Merdis Cole v. Brookshire Grocery Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1093

MERDIS COLE, ET AL.

VERSUS

BROOKSHIRE GROCERY COMPANY

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APPEAL FROM THE
PINEVILLE CITY COURT
PARISH OF RAPIDES, NO. 6-0377
HONORABLE JESSE PHILLIP TERRELL, JR., CITY COURT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
Michael G. Sullivan, Judges.

AFFIRMED.

David A. Hughes
Hughes & LaFleur
P. O. Box 1831
Alexandria, LA 71309-1831
Telephone: (318) 443-4090
COUNSEL FOR:
Defendant/Appellant - Brookshire Grocery Company

David A. Johnson
P. O. Box 8480
Alexandria, LA 71306
Telephone: (318) 473-2523
COUNSEL FOR:
Plaintiffs/Appellees - Jerry Cole and Merdis Cole

THIBODEAUX, Chief Judge.

This case involves a fall by the plaintiff-appellee, Mrs. Merdis Cole, near

the outside entrance of Super 1 Foods. Following a bench trial, the trial court issued

judgment for Merdis and Jerry Cole in the total amount of $19,029.95. Brookshire

Grocery Company, the owner of Super 1 Foods, appeals. We affirm the judgment of

the trial court.

I.

ISSUE

We must decide whether the trial court abused its discretion in finding

the defendant grocery store liable for Mrs. Cole’s injuries.

II.

FACTS AND PROCEDURAL HISTORY

At approximately 7:00 p.m. on Friday, July 1, 2005, seventy-year-old

Merdis Cole was leaving Super 1 Foods, a grocery store owned by Brookshire

Grocery Company (“Brookshire”), when she tripped over a carton of bottled water

that had fallen from a display stacked on a pallet outside the front entrance of the

store. Mrs. Cole landed on her right side injuring her elbow, arm, neck, hip, leg, and

knees. Her husband, Pastor Jerry Cole, had preceded her to the car with the groceries.

Upon hearing her call out his name, he came back to help her up, with the assistance

of a nearby woman. Upset and embarrassed by the fall, Mrs. Cole went home, but

given the amount of pain she was experiencing, went back a short time later with her

husband to fill out an accident report. She went to her family physician the following

week. Damages are not being contested on appeal.

At trial, testimony was given by the assistant manager of the store,

Michael Leonard, and by Mr. and Mrs. Cole. Following trial, the judge found the

store at fault for Mrs. Cole’s injuries and awarded her $15,000.00 in general damages,

$1,592.95 in past medical expenses, and awarded $2,500.00 to Mr. Cole for loss of

consortium.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a trial court’s findings of fact in the

absence of manifest error or unless it is clearly wrong. Stobart v. State, Through

DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-

tiered test must be applied in order to reverse the findings of the trial court:

1). [t]he appellate court must find from the record that
a reasonable factual basis does not exist for the
finding of the trial court, and

2). [t]he appellate court must further determine that the
record establishes that the finding is not clearly
wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120, 1127 (La.1987) (quoting Arceneaux v. Domingue, 365

So.2d 1330, 1333 (La.1979)).

Even where the appellate court believes its inferences are more

reasonable than the fact finders, reasonable determinations and inferences of fact

should not be disturbed on appeal. Arceneaux, 365 So.2d 1330. Additionally, a

reviewing court must keep in mind that if a trial court’s findings are reasonable based

upon the entire record and evidence, an appellate court may not reverse said findings

even if it is “convinced that had it been sitting as the trier of fact, it would have

weighed that evidence differently.” Housely v. Cerise, 579 So.2d 973, 976 (La.1991)

(quoting Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990)). The basis

for this principle of review is grounded not only upon the better capacity of the trial

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court to evaluate live witnesses, but also upon the proper allocation of trial and

appellate functions between the respective courts.

Analysis

Brookshire contends that the trial court committed an error of law in

finding that the Coles met their burden of proof in establishing fault on the part of the

defendant. We disagree. Causation is a fact question. Mart, 505 So.2d 1120. The

trial court was not manifestly wrong in finding that the evidence proved Brookshire’s

liability for Mrs. Cole’s injuries. As cited by Brookshire, La.R.S. 9:2800.6 (emphasis

added), governs merchant liability, providing as follows:

§ 2800.6. Burden of proof in claims against merchants

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

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

In the present case, Mrs. Cole drew a diagram of the front of the grocery

store showing three front entrances; her route of exit; the location of the display of

bottled water by the door; and the location of the errant carton of water that caused

her fall. Mrs. Cole exited through the middle door right next to the display of shrink-

wrapped, twelve-bottle water cartons stacked on a pallet. She did not notice the

display going in or coming out. As Mrs. Cole stated at trial, she “never bought stuff

outside.” Coming out of the door, Mrs. Cole crossed to her left toward her car. The

package that she tripped over was directly in her path. Mrs. Cole testified that she

was not looking down, but was looking up and out toward her car and watching for

traffic as she was about to enter a parking lot.

It is uncontested that the assistant manager, Michael Leonard, found the

fallen carton of water on the pavement and picked it up and placed it back on the

stack, apparently unaware that there had been an accident shortly before he found the

carton out of place. It is not known how long the water had been displaced from the

stack, but it is not contested that the entire pallet of stacked water cartons was located

outside the store right by the front door. Brookshire, citing rainy day cases, argues

that Mrs. Cole did not establish the “temporal” element of time that the courts have

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discussed in deciding constructive knowledge issues. We assume Brookshire is

referring to the fallen carton of water. However, we do not believe that it is necessary

to prove constructive notice in this case because La.R.S. 9:2800.6(B)(2) states that

the plaintiff must show that the defendant created the harm or had actual or

constructive notice of the harmful condition. In this case, the defendant created the

risk of harm.

More specifically, under the facts of this case, we find that the entire

stack of cartons right outside a main entrance, in or near the direct path of customers

entering or leaving the store, presented an unreasonable risk of harm and that it was

foreseeable that a carton, or the whole display, could fall in the path of a customer.

When Mr. Leonard referred to the water display at trial, he stated: “We had a vendor

set those up.” He, therefore, admitted that Brookshire created the condition and had

actual notice of the condition. Further, Brookshire failed to exercise reasonable care

in placing a pallet of stacked twelve-bottle water cartons at an outside entrance, where

there are no shopping isles, basically using its store front as storage and requiring the

invited public to traverse the area.

IV.

CONCLUSION

Based upon the foregoing, we affirm the trial court’s judgment awarding

the Coles a total of $19,029.95 plus legal interest from the date of judicial demand.

All costs of this appeal are taxed against Brookshire Grocery Company.

AFFIRMED.

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