Thomas v. K-Mart Corp.

525 So. 2d 24, 1988 WL 6726
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1988
Docket87-31
StatusPublished
Cited by7 cases

This text of 525 So. 2d 24 (Thomas v. K-Mart Corp.) 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
Thomas v. K-Mart Corp., 525 So. 2d 24, 1988 WL 6726 (La. Ct. App. 1988).

Opinion

525 So.2d 24 (1988)

James THOMAS, Jr. & Brenda Thomas, Plaintiffs-Appellants,
v.
K-MART CORPORATION, Defendant-Appellee.

No. 87-31.

Court of Appeal of Louisiana, Third Circuit.

February 3, 1988.
Writ Denied March 25, 1988.

*25 Kenneth N. Hawkins, Bob Broussard, Lafayette, for plaintiffs-appellants.

Allen, Gooch, Bourgeois, Breaux, Robison & Theunissen, P.C., Marjorie G. O'Connor, Lafayette, for defendant-appellee.

Before GUIDRY and YELVERTON, JJ., and SWIFT[*], J. Pro Tem.

GUIDRY, Judge.

This is a slip and fall case. Rosalyn Thomas injured herself on June 10, 1985, while shopping, when she allegedly slipped and fell on Pine-Sol cleaning liquid which was on the floor in an aisle of the K-Mart store in Lafayette, Louisiana. James Thomas, Jr. and Brenda Thomas, on behalf of their minor child, Rosalyn, brought this damage suit against defendant, K-Mart Corporation.

After a hearing on the merits, the trial judge concluded that Rosalyn Thomas broke the bottle herself and caused the spill and, in any event, "plaintiffs failed to prove their case by a preponderance of the evidence". Accordingly, the trial court rendered judgment in favor of K-Mart dismissing plaintiffs' suit at their costs. Plaintiffs appealed.

FACTS

On June 10, 1985, plaintiff, Rosalyn Thomas, went into defendant's store with her sister, Laura Henry, to purchase some household cleaning items. Laura and Rosalyn made their way through several departments before Laura asked Rosalyn to obtain a bottle of Pine-Sol in the next aisle. Rosalyn proceeded to the next aisle. According to Rosalyn's testimony, while looking for the Pine-Sol, she slipped on what she later determined to be a spill of Pine-Sol cleaning liquid. She testified that she did not see the Pine-Sol or the broken bottle before she fell. Rosalyn was alone when she allegedly slipped and fell, however, Laura heeded her cry for help and, upon arriving on the scene, helped her off the floor. Store personnel were called and the Loss Prevention Manager filled out an accident report. The following day Laura took Rosalyn to a Walk-In Clinic. Rosalyn was seen by Dr. Henry J. Kaufman who found contusions to the left hip and knee and muscle spasm in the lumbar area. The latter finding prompted his diagnosis that Rosalyn suffered from a mild strain of the lower back which was consistent with the slip and fall accident described to him.

*26 LIABILITY

On appeal, plaintiffs urge that the trial court manifestly erred in finding that Rosalyn did not slip and fall and, in fact, broke the bottle which caused the Pine-Sol spill.

All of the witnesses who testified agreed that there was a spill of Pine-Sol on the floor. Rosalyn testified that she slipped and fell when she stepped into the spill. Laura testified that she came to Rosalyn's assistance in response to hearing the sound of a fall. Upon entering the aisle, Laura stated that she saw Rosalyn laying on the floor with her left leg twisted underneath her buttocks. Laura then helped Rosalyn up from the floor. Several witnesses, who appeared on the scene shortly following Rosalyn's alleged fall, testified that Rosalyn had a single spot/stain of Pine-Sol on the rear of her skirt in the area of her left hip. One of these witnesses, Mary Andrus, a former sales clerk employed at the involved K-Mart store on the date and time of the accident, stated that Rosalyn was holding the bottom part of the broken bottle in her left hand which was positioned near the area of her left hip. All of these witnesses, although admitting the presence of a Pine-Sol spill on the floor, testified that they saw no evidence that a person had walked through or slipped in the spill.

In dismissing plaintiffs' suit, the trial judge apparently rejected the testimony of Rosalyn and her sister, Laura, and accepted the testimony of defendant's witnesses which he characterized as "truthful and accurate". Presumably, the trial court concluded that Rosalyn did not slip and fall in the Pine-Sol spill on the basis of the testimony of the several witnesses to the effect that they observed the spill to be a "clean spill" which had been undisturbed and on the testimony of Mary Andrus to the effect that when she arrived on the scene, Rosalyn was holding the bottom part of a broken bottle in her hand which was positioned near the area of her left hip.

We have carefully considered this record, under the manifest error standard of appellate review, and conclude that the trial court clearly erred when it determined that plaintiff, Rosalyn Thomas, failed to establish, by a preponderance of the credible evidence, that she slipped and fell in a spill of Pine Sol on the floor of defendant's store.

We discern no significant conflict in the testimony of the witnesses who testified. All witnesses testified that a spill of Pine-Sol was on the floor. Rosalyn testified that she slipped and fell in a spill of Pine-Sol. Rosalyn was alone at the time of her fall and there is no evidence in the record directly contradicting her statement in this regard. In our view, the testimony of defendant's several witnesses, that the spill was a "clean spill" with no obvious signs that a person had stepped therein, is not necessarily in conflict with Rosalyn's testimony and certainly not such as to require a total rejection of same. Admittedly, defendant's several witnesses appeared on the scene several minutes after Rosalyn's slip and fall. It would not be unreasonable to conclude that, with the passage of time, the liquid spill, seeking its own level, erased any sign of having been disturbed. Another reasonable hypothesis is that when the bottle of Pine-Sol fell from the shelf, the liquid splattered such that there may have been one large accumulation and other small spills which would cause a slip and fall yet leave the large accumulation of liquid undisturbed.

Likewise, we do not consider the testimony of Mary Andrus so material as to require a complete rejection of Rosalyn's testimony. In our review of this record, we accept as credible the testimony of Mary Andrus that, when she arrived on the scene, Rosalyn was holding the bottom part of a broken Pine-Sol bottle against her left hip, and we accept this fact as a reasonable explanation for the presence of the spot/stain on Rosalyn's skirt.[1] However, we do not consider these facts as proof that Rosalyn broke the bottle which caused the spill and/or that she did not slip and fall. The fact that Rosalyn was holding the bottom part of a broken Pine-Sol bottle does *27 not establish that she broke the bottle. The conclusion that Rosalyn broke the bottle and then deliberately slipped and fell in the Pine-Sol liquid would defy imagination. On the other hand, the conclusion that Rosalyn broke the bottle and then feigned a slip and fall would be consistent with the basic finding except for the injuries sustained by Rosalyn which were confirmed by Dr. Henry Kaufman in an examination of Rosalyn conducted the following morning. In his written reasons for judgment, the trial judge made no reference whatever to the testimony of Dr. Kaufman.

Dr. Kaufman testified that Rosalyn gave him a history of having slipped and fell the previous day in the K-Mart store. His examination disclosed objective signs of injury which, he testified, were consistent with a slip and fall accident. In our opinion, Dr. Kaufman's testimony corroborates the testimony of Rosalyn and her sister, Laura, and serves to dispel any seeming conflict in the evidence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hewitt v. Lafayette City-Parish Consol. Gov't
243 So. 3d 79 (Louisiana Court of Appeal, 2018)
Uletom Hewitt v. City of Lafayette
Louisiana Court of Appeal, 2018
Peck v. Wal-Mart Stores, Inc.
682 So. 2d 974 (Louisiana Court of Appeal, 1996)
Rowe v. State Farm Mut. Auto. Ins. Co.
670 So. 2d 718 (Louisiana Court of Appeal, 1996)
Boudreaux v. Blank
664 So. 2d 705 (Louisiana Court of Appeal, 1995)
Lewis v. Wal-Mart Stores, Inc.
546 So. 2d 267 (Louisiana Court of Appeal, 1989)
Thomas v. K-Mart Corp.
525 So. 2d 1045 (Supreme Court of Louisiana, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
525 So. 2d 24, 1988 WL 6726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-k-mart-corp-lactapp-1988.