Linda G. Bonstell v. Brookshire Grocery Company D/B/A Super One Foods

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-154

LINDA G. BONSTELL

VERSUS

BROOKSHIRE GROCERY COMPANY
D/B/A SUPER ONE FOODS

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APPEAL FROM THE
PINEVILLE CITY COURT
PARISH OF RAPIDES, NO. 6-0345
HONORABLE J. PHILLIP TERRELL, JR., CITY COURT JUDGE

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MARC T. AMY
JUDGE

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

REVERSED AND RENDERED.

David A. Hughes
Hughes & LaFleur
Post Office Box 1831
Alexandria, LA 71309-1831
(318) 443-4090
COUNSEL FOR DEFENDANT/APPELLANT:
Brookshire Grocery Company
d/b/a Super One Foods

Jonathan T. Gaspard
Post Office Box 546
Marksville, LA 71351
(318) 240-7329
COUNSEL FOR PLAINTIFF/APPELLEE:
Linda G. Bonstell

AMY, Judge.

The plaintiff, a patron of the defendant grocery store, alleges that she tripped

on a rug that was placed on the ground to cover a crack on the floor. She sustained

injuries to her ribs and left knee; accordingly, she brought suit against the defendant,

seeking general and special damages. The trial court ruled in favor of the plaintiff,

awarding her $25,000.00 in general damages and $7,828.52 in medical expenses. On

appeal, the defendant questions the trial court’s finding that a defect in the premises

existed and that it was the sole cause of the accident. Further, it contends that the

general damage award was “abusively excessive.” For the reasons that follow, we

reverse and render judgment.

Factual and Procedural Background

The plaintiff, Linda G. Bonstell, was a patron of Super One Foods1, the

defendant. According to the plaintiff’s testimony, on April 1, 2006, she visited the

grocery store to pick up one or two items. She stated that she was walking through

the deli area and fell, sustaining injuries to her right ribs and left knee. She testified

that she tripped on a rug but did not see the rug until after she had fallen. The

testimony of the store manager, Parnell Priester, and the deli manager, Angela

Dorsey, revealed that when Super One Foods purchased the store from Winn-Dixie,

the floor was cracked in the deli area. Priester testified that while the renovation

plans were being approved, duct tape was placed over the crack and a rug was placed

on top of the tape. Dorsey stated that a linen company changed the rug once a week.

She also stated that the rug needed to be fixed “maybe three times a week[,]” while

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The record indicates that Super One Foods is owned, managed, maintained, and
supervised by Brookshire Grocery Company. For purposes of this opinion, the defendant is
referred to as Super One Foods.

Annette Nix, an employee of the defendant, stated in her deposition that the rug

would need to be straightened about “once or twice a day.”

The plaintiff filed a negligence suit against the defendant. Subsequently, the

plaintiff filed a motion for summary judgment on the issue of liability. The trial court

denied the partial motion for summary judgment. A bench trial followed. The trial

court ruled in favor of the plaintiff, finding that the crack in the floor constituted a

defect in the premises and that the defendant was solely at fault. It awarded the

plaintiff $25,000.00 in general damages and $7,828.52 for medical expenses. The

defendant appeals, asserting that the “trial court erred in concluding that a defect in

the premises existed and in concluding that such defect was the sole cause of the

accident complained of herein” and that “[t]he trial court’s award of $25,000.00 in

general damages was abusively excessive.”

Discussion

Burden of Proof

The defendant questions the trial court’s determination that a defect in the

premises caused the accident. In order to be successful in a merchant liability claim,

the plaintiff must prove the elements of La.R.S. 9:2800.6. See Davis v. Wal-Mart

Stores, Inc., 00-445 (La. 11/28/00), 774 So.2d 84, wherein the supreme court held

that La.R.S. 9:2800.6 governs claims brought against merchants.2

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We note that the plaintiff and the trial court reference a defect in the premises in
accordance with the language of La.Civ.Code art. 2317.1. Louisiana Civil Code Article 2317.1
provides:

The owner or custodian of a thing is answerable for damage occasioned by
its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of
reasonable care, should have known of the ruin, vice, or defect which caused the
damage, that the damage could have been prevented by the exercise of reasonable
care, and that he failed to exercise such reasonable care. Nothing in this Article
shall preclude the court from the application of the doctrine of res ipsa loquitur in
an appropriate case.

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Louisiana Revised Statutes 9:2800.6 provides:

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

(2) “Merchant” means one whose business is to sell goods, foods,
wares, or merchandise at a fixed place of business. For purposes of this
Section, a merchant includes an innkeeper with respect to those areas or
aspects of the premises which are similar to those of a merchant,
including but not limited to shops, restaurants, and lobby areas of or
within the hotel, motel, or inn.

As discussed throughout this opinion, however, La.R.S. 9:2800.6 is the applicable law.

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D. Nothing herein shall affect any liability which a merchant may
have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

The supreme court instructed that the plaintiff must prove all of the elements

listed above in order to succeed in her cause of action. White v. Wal-Mart Stores,

Inc., 97-393 (La. 9/9/97), 699 So.2d 1081. Further, the supreme court held that “[t]he

statute does not allow for the inference of constructive notice absent some showing

of the temporal element. The claimant must make a positive showing of the existence

of the condition prior to the fall.” Id. at 1084. This determination of whether the

temporal element is sufficient to establish that the merchant had constructive notice

of the hazardous condition is a question of fact. Id.

This court stated in Barton v. Wal-Mart Stores, Inc., 97-801, pp. 4-5 (La.App.

3 Cir. 12/10/97), 704 So.2d 361, 364, that:

A trial court’s finding of 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. Myles v. Brookshires
Grocery Co., 29,100 (La.App. 2 Cir. 1/22/97), 687 So.2d 668.

Application of the Elements

In its written reasons, the trial court stated:

The Court finds that the evidence (most specifically the very
candid testimony of the store manager) shows by a preponderance of the
evidence that the crack, which the Court finds to be a defect in the
premises itself, caused the accident. This is true whether the crack
created an uneven surface or the rug, which covered up the crack,
caused the fall. Consequently, the Court finds the defendant to be solely
at fault in the accident.

Our review of the record reveals a lack of evidentiary support for any of the

elements listed in La.R.S. 9:2800.6. Accordingly, the trial court’s ruling was

manifestly erroneous.

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The first element contemplates whether a condition presented an unreasonable

risk of harm. The record does not contain evidence that any condition imposing an

unreasonable risk of harm existed. If the crack in the floor was the relevant

“condition,” there was a lack of proof that it was displaced or that it, in any way,

posed an unreasonable risk of harm. Mr. Priester, the store manager, testified that the

duct tape, which was placed on top of the crack, “wasn’t uneven.” No other

testimony or evidence indicated that the crack created an unreasonable risk of harm.

Insofar that the plaintiff may argue that the rug qualified as the “condition”,

there was no evidence that it was wrinkled or folded as to create an unreasonable risk

of harm. While the plaintiff’s deposition and trial testimony revealed that she tripped

on the rug, we note that she testified that she did not see the rug until after she fell.

Further, she did not know if it was disturbed at all prior to her fall or, if it was

wrinkled, how long it had been that way. Accordingly, there was no indication that

the presence of the rug or the crack posed an unreasonable risk of harm.

The second element that must be analyzed is whether the merchant created the

condition that caused the damage or whether the merchant had actual or constructive

notice of said condition prior to the occurrence. The plaintiff only proved that there

was a crack in the floor and that the merchant placed a rug on top of the crack.

Again, there is no indication that its presence, alone, presented an unreasonable risk

of harm. Consequently, the plaintiff did not prove that the merchant created a

condition that caused harm. From the outset, also, we note that the record does not

support a finding that the defendant had actual notice of the rug being a condition

which would create harm, as no testimony or evidence was put forth establishing that

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the defendant knew that the rug was buckled or wrinkled at the time of the plaintiff’s

fall.

Louisiana Revised Statutes 9:2800.6 states “‘[c]onstructive 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.” Concerning the

defendant’s constructive notice of the rug, the temporal nature of this element was not

satisfied insofar as the plaintiff stated that she did not know how the rug wrinkled or

how long it had been that way before she fell. Further, the deli manager, Ms. Dorsey,

testified that she had straightened the rug one to two minutes prior to the plaintiff’s

fall and then walked away to re-shelve a bottle of soda.

The second circuit considered a similar case in Hubbard v. AP3 Investments,

LLC, 43,673, p. 3 (La. App. 2 Cir. 11/19/08), 997 So.2d 882, 884, wherein it stated

that:

A plaintiff is not required to prove by eyewitness testimony that
the hazardous condition existed for a certain number of minutes prior to
the fall. Instead, the factfinder can reasonably infer from circumstantial
evidence that it is more probable than not that the condition existed for
such time prior to the accident that it should have been discovered and
corrected. Bassett v. Toys “R” Us Delaware, Inc., 36,434 (La.App.2d
Cir.12/30/02), 836 So.2d 465, writ denied, 2003-0560 (La.4/25/03), 842
So.2d 408.

However, the second circuit, noting that the plaintiff did not see the condition of the

rug prior to the fall and was merely assuming that she tripped on an overturned

portion of the rug, affirmed the granting of the defendant’s motion for summary

judgment. It held:

[The plaintiff] has not presented any evidence that she can make
a positive showing that the damage-causing condition existed for some
period of time, and that such time was sufficient to place the merchant
defendant on notice of its existence. There is also no evidence that [the
defendant] created or had actual knowledge of the damage-causing

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condition. [The plaintiff] has not produced factual support sufficient to
establish that she will be able to satisfy her burden of proving that [the
defendant] created or had actual or constructive knowledge of the
damage-causing condition. Accordingly, the trial court did not err in
granting the motion for summary judgment.

Id. at 886-87.

Similarly, the plaintiff in the case before us did not make a positive showing

that the defendant had notice of the rug being out of place, insofar as she stated that

after the fall she “was trying to find out what it was that [she] had tripped over.” She

confirmed that she did not see the rug before she fell and did not know what

“disturbed it,” but she, ultimately, concluded that the “rug would have to be wrinkled

up for [her] to trip over it.” Further, we find of particular importance the fact that the

deli manager straightened the rug just minutes before the plaintiff’s accident.

Additionally, the notice element of the statute also requires a showing that the

condition caused the damage. Aside from the testimony that a rug was on the floor,

there is no evidence that the rug actually caused the plaintiff’s fall.

Thus, there is no evidence in the record to show that the defendant created a

condition presenting an unreasonable risk of harm or that it had actual or constructive

notice of the condition which caused the damage, prior to the occurrence.

Finally, the last element addresses whether the merchant failed to exercise

reasonable care. Again, testimony indicates that an employee observed and

straightened the rug only minutes before the plaintiff’s fall. As such, there is no

showing that the defendant did not exercise a reasonable degree of care.

After reviewing the facts in light of the statutory standard, we find that the trial

court committed manifest error in ruling that the defendant was liable. Accordingly,

we reverse and render judgment.

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We note that the plaintiff argues that this case is governed by La.Civ.Code art.

2317.1. Notwithstanding the above analysis under La.R.S. 9:2800.6, and assuming

for purposes of argument that La.Civ.Code art. 2317.1 is applicable, the claim fails

for the same reasons. There was no evidence that a “defect” existed. A crack in the

floor or a rug on the floor, alone, do not prove the existence of a defect. Nor was

there proof as to causation or lack of reasonable care on the part of the defendant.

Excessive Damages

The defendant’s second assignment of error regarding an excessive damage

claim is rendered moot in light of our reversal.

DECREE

For the foregoing reasons, the trial court’s judgment in favor of the plaintiff,

Linda G. Bonstell, is reversed. Judgment is rendered in favor of the defendant. All

costs of this proceeding are assessed against the plaintiff.

REVERSED AND RENDERED.

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