Kenneth Wayne Jackson v. Brookshire Grocery Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-147

KENNETH WAYNE JACKSON

VERSUS

BROOKSHIRE GROCERY COMPANY

**********

APPEAL FROM THE
PARISH OF RAPIDES
ALEXANDRIA CITY COURT, NO. 108,444
HONORABLE RICHARD E. STARLING JR., CITY COURT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Marc T. Amy, Elizabeth A. Pickett, and J. David Painter, Judges.

AFFIRMED.

David A. Hughes
Hughes & LaFleur
P. O. Box 1831
Alexandria, LA 71309-1831
Counsel for Defendant/Appellant
Brookshire Grocery Company

Mark F. Vilar
Aaron L. Green
Vilar & Elliott
P. O. Box 12730
Alexandria, LA 71315-2730
Counsel for Plaintiff/Appellee
Kenneth Wayne Jackson

PICKETT, J.

The defendant, Brookshire Grocery Company, d/b/a/ Super One Foods, appeals

a judgment of the trial court awarding the plaintiff, Kenneth Wayne Jackson,

$5,000.00 in general damages and $1,282.67 in medicals, plus interest and costs, for

injuries he sustained when several cases of food fell on him as he shopped in the

store. We affirm the judgment of the trial court.

FACTS

This suit arises as the result of an injury sustained by the plaintiff, Kenneth

Wayne Jackson, on March 9, 2007, when several cases of merchandise fell on him as

he shopped at Super One Foods in Alexandria, Louisiana. The products in this

section of Super One are displayed for purchase similar to products stored in a

warehouse, in case lots. Cases are stacked atop one another with the faces cut off,

revealing the contents. Some merchandise is displayed in cases at floor level, while

additional merchandise is displayed in cases on shelving approximately six feet above

the ground.

The plaintiff was reaching for an item approximately six feet above floor level,

in a case with the front cut out. As the plaintiff attempted retrieve a box of “chicken

helper” from that case, several other cases fell on him, injuring his left arm. The

impact caused a “tennis-ball” sized hematoma and a lump in his left forearm.

The plaintiff attempted to continue with his shopping, but shortly after the

accident a lump developed in his arm, accompanied by intense pain. Because of a

pre-existing heart condition, the plaintiff became concerned and summoned an

ambulance to transport him to Christus St. Francis Cabrini Hospital. The plaintiff

was diagnosed with a contusion of the left forearm; he was treated and released with

1

instructions to follow-up with his primary care physician, if needed. Because he was

still experiencing pain about one week later, he consulted his family physician, Dr.

Alejandro Perez. Dr. Perez noted a one-inch in diameter knot surrounded by bluish-

green discoloration on the ulnar aspect of the left forearm. The doctor noted that the

area was not warm to the touch, indicating the absence of an infection, and concluded

that the arm demonstrated what he described as the normal “process after the trauma.”

On appeal the defendant argues that the plaintiff failed to prove that an

unreasonably dangerous condition caused the accident, and that the general damage

award was excessive for what was “at most, a three (3) week injury.”

LAW AND DISCUSSION

Both parties, in their argument before the trial court, and the trial court in its

reasons for judgment, cite Davis v. Wal-Mart Stores, Inc., 00-445 (La. 11/28/00), 774

So.2d 84, to support their positions. In Davis, 774 So.2d at 89-90, our supreme court

set out the law applicable to “falling merchandise” cases:

The applicable statute as to liability in this case is La. R.S. 9:2800.6
which governs negligence claims brought against a merchant, such as
Sam’s. La. R.S. 9:2800.6 reads, in pertinent 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.

....

In a “falling merchandise” case under R.S. 9:2800.6(A), as in the present
case, the standard is that the merchant must use reasonable care to keep
its aisles, passageways and floors in a reasonably safe condition and free
of hazards which may cause injury. Further, a plaintiff who is injured
by falling merchandise must prove, even by circumstantial evidence, that
a premise hazard existed. [Smith v. Toys “R” Us, Inc., et al., 98-2085

2

(La. 11/30/99), 754 So.2d 209.] Once a plaintiff proves a prima facie
premise hazard, the defendant has the burden to exculpate itself from
fault by showing that it used reasonable care to avoid such hazards by
means such as periodic clean up and inspection procedures. Id.

To prevail in a falling merchandise case, the customer must
demonstrate that (1) he or she did not cause the merchandise to fall, (2)
that another customer in the aisle at that moment did not cause the
merchandise to fall, and (3) that the merchant’s negligence was the
cause of the accident: the customer must show that either a store
employee or another customer placed the merchandise in an unsafe
position on the shelf or otherwise caused the merchandise to be in such
a precarious position that eventually, it does fall. Only when the
customer has negated the first two possibilities and demonstrated the last
will he or she have proved the existence of an “unreasonably dangerous”
condition on the merchant's premises. Smith v. Toys “R” Us, Inc., et al.,
supra.

Under Smith, supra, though evidence of adequate inspection and
clean up procedures may yet be part of the merchant’s burden to
disprove negligence, evidence of the opposite is certainly relevant as
part of the customer's burden to prove negligence: plaintiff customer
will carry his or her burden if he or she can make a prima facie showing
that inadequate or neglected inspection and clean up procedures left
merchandise in such an unstable or precarious position that it falls from
its stacked or displayed position to cause injuries to him or her. Id., at
p. 5, 754 So.2d at 212.

In its reason for judgment the trial court stated:

The ultimate fact that must be decided by the court is whether the
plaintiff caused the item to fall. If the court rules that any time a
customer reaches for a product and another product falls, the customer
caused the accident, it would seem to remove any inquiry as to
causation.

We agree.

In this case, chicken helper and other items were stacked from ground level to

the bottom of a shelf which was established to be six feet above the floor. The

plaintiff selected a box from the first carton stacked on the shelf. When he pulled the

box of chicken helper from the case on the shelf, several cases of chicken helper

stacked above the bottom case fell down striking him. As the plaintiff reached for the

3

box he had selected, the defendant’s produce manager, Laverne Clark, and another

employee, identified only as Mr. Battistelli, were working some distance down the

isle. Mr. Battistelli observed the plaintiff’s actions and shouted for the plaintiff to

“stop” or “look out.” Before the plaintiff could respond, the higher case had already

fallen.

In a falling merchandise case, as in any other case involving factual

determinations by the trial court “[t]he issue for the reviewing court is not whether

the trier of fact was wrong, but whether the factfinder’s conclusions were reasonable

under the evidence presented.” Smith, 754 So.2d at 214. Under the facts presented

in this case, we find the fact-finder’s conclusions were reasonable. It is obvious that

the plaintiff had no idea that several cases of merchandise would come tumbling

down when he made his selection. Also, it appears that Mr. Battistelli recognized that

a dangerous condition existed when he shouted his warning, i.e., that the cases of

chicken helper had been placed in an unsafe position on the shelf or in such a

precarious position that they eventually fell.

The standard of appellate review of a general damage award was set out by our

supreme court in Andrus v. State Farm Mutual Automobile Insurance Co., 95-801,

p. 8 (La. 3/22/96), 670 So.2d 1206, 1210, wherein the court stated:

In appellate review of general damage awards, the court must
accord much discretion to the trial court judge or jury. Reck v. Stevens,
373 So.2d 498 (La.1979). The role of an appellate court in reviewing
awards of general damages is not to decide what it considers to be an
appropriate award, but rather to review the exercise of discretion by the
trial court. Id. Only if the reviewing court determines that the trial court
has abused its “much discretion” may it refer to prior awards in similar
cases and then only to determine the highest or lowest point of an award
within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332
(La.1976).

4

Because discretion vested in the trial court is “great,” and even
vast, an appellate court should rarely disturb an award of general
damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261
(La.1993). Reasonable persons frequently disagree about the measure
of general damages in a particular case. It is only when the award is, in
either direction, beyond that which a reasonable trier of fact could assess
for the effects of the particular injury to the particular plaintiff under the
particular circumstances that the appellate court should increase or
reduce the award. Id.

Although the award in this case is generous, we cannot say it is “beyond that which

a reasonable trier of fact could assess for the effects of the particular injury to the

particular plaintiff under the particular circumstances.” Id.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against the defendant, Brookshire Grocery

Company, d/b/a/ Super One Foods.

AFFIRMED.

5