Lashondra Jones v. Market Basket Stores, Inc. (Parish of Calcasieu) Appellate Court Decision Vacated; District Court Judgment Reinstated; General Damage Award

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #015
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 17th day of March, 2023 are as follows:
BY Hughes, J.:
2022-C-00841 LASHONDRA JONES VS. MARKET BASKET STORES, INC. (Parish
of Calcasieu)
APPELLATE COURT DECISION VACATED; DISTRICT COURT
JUDGMENT REINSTATED; GENERAL DAMAGE AWARD
AFFIRMED. SEE OPINION.
Weimer, C.J., additionally concurs and assigns reasons.

SUPREME COURT OF LOUISIANA
No. 2022-CC-00841
LASHONDRA JONES
VERSUS
MARKET BASKET STORES, INC.
On Writ of Certiorari to the Court of Appeal,
Third Circuit, Parish of Calcasieu
HUGHES, J.
The district court awarded damages to the plaintiff who was allegedly injured
when she stepped on a wooden pallet with an attached pallet guard , holding a bulk
watermelon bin, to reach a watermelon in the bottom of the bin, and the pallet guard
collapsed. The defendant appealed , and t he appellate court reversed the award,
finding manifest error in the factual findings of the district court requiring de novo
review and concluding that the watermelon display did not present an unreasonable
risk of harm to the plaintiff. After a t horough review, we conclude there was no
manifest error in the district court ’s finding of negligence on the part of the
defendant; therefore, the appellate court erred in its ruling, and we reverse.
FACTS AND PROCEDURAL HISTORY
As context for the trial testimony discussed hereinafter, we initially note that
the July 12, 2017 accident site at issue in this case is depicted in the following two
photographs, introduced into evidence during the December 4, 2019 trial of the
matter:

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As these photographs show, the re are words and/or letters in the graphical
arrows at each corner of these two cardboard watermelon bins. On the bin on the
left (shown more fully in the top photograph, Plaintiff’s Exhibit 5), the word “STEP”
can be seen contained within the lower portion of the arrows at the corners of the

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box. On the bin on the right (shown more fully in the lower photograph), the letter
“W” appears within the top of the arrows, and only the letters “TEP” can be seen in
the bottom of the arrows. The wooden pallets are visible under each watermelon
bin, and the darker planks seen in the foreground were identified at trial as parts of
a “pallet guard,” which had been affixed to the pallets prior to the accident.
During the trial, plaintiff Lashondra Jones testified that, at the time of the
accident, she had been a school teacher for more than five years in Calcasieu Parish,
and she also worked part time at Lake Charles Memorial Hospital as a PBX operator.
Previously, she had worked as an assistant manager at Walmart.1
Ms. Jones testified that, on the day of the July 12, 2017 accident, she and her
son, Devin Morgan, went to the Market Basket store to purchase a watermelon and
that, when they approached one of the two watermelon bins depicted in the evidence
photographs, it contained only watermelons remaining in the bottom of the bi n so
she stepped on the “black barrier around the pallet ” (later identified as a “pallet
guard”) so she could reach a watermelon, and “it gave way.” Ms. Jones testified that
she had no reason to think that she was not supposed to step on the pallet guard, as
there were no signs warning not to step on it and she did not know what it was at the
time. When the pallet guard gave way, Ms. Jones stated that she fell against the
watermelon bin and injured her right side, back, and leg.
Ms. Jones indicated that the pallet guard appeared to be “fully formed like a
LEGO.” She also stated that she had stepped onto the pallet and pallet guard, which
she indicated was “around the pallet” that was “underneath the box” of watermelons,
on the side that was depicted in the evidence photograph as being “all broken up,”

1 Although Ms. Jones admitted she had experience in employee and customer safety when working
at Walmart, she maintained that she had never before seen a bin and pallet with a pallet guard like
that she encountered at the Market Basket grocery store , since Walmart did not display
watermelons in that way when she worked there , and bins displaying merchandise at Walmart
were kept filled to ensure customer safety.

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after the accident. Ms. Jones identified the pallet guard that was “broken up” in the
evidence photographs as the one she stepped on to get a watermelon out of the bin
immediately before the accident; she reiterated that after she stepped on the pallet
guard it “gave away” and “broke apart,” and she fell with her right side hitting the
side of the watermelon bin . When asked by defense counsel whether she stepped
“on it in the middle of the box or on the corner of the box,” Ms. Jones responded, “I
don’t remember.” Ms. Jones testified that she only remembered stepping on the
pallet guard while she was “facing the watermelon bin … like you go to pick up a
watermelon.” Ms. Jones testified that she assumed, since the pallet guard was
around the pallet and she had never seen a pallet guard before, that it was a step.
At trial, on being shown the Market Basket written accident report, completed
on July 25, 2017 by Market Basket assistant manager Tammy Gleave, Ms. Jones
denied writing any part of it. Ms. Jones further testified that the statement in the
accident report that “[s]he stepped on pallet to reach inside watermelon bin, slipped
on black cover and fell” was not accurate; Ms. Jones testified that what actually
happened was the pallet guard “collapsed underneath [her].” (Emphasis added.)
When Ms. Jones was questioned by defense counsel at trial about whether,
from her prior experience working at Walmart, she knew it was unsafe to climb on
shelves, she agreed; however, when defense counsel asked whether it was unsafe “to
climb on pallets” (emphasis added), Ms. Jones did not express agreement. Rather,
she indicated that she had never seen a pallet with a pallet guard like that included
in the watermelon display she encountered at the Market Basket on the da y of her
accident. Defense counsel then expressly asked Ms. Jones whether, during her prior
employment with Walmart, “you would have never stepped on a pallet, would you?”
Ms. Jones responded, “Yes, I would. ”2 Defense counsel further question ed Ms.

2 We note that Ms. Jones did indicate that, at Walmart, it was not necessary to step on a pallet to
reach merchandise, because she stated that Walmart employees “were taught to keep our bins filled
to where it doesn ’t create a safety hazard for the customer. ” Although the defense contended

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Jones about whether she understood that the red markings on the side of the Market
Basket watermelon bin s were safety warnings, but she denied seeing any safety
warnings on the watermelon bins.
Ms. Jones additionally testified that, at the time of the accident, there were no
Market Basket employees in the area where her accident occurred, but that her son
went and found a Market Basket manager, to whom Ms. Jones described the accident
and showed the injured area on her right side. A photograph, taken after the accident
and introduced into evidence , shows marks and skin discoloration on Ms. Jones ’
torso. Ms. Jones confirmed in her testimony that the photograph accurately reflected
the injury to her right side immediately after the accident in the Market Basket store.
Ms. Jones further stated that she sought treatment at St. Patrick’s Hospital
emergency room after the accident , either that day or the next day. She said the
emergency room doctor diagnosed contusions and directed her to follow-up with her
primary care doctor, Dr. Chadha, who thereafter recommended physical therapy
with West Calcasieu Cameron Hospital. Ms. Jones testified that, as a result of the
accident, she sustained injuries to her lower back, right hip, and right leg, for which
she received treatment for six months, including physical therapy, which consisted
of stretching, bending, and other exercises to alleviate her muscle spasms and pain.
She indicated that she was also directed by the treating physical therapist to utilize
these physical therapy modalities at home as well. Ms. Jones further related that she
used over-the-counter pain relievers, such as ibuprofen and Aleve.
In addition, Ms. Jones testified that her husband had to take over doing some
of the household chores she had previously taken care of; particularly, walking the
dog, since she was not able to jog as it caused an increase in her pain. Ms. Jones
also attributed her subsequent weight gain to her inability to walk the dog and/or jog.

during oral argument and in brief to this court that the plaintiff “knew better than to step on a pallet
but did it anyway,” we find no evidence in the record to support this assertion.

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Ms. Jones further stated that she became depressed due to the restriction of her
activities on account of pain from her injuries.
The plaintiff’s son, Devin Morgan, who was fifteen years old at the time of
the December 4, 2019 trial, testified that he was with his mother at the Market Basket
on the date of her accident, but he was “on [his] phone and then [he] heard something
fall.” Devin said his mother “fell by the watermelon bin,” and “she was in pain so I
helped her up.” Devin confirmed that his mother hurt herself when she fell, and he
thought it was “mostly her back.”
The plaintiff ’s husband, Darre Morgan, testified that when his wife came
home from the store on the day of the accident, she was in “a lot of pain. ” Mr.
Morgan further stated that the plaintiff showed him the injury to her side, and he saw
that her skin was broken and bruised; he verified that the evidence photograph of the
plaintiff’s side accurately reflected her injuries that day. Mr. Morgan also testified
that the plaintiff was complaining that her back and her leg were hurting. Mr.
Morgan indicated that Ms. Jones r eceived treatment for her injuries for about six
months and that the treatment included physical therapy. Mr. Morgan further
testified: that Ms. Jones would often cry out in pain when moving an injured part of
her body; that he was would massage Ms. Jone s’ injuries to ease the pain ; that he
washed dishes and cleaned the house when she could not do so because of her
injuries; that she was unable to jog or walk the dog as she did before ; and that the
lack of exercise caused her to gain a lot of weight. Mr. Morgan further testified that
his wife’s constant pain made her irritable, causing them to argue and not get along
with one another, which led to a lot of “confusion” in the household.
The plaintiff’s medical records, submitted into evidence, confirmed that she
sought treatment on July 13, 2017 at St. Patrick’s Hospital, complaining of pain and
tenderness to her right hip, ribs, and knee as a result of a fall the previous day at a
grocery store while reaching for a watermelon; she was diagnosed with contusions

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and prescribed pain medication. The medical records of Chadha Medical Clinic
verified that Ms. Jones was treated by Dr. Chadha for lower back and right leg pain
between July of 2017 and December of 2017. Additionally, West Calcasieu
Cameron Hospital records showed that Ms. Jones received approximately thirteen
physical therapy treatments between October 11, 2017 and December 20, 2017.
Market Basket assistant manager Tammy Gleave completed the Market
Basket accident report introduced into evidence at trial, on July 25, 2017 (some
thirteen days after the July 12, 2017 accident ), though she did not witness the
accident and she was unaware of any witnesses to the accident . Ms. Gleave
acknowledged in her trial testimony that, in the accident report , she recorded
statements made to her by Ms. Jones about the accident to the best of her
recollection. However, there were several details about the watermelon display
involved in the accident that, when asked about at trial, Ms. Gleave was unable to
remember (i.e., whether pallet guards had been used on the watermelon display in
question; whether each individual pallet has its own pallet guard or if one pallet
guard can be expanded to cover two pallets ; and whether she had ever “expanded”
pallet guards before). In addition, when asked why she did not prepare the accident
report immediately after the accident, instead of thirteen days later, Ms. Gleave
replied, “I don’t remember. I was probably busy. I don ’t know.” Although some
terminology used by Ms. Gleave varied from that used by Ms. Jones, there were no
material differences that were not explained or clarified by the testimony of the
plaintiff, who the district court judge expressly found credible.
Roger Hebert, a Market Basket division manager who was familiar with the
company’s safety policies and procedures also testified. Mr. Hebert admitted that
he did not work in the store in which Ms. Jones ’ accident occurred, nor was he at
that store on the day of the accident. Mr. Hebert testified that watermelons are
delivered to Market Basket stores in cardboard bins on pallets, so i t is Market

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Basket’s “procedure” to display watermelons in the bin, on top of a palle t,
surrounded by pallet guards . Though Mr. Hebert admitted it would not be
impossible to display the watermelons in a different way, he stated that it was not
Market Basket’s customary procedure to do so.
Because the wooden pallets are open at the ends, Mr. Hebert further testified
that Market Basket ’s policy was to attach pallet guards to “make sure that no one
puts their foot into the openings of the pallet”; otherwise, “someone could get their
foot stuck inside the opening. ” Mr. Hebert agreed that it is Market Basket’s
contention that the pallet guards cannot support the weight of a person so they should
not be stepped on. However, Mr. Hebert also admitted no sign is placed on or near
these bins to warn customers not to step on the pallet or pallet guards to reach
merchandise, though he admitted “[i]f we wanted to, we could” and it would not be
expensive to do so.
Ms. Jones also offered the testimony of safety expert Jason English , who
stated that he was an engineering consultant specializing in post -accident
evaluations. Mr. English testified that he has a Bachelor of Science degree in
Industrial Engineering, with a specialty in System Safety Engineering, and a Masters
of Science in Safety Engineering; he stated that he is licensed as a professional
Engineer in Texas. The district court accepted Mr. English as an expert in the field
of safety engineering, over an objection by the defense.3
In Mr. English ’s analysis of the evidence, he described the accident as
occurring when Ms. Jones “was trying to access the watermelons in the bin … at
least one foot stepped on what they’re referring to as their pallet guard, which gave
way, and caus[ed] her to fall. ” Mr. English thoroughly analyzed the watermelon

3 The district court’s acceptance of Mr. English , as a safety expert, was not cited as error in the
appellate court - only a portion of his testimony was made the subject of one of the defendant’s
assignments of error to the appellate court.

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display at issue and opined that “[t]his product, in my opinion, actually creates more
hazards than it ... solves. ” (See Appendix “A” following this opinion for a more
extensive quotation of Mr. English ’s testimony on this point , which will not be
published with this opinion but will remain a public record of this court.)
Mr. English further opined that Market Basket failed to adequately
replenish its watermelon display, so that customers had to reach into the bottom of
the box to pick up a watermelon. Mr. English also stated that Market Basket could
have displayed the watermelons in a manner other than in deep bins that reach down
to the floor, but rather, in the same manner as other fruit (i.e., on tables, shelving,
etc.). In the expert opinion of Mr. English, Market Basket’s set-up and placement
of its watermelon display created a hazardo us condition that presented an
unreasonable risk of harm to Ms. Jones, particularly in its use of the pallet guard,
failure to use adequate warnings, and failure to properly stock and display its
watermelons, which conditions he indicated made Ms. Jones ’ injury reasonably
foreseeable. Mr. English specified that it is foreseeable that a shopper, in the process
of trying to access watermelons in a bin on a pallet , might step on the pallet guard
as a means of getting closer to the product.
When asked by the district court about the word “STEP,” which appeared
on the side of the watermelon bins involved in Ms. Jones ’ accident, Mr. English
pointed out that on these particular bins there were holes punched into the bins just
above the word “STEP,” which obliterated a word preceding “STEP” that begins
with a “W.” Mr. English expressed his opinion that th e missing word was
“WATCH,” as the two words appeared in a linear manner in an orientation from the
top to the bottom of the box and ended with an arrow pointing to the corners of the
bins, which did not cover the corners of the pallet beneath the bin. Mr. English stated
that, as a result of the obliterat ion of letters from the likely intended warning
“WATCH STEP ,” the warning was made unclear and c aused confusion. Mr.

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English further pointed out that “[w]arnings should be clear and concise, identify
exactly what the identified hazard is, [and] what needs to be done to protect
yourself.”
Based on the evidence presented at trial, the district court delivered the
following oral reasons for judgment, in open court, on January 30, 2020 (in pertinent
part):
The Court finds the display presented an unreasonable risk of
harm which was reasonably foreseeable. The Court further finds that
Market Basket had at the very least constructive notice of the
potentially dangerous condition on its premises and failed to exercise
reasonable care to protect its customers.
Market Basket argues it had no reason to suspect that Ms. Jones
or anyone else would use the guard as a step. The Court finds it is more
than reasonable to foresee that a customer would step up onto the pallet
with or without a pallet guard to retrieve a watermelon from its elevated
container.
The way the box contain[ing] the watermelons was situated,
along with colorful arrows on each corner of the box, pointing down to
the word “Step,” and also the pallet guards providing additional width
to the top of the pallet practically invites someone to use the pallet as a
step. One could easily foresee someone instinctively doing that.
The cause for Market Basket to improve the safety condition of
this particular watermelon display for its customers is not cost
prohibitive and could be easily done.
Mr. English, an expert accepted by the Court a s an expert in
safety, opined that safety could be improved in several ways that w[ere]
not cost prohibitive.
The Court finds … Ms. Jones and her son were credible
witnesses in describing the fall. The Court also finds Mr. English to be
a credible witness. His opinions and conclusions were thoughtful and
well-explained. He did not overreach or go to extremes in providing
his testimony by way of answering the questions posited to him.
In consideration of the foregoing, the Court awards the following
damages:
Pain and suffering, $35,000; loss of enjoyment of life, $10,000;
medicals at seven-hundred, thirty-eight, ninety-five dollars [sic]. All of
these matters would include judicial interest, and costs are assessed to
Market Basket….

Judgment was signed by the district court on July 14, 2020 awarding the plaintiff
damages totaling $45,738.95,4 along with court costs and legal interest.

4 We note that, prior to trial, on July 12, 2018, the plaintiff executed a written stipulation, agreeing
that “the matter in controversy, exclusive of interest and costs, does not exceed the sum of …
$50,000.00….”

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On review, the appellate court reversed the award, finding manifest error in
the district court factual findings, necessitating a de novo review, and concluding
that the watermelon bin set-up did not present an unreasonable risk of harm. Jones
v. Market Basket Stores, Inc. , 21-354 (La. App. 3 Cir. 3/30/22), ___ So.3d ___
(2022 WL 953657).
The plaintiff thereafter filed a writ application with this Court, which was
granted (Jones v. Market Basket Stores, Inc. , 22-00841 (La. 11/8/22), 349 So.3d
570), setting forth two assignmen ts of error: (1) t he appellate court erred in
conducting a de novo review since the record does not establish a reversible error of
law or manifestly erroneous finding of fact by the district court; and (2) pursuant to
Article V § 8(B) of the Louisiana Constitution and jurisprudence of this court, the
plaintiff was deprived of her constitutional right to orally re-argue her case when a
five-judge panel was formed by the appellate court to rule on an appli cation for
rehearing.
LAW AND ANALYSIS
Merchant Liability
“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 effo rt to keep the premises free of any
hazardous conditions which reasonably might give rise to damage. ” La. R.S.
9:2800.6(A). In a negligence claim brought against a merchant, by a person lawfully
on the merchant ’s premises , for damages as a result of an i njury, 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)

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the merchant either created or had actual or constructive notice 5 of the condition
which caused the damage, prior to the occurrence; and (3) the merchant failed to
exercise reasonable care. La. R.S. 9:2800.6(B).
Pursuant to Revised Statute 9:2800.6, generally, a defendant/storeowner owes
a duty to a plaintiff to exercise reasonable care to keep its premises in a reasonably
safe condition , free of hazardous conditions. Thompson v. Winn -Dixie
Montgomery, Inc. , 15 -0477, p. 7 (La. 10/14/15), 181 So.3d 656, 662 . Under
Revised Statute 9:2800.6, in order to prove her fall was caused by a breach of Market
Basket’s duty, Ms. Jones had the burden to prove that some part of the Market Basket
watermelon display (either the fruit bin, the wooden pallet, and/or the pallet guard)
presented an unreasonable risk of harm, which Market Basket either created or had
actual or constructive notice of the alleged defect of, and that Market Basket failed
to exercise reasonable care. See Id.
In this case, the district court explicitly found credible the testimony of Ms.
Jones, her son , and safety expert Jason English. T he district court concluded that
the watermelon display at issue “presented an unreasonable risk of harm which was
reasonably foreseeable” and that “Market Basket had at the very least constructive
notice of the potentially dangerous condition on its premises and failed to exercise
reasonable care to protect its customers. ” In so ruling, the district court obviously
credited the testimony and evidence presented by the plaintiff, including expert
witness Jason English, over the testimony and evidence presented by the defense .
Since the plaintiff ’s testimony and evidence was not contradictory, internally
inconsistent, or implausible on its face, the district court’s finding of fault on the part
of the defendant cannot be manifestly erroneous.
Notwithstanding, t he appellate court ruled as manifest error (because it

5 “Constructive notice” means “the claimant has proven that the condition existed for such a period
of time that it would have been discovered if the merchant had exercised reasonable care. ” La.
R.S. 9:2800.6(C)(1).

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“directly contradicts Ms. Jones ’ recounting of the accident ”) the district court
judge’s remark in his oral reasons for judgment that “‘[w]hen Ms. Jones stepped up
onto the pallet guard to get a watermelon from the display, the large cardboard box,
it – the box – collapsed, causing her to fall onto the box on her right side and [she]
sustained personal injuries for which Market Basket is liable. ’” See Jones v.
Market Basket Stores, Inc., supra (2022 WL 953657 at 11). Although the district
court judge did state that the watermelon “box” collapsed to cause Ms. Jones ’
accident, he obviously misspoke, as all of his other statements in the oral reasons for
judgment made clear his finding that the watermelon bin set -up, as a whole,
presented a hazardous condition because it gave no indication to customers that the
pallet and pallet guard could not be safely used as a step to reach watermelons in the
bin.
Immediately before his misstatement that the cardboard box collapsed, the
district court judge discussed the purpose of the pallet guard (to keep customers from
accidentally putting their feet in the spaces in the pallet) and the fact that there were
no signs near the watermelon display “to discourage shoppers from stepping up onto
the pallet and/or pallet guard or warn of a possible hazard.” The district court judge
went on to state that it was foreseeable that a customer “would step up onto the pallet
with or without a pallet guard ” in order to reach a watermelon, because of the
“colorful arrows on each corner of the box, pointing down to the word ‘Step,’” along
with the attached pallet guard, which provided “additional width to the top of the
pallet,” and “practically invites someone to use the pallet as a step.”
As this court has consistently held, appellate courts are required to review the
entire record to ascertain whether manifest error has occurred; thus, the issue before
an appellate court is not whether the trier of fact was right or wrong, but whether the
factfinder’s conclusion was a reasonable one. Snider v. Louisiana Medical Mutual
Ins. Co., 14-1964, p. 5 (La. 5/5/15), 169 So.3d 319, 323 (per curiam); Clay v. Our

14

Lady of Lourdes Regional Medical Center, 11-1797, p. 11 (La. 5/8/12), 93 So.3d
536, 543. The appellate court must not reweigh the evidence or substitute its own
factual findings because it would have decided the case differently. Snider, 14-1964
at p. 5, 169 So.3d at 323; Pinsonneault v. Merchants & Farmers Bank & Trust
Co., 01-2217, p. 11 (La. 4/3/02), 816 So.2d 270, 279. It is only when 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 well find manifest error or clear
wrongness even in a finding purportedly based upon a credibility determination.
Rosell v. ESCO , 549 So.2d 840, 844 -45 (La. 1989). Where the factfinder ’s
determination is based on its decision to credit the testimony of one of two or more
witnesses, that finding can virtually never be manifestly erroneous; this rule applies
equally to the evaluation of expert testimony, including the evaluation and resolution
of conflicts in expert testimony. Snider, 14-1964 at p. 5, 169 So.3d at 323; Bellard
v. American Central Ins. Co., 07-1335, p. 27 (La. 4/18/08), 980 So.2d 654, 672.
Thus, in an La. R.S. 9:2800.6 action, when a district court resolves conflicts
in a plaintiff’s favor (in the absence of overwhelming objective eviden tiary
contradiction, internal inconsistency, or implausibility), an appellate court would be
unable to say that the district court manifestly erred in its decision to find the
defendant liable for the plaintiff’s injuries upon its determination that a condition on
its premises presented an unreasonable risk of harm that was reasonably foreseeable,
that prior to the accident the defendant either created or had actual or constructive
notice of the condition that caused the damage, and that the defendant failed to
exercise reasonable care. In this case, there was ample evidence in the record for
the district court’s determination that the watermelon display presented a foreseeable
and unreasonable risk of harm to the plaintiff, of which Market Basket had notice,

15

but failed to warn its customers of the risk.6 Therefore, in light of the district court’s
finding the plaintiff and her expert witness credible and under the unique facts and
circumstances of this case, we conclude the appellate court erred in finding manifest
error in the district court decision.
General Damage Award7
General damages are those which may not be fixed with pecuniary exactitude;
instead, they involve mental or physical pain or suffering, inconvenience, the loss of
intellectual gratification or physical enjoyment, or other l osses of life or life -style
which cannot be definitely measured in monetary terms. Duncan v. Kansas City
Southern Railway Co., 00-0066, p. 13 (La. 10/30/00), 773 So.2d 670, 682 . It is
well-settled that vast discretion is accorded to the trier of fact in fixing general
damage awards, as provided in La. C.C. art. 2324.1 (“In the assessment of damages
in cases of offenses, quasi offenses, and quasi contracts, much discretion must be
left to the judge or jury. ”). Howard v. Union Carbide Corp. , 09-2750, p. 5 (La.
10/19/10), 50 So.3d 1251, 1255. This vast discretion is such that an appellate court
should rarely disturb an award of general damages. Howard, 09-2750 at p. 5, 50
So.3d at 1255-56; Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.
1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

6 The appellate court further concluded that the pallet guard was an open and obvious hazard (see
Jones v. Market Basket Stores, Inc., supra (2022 WL 953657 at 22)). We disagree. In order for
an alleged hazard to be considered obvious and apparent, this court has consistently stated the
hazard should be one that is open and obvious to everyone who may potentially encounter it. See
Bufkin v. Felipe ’s Louisiana, LLC , 14-0288 (La. 10/15/14), 171 So.3d 851 (holding that the
obstruction of vision to pedestrians, crossing an adjacent street, presented by a large construction
dumpster pl aced on several on -street parking spaces was an open and obvious hazard) ;
Hutchinson v. Knights of Columbus, Council No. 5747 , 03-1533 (La. 2/20/04), 866 So.2d 228
(holding that a barricaded area containing electric cables being used to power carnival rides on
festival grounds was an open and obvious hazard); Pitre v. Louisiana Tech University, 95-1466
(La. 5/10/96), 673 So.2d 585 (holding that the danger of striking a fixed object while sledding was
obvious and apparent); Shelton v. Aetna Cas ualty & Sur ety Co., 334 So.2d 406 (La. 1976)
(holding that wet ground created when paint remover was washed off of a garage was an open and
obvious condition not unlike normally wet ground).

7 Since we vacate, herein, the decision of the appellate court to reverse the district court’s finding
of liability, we will address the defendant ’s assignment of error put forth in the appellate court
(which was not decided therein upon the appellate court ’s reversal), in the interest of judicial
efficiency, rather than remanding to the appellate court.

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Thus, the role of the appellate court in reviewing general damage awards is
not to decide what it considers to be an appropriate award, but rather to review the
exercise of discretion by the trier of fact. Howard, 09-2750 at p. 5 , 50 So.3d at
1256; Youn, 623 So.2d at 1260. The initial inquiry, in reviewing an award of general
damages, is whether the trier of fact abused its discretion in assessing the amount of
damages. Howard, 09-2750 at p. 5, 50 So.3d at 1256; Reck v. Stevens, 373 So.2d
498, 504-05 (La. 1979). Only after a determination that the trier of fact has abused
its “much discretion” is a resort to prior awards appropriate, and then only for the
purpose of determining the highest or lowest point which is reasonably within that
discretion. Howard, 09 -2750 at pp. 5 -6, 50 So.3d at 1256; Coco v. Winston
Industries, Inc., 341 So.2d 332, 335 (La. 1976).
In this case, the district court awarded Ms. Jones $45,000 in general damages
consisting of $35,000 for pain and suffering and $10,000 for loss of enjoyment of
life. Our review of the general damages awarded for the particular injuries suffered
by the plaintiff in this case does not reveal that the district court abused his vast
discretion in the general damage award made ; therefore, the award should be
affirmed.8
DECREE
For the reasons stated , we vacate the appellate court decision, reinstate the
district court judgment, and affirm the general damage award.
APPELLATE COURT DECISION VACATED; DISTRICT COURT
JUDGMENT REINSTATED; GENERAL DAMAGE AWARD AFFIRMED.

8 Based on the decision we render herein, we find it unnecessary to address the plaintiff ’s
remaining assignment of error , a s to whether, pursuant to Article V § 8(B) of the Louisiana
Constitution, the plaintiff was deprived of her constitutional right to have her case reargued before
the five-judge panel formed to rule on the motion for rehearing before the court.

17

APPENDIX “A”

In support of his opinion that the Market Basket pallet guard presented an
unreasonably hazardous condition for its customers, safety expert Jason English
testified additionally as follows:
…[T]here’s certain hazards associated with these types of
displays and … a true pallet guard primarily is to prevent trip-and-falls
associated to exposed edges and particularly with these octagon -type
containers on a square pallet, it’s the exposed corners of that. As people
are walking along the aisles and they ’ll make a turn or as … they see
… the top of the box and visually they think that, I’ll go around the top
of the box and I’m going around the display. But in reality down at the
floor level there’s additional pallet extending. So the common incident
is somebody tripping over the exposed corner of thes e. ...[A]n
effect[ive] pallet guard is one of a proper height to raise that visual
notification of the exposed corner up to a level that ’s closer to your
normal line of sight. Preferably, up to the similar level of the bin itself.
And also to be of a high visibility color so that way it would be readily
apparent. Because in a retail shopping environment there ’s a lot of
competing elements that you ’re dealing with. This is a very visually
rich environment. You know, not only the products themselves, bu t
promotional ads, pricing, everything in that environment is competing
for your attention. And normally the least attractive or competitive
thing in that environment is … the floor itself or anything near the floor.
So that’s the reason it’s important to try to bring … the notification of
that hazard up to a higher level.
So that’s the reason this particular device that’s been referred to
as a pallet guard is very deficient for … the purpose of that design.
Because, one, … this guard is only … about six inches tall. That ’s
about an inch taller than the pallet, so it really doesn ’t bring the
notification of the trip hazard up to a comparable level to the container
itself. And, two, it’s black, which is a very poor choice of color because
that’s the least reflective color you have so it does not stand out against
all these other competing attractive things in your environment.
This product, in my opinion, actually creates more hazards than
… it solves.
* * *
…[T]he black product … doesn ’t really serve an effective
purpose of a pallet guard because it doesn ’t protect for the hazards in
which they’re intended to protect from. But the problem with this is it
actually adds hazards to the system. One, being that, from a fall …
standpoint it actually extends the pallet even further from the box itself
actually increasing the risk of a trip hazard versus reducing the risk.
Two, it actually causes the person who’s trying to access the bin of, in
this case watermelons, they have to stand farther away. And making it
actually harder to access the product that ’s in the bin itself, especially
when the product is somewhat depleted and you’re having to reach into
it. Which not only is it harder to access, but that actually creates, from
an ergonomic st andpoint, a higher risk of injury for overexertion,
specifically back injuries of somebody trying to access product having

18

to stand farther away than what they would otherwise. So really, in my
opinion, it would be safer to not even have that at all versus to add it to
this system. But it definitely would not serve the function of what I
would consider to be a proper pallet guard.
And also it’s foreseeable, which happened in this obviously, it’s
at a level and since it ’s now harder to access it ems in the bin because
you’re a little bit further away, it’s foreseeable, especially since there’s
no marking otherwise, that somebody may see that or even
subconsciously use that as a means to step – possibly place one foot to
try to get closer so they can actually access the item – the product that’s
in the bin, especially when it’s somewhat depleted, as it’s indicated in
the photographs.
…I agree with the … earlier testimony. This is not … designed
to support human weight. Market Basket had knowledge of that, that it
was not supposed to be a step, that it’s not going to support the weight.
But unfortunately, that was not communicated to their customers, who
are not there to do a safety analysis of every display they approach as
they’re shopping. The y’re there to get the product. So they did not
communicate that, that this was not to be used as a step when it ’s
foreseeable that that would be used as a step. Because you’re going to
have people shopping your store of all ages, sizes, abilities, from
children, toddlers, all the way up to the elderly … with different
physical capabilities. And when you’re dealing with probably one of
the largest -- or at least one of the larger items in the produce department
in the form of a watermelon, your largest an d heaviest items, trying to
take that out of a large bin and having to reach in there to get it, the
natural human factor element is you ’re going to want to try to get as
close to it as you can. Anytime you ’re getting a larger, heavier item
you want to get as close to it as you can because it ’s easier to lift, and
also puts less pressure on your body and your back and all that. So, in
my opinion, this particular pallet guard, as it ’s being termed, which is
not a good term in my opinion, … is not a good de sign for what it ’s
intended.
* * *
…[I]f I was going to make recommendations I’d recommend not
to have this [pallet guard]. But if you ’re going to have it, … I think
black is a poor color. So you would need to have something that stands
out more to draw your attention to it. So to have preferable something
… with the color of a bright yellow. You … could get cheap decals,
probably a dollar or less, say “no step” to put on top of those pallet
guards themselves, or to put a sign on the side of the box for “no
step”…. You want to try to draw their attention down toward floor
level, but also to give them information not to use that as a step.
* * *
…[T]hese types of displays, these octagon boxes, especially on
square pallets, are well recognized … the hazards they create with the
exposed edges of pallets. …[A]s a safety professional, I don’t like the
use of these, especially in public settings. But to the degree that they’re
used, they need to be replenished because the more depleted the product
becomes, the closer people get to these, and, as you can imagine, you
know, if you ’re trying to reach down in the middle of that container,
how difficult that would be.

SUPREME COURT OF LOUISIANA
No. 2022-C-00841
LASHONDRA JONES
VERSUS
MARKET BASKET STORES, INC.
On Writ of Certiorari to the Court of Appeal, Third Circuit
Parish of Calcasieu
WEIMER, C.J., additionally concurring
Although the defendant argues the pallet guard was an open and obvious
hazard, a detailed discussion of the so-called “open and obvious defense” in
negligence actions is not necessary for purposes of resolving this case. However, the
court has addressed the parameters of this concept in Farrell v. Circle K Stores, Inc.
and the City of Pineville, 22-00849 (La. 3/__/23), ___ So.3d ___, which should
serve as a guideline for future cases involving how the defense of “open and obvious”
should be applied. See also, Thomas C. Galligan, Jr., Continued Conflation
Confusion in Louisiana Negligence Cases: Duty and Breach, 97 Tul.L.Rev.
(forthcoming March 2023); Frank L. Maraist, H. Alston Johnson III, Thomas C.
Galligan, Jr., & William R. Corbett, Answering a Fool According to His Folly:
Ruminations on Comparative Fault Thirty Years On, 70 La. L.Rev. 1105 (2010).