding general damages in the amount of $16,500 and specials in the amount of $561.25. It is from this judgment that Wal-Mart has appealed.

Discussion

Liability

Wal-Mart first asserts that the trial court erred in finding the store liable for Mrs. Stepherson's injuries. According to Wal-Mart, Mrs. Stepherson failed to establish that a hazardous condition or defect existed. Alternatively, it is Wal-Mart's position that Mrs. Stepherson was comparatively negligent and that the trial court erred in finding no fault on her part.

La.R.S. 9:2800.6 provides in pertinent part:

*954 (A) A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.

Section 2800.6(B) delineates a merchant's liability for falls on the premises and is inapplicable to falling merchandise cases. In Edwards v. K&B, Inc., 26,002 (La.App.2d Cir.08/17/94), 641 So.2d 1040, 1045, we stated:

In our view, § 2800.6(B), as amended in 1990, did not change the law applicable to falling merchandise claims. These claims continue to be governed by the principles stated in § 2800.6(A) and in Bell, supra (Bell v. Bestyet Discount Foods, 372 So.2d 781, (La.App. 2d Cir. 1979)). The merchant must use reasonable care to keep his aisles, passageways and floors in a reasonably safe condition, free of hazards which may cause injury. § 2800.6(A). A plaintiff who is injured by falling merchandise must prove that a premise hazard existed, and may do so by circumstantial evidence. Once the plaintiff proves a prima facie premise hazard, the defendant has the burden to exculpate itself from fault by showing that it used reasonable care to avoid such hazards by means such as periodic cleanup and inspection procedures. Bell, supra, 372 So.2d at 784; Tobin v. Wal-Mart Stores, Inc., supra (Tobin v. Wal-Mart Stores, Inc., 575 So.2d 946 (La.App. 2d Cir.1991)); Courville v. Piggly Wiggly Bunkie Co., 614 So.2d 1366 (La.App. 3d Cir.1993).

Wal-Mart Supercenter is a large retail warehouse. Its practice is to stack and display merchandise so that it is freely accessible to customers who are encouraged to handle and replace the goods. As a consequence of this profitable strategy, injuries from falling merchandise occur. The question presented is how far the storekeeper must go to protect its customers against this consequence of the self-service merchandising system.

The merchant has a duty to safely shelve or display its merchandise to include the foreseeable removal and replacement of the goods by its customers. The store has a responsibility to check the shelves periodically to ensure that the merchandise remains in a safe condition. Smith v. Toys "R" Us, Inc., 98-2085 (La.11/30/99), 754 So.2d 209; Belgard v. Brookshire Grocery Co., 00-0058 (La.App. 3d Cir.10/12/00), 771 So.2d 670; Mannina v. Wal-Mart Stores, Inc., 99-1102 (La.App. 5th Cir.02/29/00), 757 So.2d 98, writ denied, 00-0917 (La.06/02/00), 763 So.2d 597.

To prove the existence of a premise hazard, a plaintiff in a "falling merchandise" case must demonstrate that: (1) she did not cause the merchandise to fall; (2) another customer in the aisle at that moment did not cause the merchandise to fall; and (3) the merchant's negligence was the cause of the accident, i.e., that either a store employee or another shopper placed the merchandise in an unsafe position on the shelf or otherwise caused the merchandise to be in such a precarious position that eventually, it does fall. Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84; Smith, supra; Mannina, supra.

As emphasized by the supreme court in the recent Davis and Smith decisions, circumstantial evidence is sufficient to show that a premises hazard existed. See also Edwards v.

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Bluebook (online)
785 So. 2d 950, 2001 La. App. LEXIS 690, 2001 WL 323142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stepherson-v-wal-mart-stores-inc-lactapp-2001.