Thibodeaux v. Winn-Dixie of Louisiana, Inc.

608 So. 2d 673, 1992 La. App. LEXIS 3416, 1992 WL 319684
CourtLouisiana Court of Appeal
DecidedNovember 4, 1992
Docket91-726
StatusPublished
Cited by9 cases

This text of 608 So. 2d 673 (Thibodeaux v. Winn-Dixie of 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
Thibodeaux v. Winn-Dixie of Louisiana, Inc., 608 So. 2d 673, 1992 La. App. LEXIS 3416, 1992 WL 319684 (La. Ct. App. 1992).

Opinion

608 So.2d 673 (1992)

Barbara Thibodeaux & Herbert THIBODEAUX, Plaintiffs-Appellees,
v.
WINN-DIXIE OF LOUISIANA, INC., Defendant-Appellant.

No. 91-726.

Court of Appeal of Louisiana, Third Circuit.

November 4, 1992.

*674 Terrance Hoychick, Funice, for plaintiffs-appellees.

Ziegler, Ackal & Calegero, David J. Calogero, Lafayette, for defendant-appellant.

Before STOKER and YELVERTON, JJ., and COREIL[*], J. Pro Tem.

JOSEPH E. COREIL, Judge Pro Tem.

Plaintiffs, Barbara Thibodeaux and Herbert Thibodeaux, sued defendant, Winn-Dixie of Louisiana, Inc., to recover damages sustained when Barbara fell in a Winn-Dixie store on July 15, 1988. A bench trial was held on March 7 & 8, 1991. The trial court awarded $20,000 for past pain and suffering and loss of consortium; $7,500 for future pain and suffering; $3,237.89 for past loss of wages; $7,876.96 for future loss of wages; $5,876 for past medical expenses; and $5,500 for future medicals. Defendant appeals. We affirm.

Plaintiff, at age 32, was shopping for groceries at a Winn-Dixie store in Eunice, Louisiana. Seeking a certain brand name cereal, she walked the length of the aisle in the cereal section. Somehow, plaintiff became tangled in an empty box and fell to the floor, landing on her knees. Plaintiff sustained contusions to her knees and was initially diagnosed with cervical lumbar strain. She began experiencing symptoms associated with a cervical disc problem and was eventually diagnosed with having two ruptured discs which will eventually require surgery.

DISCUSSION

When a customer proves that a foreign substance or object on a store's floor presented an unreasonable risk of injury which caused a damaging fall, the store must exculpate itself from a presumption of negligence. Brown v. Winn-Dixie Louisiana, Inc., 452 So.2d 685, 686 (La.1984); Kimble v. Wal-Mart Stores, Inc., 539 So.2d 1212 (La.1989).

For cases tried after July 18, 1988, La. R.S. 9:2800.6 provides for merchants' liability[1]:

"§ 2800.6. Liability of a merchant for injuries sustained by a person while on the premises of the merchant.
"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 suit for damages by a person who has suffered damages as the result of a hazardous condition while on the merchant's premises, the person must prove that the accident was caused by a hazardous condition. The burden of proof then shifts to the merchant to prove that he acted in a reasonably prudent manner in exercising the duty of care he owed to the person to keep the premises free of any hazardous conditions.
"C. In exculpating himself from liability under this Subsection, the merchant need not introduce the testimony of every employee of the merchant or any particular proportion thereof, but is only required to introduce the testimony of any employee shown to have actually created the hazardous condition and those employees and management personnel whose job responsibilities included inspection or cleanup of the area where the accident giving rise to the damages occurred.
"D. `Merchant' means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business."

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial court committed manifest error in failing to cast *675 plaintiff with a significant degree of comparative fault.

In its reasons for judgment, the trial court concluded: "Any negligence on the part of plaintiff was so minimal as not to be cognizable at law." After a thorough review of the record, we find that the trial court was not manifestly erroneous in its conclusion.

ASSIGNMENT OF ERROR NO. 2

Winn-Dixie contends that the trial court committed error in casting it with liability, but failing to find the existence of a hazard on the premises. On this point, Winn-Dixie's position is without merit. The testimony and photographs clearly prove a box was left by a Winn-Dixie employee and was protruding into the aisle, partially hidden from the view of the plaintiff. There is no doubt this created a hazard for the unsuspecting shopper. See Thompson v. TG & Y Stores Co., 448 So.2d 895 (La.App. 3 Cir.1984); Arch v. Great Atlantic and Pacific Tea Co., 477 So.2d 896 (La.App. 4 Cir.1985).

Winn-Dixie's store manager, Alton Stanford, testified that he left the empty potato chip box on the floor when he was called to the front. He could not remember what he was called for or how long he had left the box there. He stated that while there is not a store policy pertaining to empty boxes in the aisle, they always do try to keep them out of the aisles.

Plaintiff testified that when she walked down the aisle the only thing she saw was the green cart with the boxes on top of it. She was walking sideways looking for a specific brand of cereal, walked around the green cart, and then became tangled in the empty box. She testified that she never saw the box laying behind the green cart which was loaded with boxes.

Plaintiff's two daughters testified that they were both following plaintiff, pushing the shopping cart. Neither one testified that they could see the box, while admitting that they did see the green cart loaded with the boxes. It is evident that the empty box was somewhat camouflaged by the green cart as it was loaded with identical boxes. This box was a premises hazard created by Winn-Dixie and, under the circumstances, created an unreasonable risk of harm to customers.

ASSIGNMENT OF ERROR NO. 3

Winn-Dixie contends that the trial court erred in awarding damages resulting from the Winn-Dixie accident other than for temporary injury to plaintiff's knees. Winn-Dixie contends that there was no appreciable difference in plaintiff's condition after the fall as compared to before. Basically, the defendant contends that the awarded damages were excessive.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the accident and the injuries complained of. Aucoin v. State Farm Mutual Auto Ins. Co., 505 So.2d 993 (La.App. 3 Cir.1987); Richard v. Walgreen's Louisiana Company, 476 So.2d 1150 (La.App. 3 Cir.1985). It is well settled in our jurisprudence that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Where a defendant's negligent action aggravates a preexisting injury or condition, he must compensate the victim for the full extent of his aggravation. Perniciaro v. Brinch, 384 So.2d 392 (La.1980).

PRIOR MEDICAL HISTORY

Plaintiff was involved in an automobile accident in August of 1975. She visited Dr. Tom Lahaye with complaints of pain between her shoulder blades and left side of her neck. Dr. Lahaye prescribed a tranquilizer for her at the time. In December of 1982, plaintiff was again involved in an automobile accident, and was transported by an ambulance to a hospital, complaining of pain in her right hip and neck. By February of 1983, she was complaining to Dr. Lahaye of headaches that radiated to her shoulders. These complaints eventually dissipated.

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