Treadaway v. Shoney's, Inc.

633 So. 2d 841, 1994 La. App. LEXIS 426, 1994 WL 59953
CourtLouisiana Court of Appeal
DecidedFebruary 25, 1994
Docket93-CA-1688
StatusPublished
Cited by11 cases

This text of 633 So. 2d 841 (Treadaway v. Shoney's, 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
Treadaway v. Shoney's, Inc., 633 So. 2d 841, 1994 La. App. LEXIS 426, 1994 WL 59953 (La. Ct. App. 1994).

Opinion

633 So.2d 841 (1994)

Maydrin TREADAWAY
v.
SHONEY'S, INC.

No. 93-CA-1688.

Court of Appeal of Louisiana, Fourth Circuit.

February 25, 1994.

Aimee Carriere, Julien F. Jurgens, Habans, Bologna & Carriere, New Orleans, for defendant-appellant.

*842 Salvador E. Gutierrez, Jr., Mary Ann Hand, Gutierrez and Hand, Chalmette, for plaintiff-appellee.

Before BYRNES, LOBRANO and WALTZER, JJ.

WALTZER, Judge.

STATEMENT OF THE CASE

The defendant/appellant, Shoney's, is appealing a judgment rendered after a jury trial awarding plaintiff/appellee, Mrs. Maydrin Treadaway, $128,874.61 in damages. However, the damage award was reduced to $85,907.82, due to the fact that the plaintiff/appellee was found to be 33 1/3% negligent.

STATEMENT OF FACTS

The basic facts of the case are not in dispute. On June 5, 1991, Maydrin Treadaway and her husband Benmore met at the Shoney's Restaurant on Highway 39 around 12:30 to have lunch. After lunch, Mr. Treadaway left Mrs. Treadaway at the cash register to pay the bill. While at the register, Mrs. Treadaway noticed a busboy mopping the floor near the cash register area. Mrs. Treadaway decided to wait at the cash register until the busboy wet-mopped and dry-mopped the floor and removed the "wet floor" signs. After he finished and removed the "wet floor" signs, she proceeded to exit the restaurant. As Mrs. Treadaway crossed the threshold leading into the foyer, she slipped and fell injuring her left wrist and left hip area. An EMT unit was called and arrived approximately 10-15 minutes later.

The only factual issue in dispute concerns the condition of the floor in the foyer at the time Mrs. Treadaway slipped. According to two Shoney's employees, Ms. Penny Ioannidis and Ms. Katherine Roques, the floor was clean and dry at the time Mrs. Treadaway slipped. However, Mrs. Treadaway testified that the floor was damp, a fact corroborated by Mr. Troy Lauga, the Emergency Medical Technician, who rendered aid to Mrs. Treadaway at the time of the accident. According to Mr. Lauga, he could see skid marks on the floor where it appeared the plaintiff walked a bit and slid. Moreover, he said that he almost slipped coming into the foyer.

FIRST ASSIGNMENT OF ERROR

The first issue raised on appeal concerns whether or not the plaintiff-appellee carried her burden of proof required by the Louisiana Merchant Liability Act (La.R.S. 9:2800.6). The Act provides the following:

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 damages.
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.

The appellant argues that Mrs. Treadaway did not present any evidence that a dangerous condition existed on the premises, or that said condition caused her accident. The appellant cites the testimony of two witnesses who both corroborated the fact that the floor was clean and dry at the time of the accident.

Further, in support of its position, the appellant cites several cases which hold that the mere occurrence of an accident does not give rise to a presumption of negligence. Harron v. Maryland Casualty Company, 347 F.2d 357, 358 (5th Cir.1965); Eugene v. Wal-Mart Stores, Inc., 570 So.2d 216, 220 (La.App. 5th Cir.1990); Taylor v. Schwegmann Giant Supermarkets, Inc., 586 So.2d *843 641, 643 (La.App. 5th Cir.1991). In addition, appellant cites, Castille v. Great Atlantic & Pacific Tea Co., 591 So.2d 1299 (La.App. 3d Cir.1991), for the proposition that the store owner is not required to maintain entrances, and floors in perfect condition. In Castille, 591 So.2d at 1300, a business invitee of the A & P Food Store said that he tripped on some loose grits that had fallen on the floor. The Third Circuit affirmed the ruling of the trial court by holding that the plaintiff failed to establish that grits on the floor caused him to fall. In addition, there was testimony given that his fall could have resulted from fugue (a temporary flight from reality). Moreover, even if he did establish that the grits were the cause of the slip and fall, the record indicates that the store owner acted in a reasonably prudent manner in attempting to keep the store premises free of hazardous conditions. Just fifteen minutes before the accident, the assistant store manager had walked down that aisle and found no problems. The appellant asserts that the present case is similar to Castille, because as in Castille, Shoney's acted in a reasonably prudent manner by attempting to keep the premises free of hazardous conditions. In their testimony, the Shoney's employees stated that it was each employee's duty to clean up anytime they saw debris on the floor.

The appellee cites Stobart v. State through Dept. or Transp. and Development, 617 So.2d 880 (La.1993), as the controlling law. Stobart echoed the holding of Rosell v. ESCO, 549 So.2d 840 (La.1989), in which the court held that a Court of Appeal may not aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." The Stobart court announced a two-part test for the reversal of a factfinder's determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). * * *

The Louisiana Supreme Court went on further in Stobart to hold the following:

Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. (citations omitted) Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. (citations omitted)
However, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.

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Bluebook (online)
633 So. 2d 841, 1994 La. App. LEXIS 426, 1994 WL 59953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/treadaway-v-shoneys-inc-lactapp-1994.