Mildred Kirklin v. Brookshire Grocery Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-680

MILDRED KIRKLIN, ET VIR

VERSUS

BROOKSHIRE GROCERY
COMPANY, ET AL

************

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 216,871, DIVISION “F”
HONORABLE GEORGE C. METOYER, DISTRICT JUDGE

************

JAMES T. GENOVESE
JUDGE

************

Court composed of Jimmie C. Peters, Marc T. Amy, and James T. Genovese, Judges.

AFFIRMED.

Howard N. Nugent, Jr.
330 St. James Street
Post Office Box 1309
Alexandria, Louisiana 71301-1309
(318) 445-3696
Counsel for Plaintiff/Appellant:
Mildred Kirklin

J. Morgan Passman
Walker & Passman
3800 Parliament Drive
Post Office Box 13020
Alexandria, Louisiana 71315-3020
(318) 445-4516
Counsel for Defendants/Appellees:
Brookshire Grocery Company and
Randy Randall

GENOVESE, Judge.

In this slip and fall case, Plaintiff/Appellant, Mildred Kirklin, appeals the trial

court judgment in favor of Defendants/Appellees, Brookshire Grocery Company d/b/a

Super One Foods (Super One), and its manager, Randy Randall. For the following

reasons, we affirm.

FACTS

This case involves a “slip and fall” accident which occurred on April 29, 2003,

at the Super One store on MacArthur Drive in Alexandria, Louisiana. Mildred

Kirklin alleges that as she was grocery shopping, she “slipped on the [a] slippery

chicken bone and managed to keep from falling to the floor by a sudden, almost super

human effort to keep from impacting the floor, fell injuring herself, causing her to

suffer . . . serious injuries” to her neck, shoulder, ankle, and back. As a result of the

accident, Mrs. Kirklin filed suit against Super One and Mr. Randall, seeking general

and special damages. Her husband, Arthur Kirklin, sought damages for loss of

consortium.

Following a one-day bench trial on February 19, 2008, judgment was rendered

in favor of Super One and Mr. Randall. In rendering its judgment, the trial court

stated:

After taking into consideration the entire suit record, all
documents, and the testimony of all parties, and the arguments of
counsel,
There is no doubt in this court’s mind that Mrs. Kirklin slipped
and fell on a chicken bone. But it is insufficient to find that a chicken
bone with the state of the law as it is regarding the slip and fall, that
there must be actual or constructive knowledge. And this court finds
that there was not anything to indicate that the store had actual or
constructive knowledge.

1

A judgment to this effect was signed on February 28, 2008. Mrs. Kirklin appeals.1

ASSIGNMENTS OF ERROR

Mrs. Kirklin contends that:

1. [T]he lower court fell into error in failing to recognize that
the Defendant had constructive notice of the presence of a
greasy thigh bone, a dirty floor and fuzz balls.

2. [T]he lower court fell into reversible error in failing to find
that Defendant exercised reasonable care.

3. [T]he lower court fell into reversible error in finding that
the Plaintiff had met her burden of proof because of a
presumption of failing to produce the only employee who
would be in a position to give testimony about the length
of time that the thigh bone that caused the Plaintiff to slip
had stayed on the floor, and whether the floor was dirty.

4. [T]he lower court erred in failing to award damages.

STANDARD OF REVIEW

In Blackman v. Brookshire Grocery Co., 07-348, p. 2 (La.App. 3 Cir. 10/3/07),

966 So.2d 1185, 1187, this court set forth the applicable standard of review as

follows:

An appellate court may not set aside a trial court’s finding of fact
in the absence of manifest error or unless it is clearly wrong. Rosell v.
ESCO, 549 So.2d 840 (La.1989). Where there is a conflict in the
testimony, reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review, even where the
appellate court feels that its own evaluations and inferences are as
reasonable. If the trial court’s findings are reasonable in light of the
record read in its entirety, a court of appeal may not reverse even though
it is convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently. Id.

When the trial court’s findings are based on determinations
regarding the credibility of witnesses, the manifest error--clearly wrong
standard demands that great deference be given to the trier of fact’s
findings. This is so because only the fact finder can be aware of the

1
Mr. Kirklin is not named in the Motion for Appeal. At trial, Mrs. Kirklin testified that Mr.
Kirklin died on November 13, 2007.

2

variations in demeanor and tone of voice that bear so heavily on the
listener’s understanding and belief in what is said by the witnesses. Id.
It is only where the documents or objective evidence so contradict a
witness’s story, or the story is so internally inconsistent or implausible
on its face that a reasonable fact finder would not credit the witness’s
story, that the court of appeal may find manifest error or clear wrongness
in a finding purportedly based on a credibility determination. Id.

Accordingly, we will review the record in its entirety to determine whether the trial

court’s factual findings were reasonable in light of the evidence.

LAW AND DISCUSSION

Louisiana Revised Statutes 9:2800.6 provides, in relevant part:

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. 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.

C. Definitions:

(1) “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. 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

3

that the employee knew, or in the exercise of reasonable care should
have known, of the condition.

Only Mrs. Kirklin and Mark Russell McGrew, an assistant manager on duty at

Super One at the time of the accident, testified at the February 19, 2008 trial of this

matter. Super One also introduced into evidence the deposition testimony of Dr.

Kenneth W. McMillin.

Mrs. Kirklin testified that she slipped on “one of the little thigh bones” of a

chicken while walking down the bread aisle. After she slipped, Mrs. Kirklin recalled

that the floor had “a little grease area there where the bone was.” Mrs. Kirklin then

walked over and told a cashier about her accident. According to Mrs. Kirklin, the

cashier used a paper towel to pick up and throw away the chicken bone. Mrs. Kirklin

then left the store in order to put her bread in her car; however, she returned to speak

with the store’s manager.

Mrs. Kirklin stated that the condition of the store’s floor was dirty, that the area

around the bone on which she slipped had “[s]ome fuzz balls and dust balls,” and that

the area was “about the size of a basketball.” She also testified that “[t]he bone was

dark and it had been there for, say, like a period of time.” According to Mrs. Kirklin,

she conducted an at-home experiment wherein she fried a chicken and stripped the

meat off the bone in order to determine how long it would take the bone to darken.

Mrs. Kirklin concluded “[i]t took maybe like a week or so” for the bone to darken.

Mr. McGrew testified that he was the assistant store manager on duty at Super

One on the morning of April 29, 2003, and that he completed the Customer Report

of Accident2 after Mrs. Kirklin reportedly slipped. When questioned about his duties

upon his arrival at work, Mr. McGrew answered: “The first thing I do is walk every

2
We note that the Customer Report of Accident was introduced into evidence by Super One.

4

aisle, walk around the store, make sure everything is in its place where it’s supposed

to be, and nothing is out of place.” According to Mr. McGrew, Mrs. Kirklin reported

her accident to him at 11:30 a.m., and he had conducted an inspection at 11:00 a.m.

wherein he did not see a chicken bone on the floor of the bread aisle.

Super One presented the testimony of Dr. Kenneth W. McMillin, a professor

of animal science at Louisiana State University Agricultural Center for twenty-eight

years, whose research is primarily in meat and poultry processing and packaging. Dr.

McMillin countered Mrs. Kirklin’s assertion that the color of the chicken bone

suggested that it had been on the floor for some period of time. Dr. McMillin

testified:

My experience with both fried and boiled and baked chicken bones is
that once the meat is removed, then unless the bones are subjected to
extreme environmental conditions, which would not be normal room
temperature and humidity or light, then the color doesn’t substantially
change at all. The bone color is set immediately after freezing and/or
cooking.

He also stated that he too had performed an experiment wherein he boiled a chicken

and stripped the meat off the bone in order to determine how long it would take the

bone to darken. According to Dr. McMillin, once a bone has been cooked, it cannot

be determined how long it has been exposed to air.

Brookshire argues that Mrs. Kirklin offered no evidence to support her

assertion that the chicken bone was on the floor long enough to have been discovered

as required by La.R.S. 9:2800.6. We agree. Aside from her own self-serving

testimony, Mrs. Kirklin failed to present any evidence that Brookshire created or had

actual or constructive notice of the presence of the chicken bone on the floor of the

store prior to the occurrence as required by the statute. In light of the evidence in the

record, the trial court’s factual findings were reasonable, and we do not find manifest

5

or clear error in the trial court’s judgment. Having found no liability on the part of

the Defendants, we need not address the issue of damages.

DECREE

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

of this appeal are assessed against the Plaintiff, Mildred Kirklin.

AFFIRMED.

6