Bridget J. Dotson v. Brookshire Grocery Company

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-83

BRIDGET J. DOTSON

VERSUS

BROOKSHIRE GROCERY COMPANY

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APPEAL FROM THE
PINEVILLE CITY COURT
PARISH OF RAPIDES, NO. 02-0475
HONORABLE J. PHILLIP TERRELL JR., CITY COURT JUDGE
**********

GLENN B. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Glenn B. Gremillion and
*John B. Scofield, Judges.

*Honorable John B. Scofield participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

AFFIRMED.

Susan Ford Fiser
P.O. Box 12424
Alexandria, LA 71315-2424
(318) 442-8899
Counsel for Plaintiff/Appellee
Bridget J. Dotson

David A. Hughes

Hughes & LaFleur
P. O. Box 1831
Alexandria, LA 71309-1831
(318) 443-4090
Counsel for Defendant/Appellant
Brookshire Grocery Company

GREMILLION, Judge.

The defendant, Brookshire Grocery Company, appeals the judgment of

the city court finding that the plaintiff, Bridget J. Dotson, satisfied her burden of

proving its liability for her slip and fall. We affirm.

FACTS

On August 19, 2001, at 8:30 a.m., Dotson had just finished her shift as

an LPN at the Veteran’s Administration Hospital and was shopping at the Super One

Foods in Pineville, Louisiana. The Super One Foods store is owned by Brookshire.

She was in the produce department and tripped when her foot caught under a rug

lining the front of a produce bin. Dotson injured her right knee as a result of this fall

and was forced to seek medical care and missed a day of work.

Dotson filed suit in Pineville City Court against Brookshire seeking

damages for her injury. Following a trial on the merits, the trial court took the matter

under advisement and then rendered judgment in Dotson’s favor, awarding her

$3,188.95 in general and special damages. This appeal by Brookshire followed.

ISSUE

On appeal, Brookshire argues that the trial court erred in finding that

Dotson satisfied her burden of proof pursuant to La.R.S. 9:2800.6(B).

MERCHANT LIABILITY

In order to prove merchant liability in a slip and fall case, the plaintiff

must prove, in addition to the usual negligence requirements (duty, breach, cause in

fact, and damages), those elements found in La.R.S. 9:2800.6(B):

(1) The condition presented an unreasonable risk of harm to the
claimant and that risk of harm was reasonably foreseeable.

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(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. In
determining reasonable care, the absence of a written or verbal uniform
cleanup or safety procedure is insufficient, alone, to prove failure to
exercise reasonable care.

Constructive notice is defined in La.R.S. 9:2800.6(C)(1) as meaning:

[T]he 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. The presence of an employee of the merchant in the
vicinity in which the condition exists does not, alone, constitute
constructive notice, unless it is shown that the employee knew, or in the
exercise of reasonable care should have known, of the condition.

The burden of proof remains with the plaintiff and her failure to prove

any of the three above stated elements defeats her cause of action. White v. Wal-Mart

Stores, Inc., 97-0393 (La. 9/9/97), 699 So.2d 1081.

The reasonable care required of a merchant was discussed by the second

circuit in Jones v. Brookshire Grocery Co., 37,117, pp. 8-9 (La.App. 2 Cir. 5/14/03),

847 So.2d 43, 49-50:

Merchants are required to exercise reasonable care to protect those
who enter the store, keep the premises safe from unreasonable risks of
harm and warn persons of known dangers. Turner v. Brookshire
Grocery Co., 34,562 (La.App. 2 Cir. 4/4/01), 785 So.2d 161; Ward v.
ITT Specialty Risk Services, Inc., 31,990 (La.App.2d Cir.6/16/99), 739
So.2d 251, writ denied, 99-2690 (La.11/24/99), 750 So.2d 987; 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. Turner, supra; Ward, supra; Tanner
v. Brookshire Grocery Company, 29,276 (La.App.2d Cir.4/2/97), 691
So.2d 871. A store owner is not liable every time an accident happens.
Turner, supra; Ward, supra; Leonard, 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 or conditions that might cause

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a customer to fall. See Hardman v. The Kroger Company, 34,250
(La.App.2d Cir.12/6/00), 775 So.2d 1093; Ward, supra; Stevens v. Winn
Dixie of Louisiana, 95-0435 (La.App. 1st Cir.11/9/95), 664 So.2d 1207.
Whether measures taken are reasonable must be determined in light of
the circumstances of each case. Hardman, supra; Ward, supra. As
noted by the court in Stockwell v. Great Atlantic & Pacific Tea Co., 583
So.2d 1186 (La.App. 1st Cir.1991) (citations omitted), the degree of
vigilance must be commensurate with the risk involved, as determined
by the overall volume of business, the time of day, the section of the
store and other relevant considerations.

The court further stated in regards to a trial court’s finding of facts:

A trial court’s findings regarding liability for damages caused by
a slip and fall accident at the defendant’s place of business, as well as the
presence of comparative fault, are factual determinations that will not be
disturbed absent manifest error or unless clearly wrong. Barton v.
Wal-Mart Stores, 97-801 (La.App. 3d Cir.12/10/97), 704 So.2d 361;
Myles v. Brookshires Grocery Co., 29,100 (La.App.2d Cir.1/22/97), 687
So.2d 668. In addition, whether a condition existed for a sufficient
period of time that a merchant should have discovered the condition is
a fact question; however, there remains the prerequisite showing of some
time period. Kennedy, supra.

Id.

After reviewing the record in its entirety, we find no manifest error in the

trial court’s finding that Brookshire had constructive notice of the problems caused

by these rugs and that it failed to use reasonable care to ensure that this unsafe

condition did not continue.

Dotson testified that she often shops at the store in question and was

aware that the rugs were maintained in front of the produce bins to prevent the floors

from becoming slippery. She stated that she did not see the wrinkled rug prior to her

fall, nor did she know how the rug became wrinkled or how long the wrinkle was

present.

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Billy Scarbrock, a produce stocker for Brookshire, testified that he was

working at the Pineville store on the morning of August 19, 2001. He stated that his

duties include stocking produce and maintaining the floors in his department. He

stated that the produce department floors are cleaned every night and then are

supervised by that department’s employees during the day. He stated that Brookshire

has long green, rubber-backed rugs in front of the produce bins which use sprinklers

on the produce. Scarbrock testified that water from the sprinklers falls on the rugs,

rather than the floors; thus the rugs provide a safe walkway for the customers.

When he begins work in the morning, Scarbrock testified that he places

the rugs back on the floor and then begins stocking the display area. Once he reaches

the end of a rack of produce, he stated that he cleans and straightens the rugs located

in front of that rack. During the day, he testified that he is in and out of the storage

area behind the produce section and that he regularly sweeps and straightens the rugs.

He further stated that the rugs are problematic due to their thinness. He described

them as being made out of a type of cloth with a rubber backing. He testified that they

wrinkle up, which necessitates him going “out on the floor all the time [to] straighten

them.” He stated that he straightens the rugs approximately six times a day.

On August 19, 2001, Scarbrock testified that the accident occurred at

approximately 9:15 a.m., the time when he just finishes stocking the area utilizing the

sprinklers. He stated that he had just straightened the rugs in the area of Dotson’s fall

approximately five to fifteen minutes before hand, but he did not specifically look

down at the rug which caused her fall. However, he stated that customers walk and

roll their shopping carts over the rugs in question. Scarbrock testified that the accident

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occurred while he was back in the storage area for approximately fifteen minutes.

When he arrived back at the display area, he stated that Dotson was on the floor and

that the rug was definitely wrinkled.

As evidence of the reasonable care exercised by Brookshire, Dotson

introduced Brookshire Store Policy Letter #59 into evidence. With regard to accident

prevention and safety rules, the letter lists five rules:

1. All partners, as a required part of their daily duties, are to
be alert to any unsafe conditions and constantly inspect the
floors and displays as they work and move about the store.

2. A member of the management team will make regular,
store-wide inspections during business hours to promote a
safe environment for our customers and partners.

3. Regular SAFETY INSPECTIONS performed by the safety
committee chairman should include all floor areas and shall
strictly adhere to existing safety guidelines and procedures
concerning floor care and maintenance. Any and all unsafe
flooring conditions shall be reported on the Safety
Inspection Form and sent to the Safety Coordinator
immediately.

4. Approved SAFETY FLOOR SIGNAGE shall be placed in
such a manner as to provide customers with a reasonable
warning and alert that possible unsafe floor conditions may
exist in the immediate areas. Without exception, when an
unsafe condition is detected on sales area flooring, partners
should restrict the unsafe area immediately. The area must
be secured before sending for or leaving an area to obtain
equipment to perform the necessary clean up or repair.

5. In an effort to enhance floor safety and provide a safe floor
surface, approved FLOOR MATS will be used in certain
areas of the store that have been identified by industry and
company concerns as presenting higher accident-frequency
history or higher potential for immediate or future injury to
customers or partners.

Scarbrock admitted that the policy does not provide that inspections

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occur at specific times or by specific persons. He stated that employees just take care

of unsafe situations as they are noticed or brought to their attention.

Considering the foregoing evidence, the trial court’s findings, that

Brookshire had constructive notice that its produce department rugs presented a

tripping hazard and that it failed to exercise reasonable care in preventing this

condition from occurring, are reasonable. Brookshire’s employee testified that the

thinness of the rugs caused them to wrinkle easily and that they were constantly

having to straighten them. Since most customers purchase produce or travel through

that area while grocery shopping, and considering the ease with which these rugs

wrinkled, it was reasonable for the trial court to find that Brookshire failed to exercise

reasonable care in preventing this accident. The judgment of the trial court is

affirmed. This assignment of error is dismissed as being without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

The costs of this appeal are assessed against the defendant-appellant, Brookshire

Grocery Company.

AFFIRMED.

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