Ward v. ITT Specialty Risk Services, Inc.

739 So. 2d 251, 1999 La. App. LEXIS 1893, 1999 WL 396006
CourtLouisiana Court of Appeal
DecidedJune 16, 1999
Docket31,990-CA
StatusPublished
Cited by13 cases

This text of 739 So. 2d 251 (Ward v. ITT Specialty Risk Services, 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
Ward v. ITT Specialty Risk Services, Inc., 739 So. 2d 251, 1999 La. App. LEXIS 1893, 1999 WL 396006 (La. Ct. App. 1999).

Opinion

739 So.2d 251 (1999)

Ardie Stephenson WARD, Plaintiff-Appellant,
v.
ITT SPECIALTY RISK SERVICES, INC. Defendant-Appellee.

No. 31,990-CA.

Court of Appeal of Louisiana, Second Circuit.

June 16, 1999.
Rehearing Denied August 12, 1999.

*252 Bobby L. Culpepper, Jonesboro, Counsel for Appellant.

Hudson, Potts & Bernstein by Gordon L. James, Mark J. Neal, Monroe, Counsel for Appellee.

Before GASKINS, CARAWAY and DREW, JJ.

GASKINS, Judge.

The plaintiff, Ardie Stephenson Ward, appeals from a jury verdict rejecting her claim for personal injury damages arising from a slip and fall accident in a Ruston grocery store. For the following reasons, we affirm.

FACTS

On March 4, 1995, at approximately 11:30 a.m., the plaintiff, Ardie Stephenson Ward, and her daughter, Billie Tinsley, met at the Super One Food Store in Ruston to do their routine grocery shopping. It had been raining that morning. As they entered the store, Ms. Tinsley got a shopping cart for herself and one for her mother. As the plaintiff reached for her shopping cart, she slipped and fell in some water that had accumulated near the carts.

The store manager, Stephen Gilpin, was standing approximately 15 feet away from the plaintiff when the accident occurred. He talked with the plaintiff immediately after the accident and filled out an accident report. He stated that the plaintiff complained of neck and shoulder pain at that time.

The plaintiff filed suit on January 6, 1996.[1] She claimed that at the time of the accident there were no signs in the store indicating that the floor was wet. She asserted that as a result of the accident, she suffered a broken coccyx (tail bone) as well as pain in her lower back, hip and foot. She also complained that she suffered a torn rotator cuff in her shoulder that required surgery and that she had pain in her neck. She further contended that her fall aggravated a preexisting cystocele and rectocele. She maintained that because of her injuries, she can no longer walk long distances. She is also unable to do yard work, garden, vacuum, mop, or make beds. She sought to recover for *253 past and future medical expenses as well as for pain and suffering.

The matter was tried before a twelve-person jury on March 31, 1998. The jury returned an 11-1 verdict finding that the plaintiff did not prove by a preponderance of the evidence that Super One failed to exercise reasonable care under the circumstances. On April 21, 1998, the trial court signed a verdict in favor of Brookshire Grocery Company and Super One, dismissing the plaintiff's claims. The plaintiff appealed the trial court judgment.

On appeal the plaintiff claims that the jury erred in finding that she did not carry her burden of proving by a preponderance of the evidence that the defendant failed to exercise reasonable care under the circumstances. According to the plaintiff, on the morning of the accident, there had been some rainfall. The defendant used only wet floor signs and three extra mats placed in the general area of the front entrance to deal with the rain. However, the plaintiff's daughter disputes whether any warning signs were in place at the time of the accident. The plaintiff objects to the fact that no effort was made to wipe excess water from the grocery carts being returned from the outside. She also argues that no records were introduced to show routine checking and/or mopping of the entrance. She claims that the accident report simply shows that there was a lapse of 39 minutes between the last check of the floor and the plaintiff's fall. Therefore, she claims that Super One failed to exercise reasonable care in keeping its floors reasonably safe as required by La. R.S. 9:2800.6.

LEGAL PRINCIPLES

The law in effect at the time of this March 4, 1995 accident was the prior version of La. R.S. 9:2800.6 which stated:

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, in addition to all other elements of his cause of action, all of the following:
(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.
(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.[2]

In White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081, the Louisiana Supreme Court stated that, in addition to proving all other elements of the cause of action, the claimant must prove each of the enumerated requirements of *254 La. R.S. 9:2800.6(B). Therefore, in order for the plaintiff to recover in the present case, she had the burden of proving that a condition presenting an unreasonable risk of harm existed and that the risk of harm was reasonably foreseeable; that the merchant either created or had actual or constructive notice of the condition which caused the damage prior to the occurrence; and that the merchant failed to exercise reasonable care.

These principles require merchants to exercise reasonable care to protect those who enter the store and extend to keeping the premises safe from unreasonable risks of harm and warning persons of known dangers. Leonard v. Wal-Mart Stores, Inc., 97 2154 (La.App. 1st Cir. 11/6/98), 721 So.2d 1059. Although the owner of a commercial establishment has an affirmative duty to keep the premises in a safe condition, he is not the insurer of the safety of his patrons. Tanner v. Brookshire Grocery Company, 29,276 (La. App.2d Cir.4/2/97), 691 So.2d 871; Marshall v. Sam's Wholesale Warehouse, Inc., 626 So.2d 844 (La.App. 2d Cir.1993), writ denied 93-2921 (La.1/28/94), 630 So.2d 796. Nor is he liable every time an accident happens. Leonard v. Wal-Mart Stores, Inc., supra.

The merchant's duty of care requires that reasonable protective measures, including periodic inspections, are undertaken to ensure that the premises are kept free from substances that might cause a customer to fall. Stevens v. Winn-Dixie of Louisiana, 95 0435 (La. App. 1st Cir. 11/9/95), 664 So.2d 1207. Whether these measures are reasonable must be determined in light of the circumstances of each case. Holland v. Winn Dixie Louisiana, Inc., 94 2142 (La.App. 1st Cir. 6/23/95), 658 So.2d 815.

A hazardous condition is one which creates an unreasonable risk of harm to customers under the circumstances.

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Bluebook (online)
739 So. 2d 251, 1999 La. App. LEXIS 1893, 1999 WL 396006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-itt-specialty-risk-services-inc-lactapp-1999.