Stevens v. Winn-Dixie of Louisiana

664 So. 2d 1207, 95 La.App. 1 Cir. 0435, 1995 La. App. LEXIS 3170, 1995 WL 669418
CourtLouisiana Court of Appeal
DecidedNovember 9, 1995
Docket95 CA 0435
StatusPublished
Cited by45 cases

This text of 664 So. 2d 1207 (Stevens v. Winn-Dixie of Louisiana) 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
Stevens v. Winn-Dixie of Louisiana, 664 So. 2d 1207, 95 La.App. 1 Cir. 0435, 1995 La. App. LEXIS 3170, 1995 WL 669418 (La. Ct. App. 1995).

Opinion

664 So.2d 1207 (1995)

Alice STEVENS
v.
WINN-DIXIE OF LOUISIANA.

No. 95 CA 0435.

Court of Appeal of Louisiana, First Circuit.

November 9, 1995.

*1209 A. Wayne Stewart, Albany, for Appellee, Alice Stevens.

C. Michael Futrell, Christopher Matchett, Baton Rouge, for Appellant, Winn Dixie, LA, Inc.

Before LOTTINGER, GONZALES and FITZSIMMONS, JJ.

GONZALES, Judge.

This is an appeal from a judgment rendered in a slip and fall case. Defendant, Winn Dixie Louisiana, Inc. (Winn Dixie), challenges the trial court's determination that Winn Dixie was at fault, and the amount of damages awarded to the plaintiff, Alice Stevens.

FACTS AND PROCEDURAL HISTORY

On October 20, 1991, Ms. Stevens slipped and fell in a hallway leading to the restroom at a Winn Dixie store in Walker, Louisiana, resulting in injuries to her neck and back.

On February 10, 1992, Ms. Stevens filed the instant suit against Winn Dixie and Ronald Adams,[1] the manager of the store. The defendants answered the suit and included a prayer that the case be tried to a jury. *1210 According to a trial court minute entry, on September 7, 1993, Ms. Stevens' attorney stipulated in open court that the amount of the case was reduced to $20,000.00 or less. A bench trial was held on April 25, 1994. At the end of the presentation of the plaintiff's case, the trial court granted a defense motion for directed verdict as to Ronald Adams. The defense then presented its case and the trial court took the matter under advisement. On October 6, 1994, the trial court issued reasons for judgment finding that Winn Dixie and Ms. Stevens were each 50% at fault in the accident and assessed Ms. Stevens' damages at $30,000.00. On October 20, 1994, the trial court signed a judgment in favor of Ms. Stevens and against Winn Dixie for $15,000.00.

Winn Dixie appeals the adverse judgment, asserting the following assignments of error:

(1) The trial court erred in finding Winn Dixie at fault in the accident.
(2) The trial court erred in the amount of damages awarded to Ms. Stevens in three respects. First, the award of $30,000.00 exceeds the stipulation made by Ms. Stevens' attorney that the amount of the case was less than $20,000.00. Second, the award included special damages which were not specifically plead. Third, the award was excessive for the minimal damages sustained by Ms. Stevens.

LIABILITY OF WINN DIXIE

The accident in this case occurred on October 20, 1991. Thus, the applicable burden of proof for a plaintiff in a slip and fall case is set forth in La.R.S. 9:2800.6, as amended by 1990 La.Acts No. 1025, § 1, effective September 1, 1990.[2] The statute provides as follows:

Sec. 2800.6. Burden of proof in claims against merchants

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.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, and in addition to all other elements of his cause of action, that:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and
(3) The merchant failed to exercise reasonable care.
C. Definitions:
(1) "Constructive notice" means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.
(2) "Merchant" means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322 or 2695.

As has been pointed out by the Louisiana Supreme Court, the current version of La.R.S. 9:2800.6 is a "decidedly pro-defendant statute." Welch v. Winn-Dixie Louisiana, Inc., 94-2331 (La. 5/22/95), 655 So.2d 309, 314. It places a strict burden upon a slip and fall plaintiff to prove that she slipped and fell due to a condition on defendant's premises which presented an unreasonable risk of harm, that the risk of the harm was reasonably foreseeable, that defendant either created the condition or had actual or constructive notice of the condition prior to the occurrence, and that defendant failed to exercise reasonable care.

*1211 Ms. Stevens testified that she was taking her two daughters to the restroom when she fell. She stated that as she rounded the corner into the hallway where the restrooms were located, she saw a Winn Dixie employee backing out of the men's restroom with what appeared to be a mop in his hand. Although Ms. Stevens admitted that there was a wet floor sign in the area, she testified that it was not positioned in the middle of the hallway, but was folded into a closed position and was leaning against the wall near the men's bathroom. Ms. Stevens slipped and fell in the hallway between the men's restroom and the women's restroom. She testified that, after she fell, she asked the employee why he had not warned her that the floor was wet, and that the employee apologized.

The testimony of Tony Licciardi, the Winn Dixie employee who was mopping the floor, contradicts the testimony of Ms. Stevens. According to Licciardi, on the day in question, he was instructed by Gerrit Sanchez, Jr., the assistant manager of the Winn Dixie, to mop the bathroom area of the store. Licciardi testified that he placed a wet floor cone sign in the hallway between the men's restroom and the women's restroom and was mopping the hallway in front of the men's bathroom with a yellow mop bucket which also was printed with a wet floor warning. According to Licciardi, Ms. Stevens had a young girl and a young boy with her as she entered the hallway to the restrooms and that the young boy was pulling Ms. Stevens along.[3] Licciardi testified that he heard Ms. Stevens tell the young girl to watch the floor because it was wet. The young boy then broke loose from Ms. Stevens grasp and began to run away. As Ms. Stevens chased the young boy, she slipped and fell. Licciardi testified that Ms. Stevens was wearing high heeled shoes when she fell. Although Licciardi acknowledged that Ms. Stevens asked him why he failed to warn her that the floor was wet, he testified that he responded by pointing out that there was a wet floor cone sign plainly within Ms. Stevens' view in the middle of the hallway.

Gerrit Sanchez's testimony supports Licciardi's testimony. According to Sanchez, he was in the store's office when Licciardi came and told him about the accident. When Sanchez reached the scene, there was a wet floor cone sign in the middle of the hallway just past the men's restroom, and there was a mop bucket propping open the door where Licciardi had been mopping near the men's restroom. Sanchez saw Ms. Stevens on the floor just past the wet floor cone sign. Sanchez confirmed that Ms.

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Bluebook (online)
664 So. 2d 1207, 95 La.App. 1 Cir. 0435, 1995 La. App. LEXIS 3170, 1995 WL 669418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-v-winn-dixie-of-louisiana-lactapp-1995.