Gwenda C. Orr, Et Ux. v. Academy Louisiana Co., LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1411

GWENDA C. ORR, ET UX.

VERSUS

ACADEMY LOUISIANA CO., L.L.C.

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APPEAL FROM THE
ALEXANDRIA CITY COURT
PARISH OF RAPIDES, NO. 114,239
HONORABLE RICHARD E. STARLING, JR., CITY COURT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Marc T. Amy, Judges.

REVERSED AND RENDERED.

John O. Charrier
7908 Wrenwood Boulevard
Baton Rouge, LA 70809
(225) 218-8599
COUNSEL FOR PLAINTIFFS/APPELLEES:
Gwenda C. Orr and Thomas Orr

Charles K. Charrier
P. O. Box 1007
Alexandria, LA 71309
(318) 448-3952
COUNSEL FOR PLAINTIFFS/APPELLEES:
Gwenda C. Orr and Thomas Orr

Carl W. Robicheaux
2014 West Pinhook Road, Suite 604
Lafayette, LA 70508
(337) 235-7888
COUNSEL FOR DEFENDANTS/APPELLANTS:
Academy Louisiana Company, L.L.C.
Zurich American Insurance Company

Kimberly G. Anderson
3900 North Causeway Boulevard
Metairie, Louisiana 70002
(504) 219-2002
COUNSEL FOR DEFENDANTS/APPELLANTS:
Academy Louisiana Company, L.L.C.
Zurich American Insurance Company

PETERS, J.

The defendants, Academy Louisiana Company, L.L.C. (Academy) and its

liability insurer, Zurich American Insurance Company (Zurich American), appeal a

trial court judgment awarding the plaintiff, Gwenda C. Orr, $50,000.00 in general

and special damages for injuries she sustained in an accident which occurred at an

Alexandria, Louisiana store owned and operated by Academy. For the following

reasons, we reverse the trial court judgment and render judgment in favor of the

defendants, dismissing Mrs. Orr’s damage claims.

DISCUSSION OF THE RECORD

Academy owns and operates a chain of sporting goods stores generally

identified as the Academy Sports and Outdoor Stores (Academy Sports). At

approximately 6:30 p.m. on August 21, 2008, Mrs. Orr and her four-year-old great-

granddaughter, Lacey, entered the Academy Sports store in Alexandria, Louisiana,

to shop for school shoes for Lacey. While Mrs. Orr was attempting to assist the

child in trying on a pair of shoes, she was struck by an adult male riding a small

girl’s bicycle. The impact caused her to sustain significant personal injuries. The

man riding the bicycle offered her assistance, but when she refused his help, he left

the scene. Store personnel later located the bicycle after Mrs. Orr reported the

accident, but were unable to locate the bicycle rider.

Mrs. Orr filed suit in Alexandria City Court against Academy and Zurich

American,1 seeking both general and special damages. Her husband, Thomas Orr,

joined in the litigation, making a claim for loss of consortium damages based on

Mrs. Orr’s injuries. The defendants answered the petition by denying liability and

1
The original petition incorrectly listed Zurich American Insurance Company as Zurich
North America. However, insurance coverage is not an issue in this litigation.

asserting the fault of the unknown bicycle rider and the comparative fault of Mrs.

Orr as the cause of the plaintiffs’ damages.

Following a May 14, 2012 trial on the merits, the trial court took the matter

under advisement. On July 13, 2012, the trial court rendered reasons for judgment,

finding that Academy was one hundred percent at fault in causing Mrs. Orr’s

accident. Finding that Mrs. Orr sustained $17,538.08 in medical expenses and

suffered $45,000.00 in general damages, the trial court awarded Mrs. Orr its

jurisdictional limit of $50,000.00 in damages. 2 After the trial court executed a

November 21, 2012 judgment, the defendants perfected this appeal, asserting three

assignments of error:

1. The trial court erred in finding that plaintiff met her burden of
proof.

2. The trial court erred in finding Academy was negligent when
the incident could not have been reasonably anticipated.

3. The trial court erred in failing to assign fault on the unknown
customer/tortfeasor.

OPINION

A trial court’s findings of fact are reviewed on appeal pursuant to the

manifest error—clearly wrong standard of review. Rosell v. ESCO, 549 So.2d 840

(La.1989). However, an appeal raising a question of law requires the reviewing

court to determine whether the trial court was legally correct in its ruling. Brooks v.

Popeye’s, Inc., 11-1086 (La.App. 3 Cir. 3/14/12), 101 So.3d 59, writ denied, 12-

1755 (La. 11/2/12), 99 So.3d 676.

The evidence presented is basically not in dispute. Photographs reveal that

the bicycles are displayed on a three-tier racking system traversing one side of the

2
Both the reasons for judgment and the judgment are silent concerning Mr. Orr’s loss of
consortium claim.

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bicycle aisle. Each bicycle sits on a slanted stand, comprised of a u-shaped metal

bar. The bicycle is held upright by front and rear, inverted L-shaped stands, which

cradle the bicycle’s tires. The front-stand system, which fits around the front of

the tire, locks into place by a collar located on the u-shaped metal bar, which

unlocks by sliding backwards. The rear-stand system, comprised of two stands

which fit around the front and back of the rear tire, is connected to a movable plate,

located inside the channel of the u-shaped metal bar.

According to Mr. Randall C. Hoben, the Alexandria store director, one must

unlock the front stand by sliding the collar backwards and then lowering the stand

in order to remove the bicycle from the rack. This action requires that the bicycle

be held in place to prevent the rear-stand system from sliding forward as the front

stand is lowered. Once the front stand is unlocked, the bicycle, whose rear tire is

still cradled in the rear stand, is pulled forward, lifted out of the rear stand, and

then lowered to the floor. Mr. Hoben testified that while it is somewhat difficult

for a bicycle to be removed from the rack, Academy’s policy is to encourage its

customers to handle all of the merchandise except for guns and high-end fishing

reels. The only restriction placed on that policy is that customers are forbidden

from climbing store ladders. He testified that the bicycle display is located in the

team-sports department and that the racks holding the bicycles are designed to

keep the bicycles upright and stable and to prevent them from falling or rolling

forward onto customers. He also testified that the display allows for customers or

sales personnel to remove bicycles and further inspect them on the aisle floor. This

allows a potential purchaser to make a decision concerning which bicycle to

purchase and to transport it to the front of the store and complete the purchase at

the check-out area.

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The shoe department, on the other hand, is located in the rear of the store in

the opposite direction one might expect a customer to transport a bicycle. Mr.

Hoben testified that the bicycles are separated from the shoe department by an aisle

of bicycle and skateboard accessories. A customer going from the bicycle section

to the shoe department does so by one of two ways. He can either exit the bicycle

aisle by moving toward the center of the store and turning toward the back of the

store via the major store walkway,3 or he can exit the bicycle aisle in the other

direction and proceed toward the rear of the store along the exterior wall of the

store.

Both Mr. Hoben, who had been employed by Academy for fifteen years, and

Mary Beth Thomas, the manager on duty at the time of Mrs. Orr’s accident,

testified that they had never been involved in the investigation of an accident

similar to this. In fact, even Mrs. Orr suggested that “[n]ever in a million years”

would she have expected such an accident to occur in Academy Sports. Mr.

Hoben was more specific when he testified that in his fifteen years with Academy,

he had never heard of a customer being injured by a bicycle-riding customer. Mrs.

Orr also testified that when she passed the bicycle aisle on her way to the shoe

department just moments before the accident, she did not observe anyone riding a

bicycle in that aisle. Additionally, she asserted that there was more than enough

room in the aisle where the accident occurred for the man to pass her on the

bicycle.

3
This walkway, which is referred to in the record as the racetrack, circles the store in
order to give each customer direct access to every department from the same aisle.

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Assignments of Error Numbers One and Two

In its reasons for judgment, the trial court concluded that this was “a simple

negligence case.” In their first assignment of error, the defendants assert that the

trial court erred in not applying the provisions of La.R.S. 9:2800.6 to Mrs. Orr’s

burden of proof, and this failure resulted in Mrs. Orr not meeting her burden of

proof under that statute. In their second assignment of error, the defendants assert

that the trial court erred in finding them negligent when the incident itself could

not have been reasonably anticipated. We will consider these assignments of error

together.

With regard to Academy’s liability under general negligence concepts, the

trial court stated the following:

Academy is basically a self service sporting goods store. It does have
items other than sporting goods such as clothes and shoes, but the
sporting goods are in most cases available for the customer to remove
from the racks and shelves. Academy encourages the customer to
take items from the racks and shelves so that they can feel, see and
somewhat experiment with the use of the equipment. It is foreseeable
that a person would remove the bicycle from the rack in an effort to
examine before purchasing it. In fact, it would seem to the court, in
most cases a person would have to remove the bicycle from the rack
to determine if it is the right size for the purchaser’s desired use.
While it may not be advisable, the court certainly believes that it is
foreseeable that an individual would get on a bicycle and somewhat
maneuver it with his or her feet to determine if it is functional for the
purchaser. A bicycle is built to be mobile. The court believes that all
parties agree, if; this item was secured so that it could not be removed
from the rack, the accident does not occur. The photographs
introduced into evidence by the defendants make it clear that securing
the bicycles, on the rack, whereby they can not [sic] be moved without
the help of a store employee would be easy and inexpensive.

Accordingly, the court is of the opinion that the bicycles should
be secured in such a way that the customer can not [sic] test it without
an employee assisting him or her. The court also believes that at the
very least a sign should be present advising customers not the [sic]
ride a bicycle in the store and that a sales associate should be
summoned prior to removing a bicycle from the rack. Accordingly,

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the court finds Academy 100% at fault for the injuries to Ms. Gwenda
Orr.

Generally, negligence claims in Louisiana are evaluated under a duty-risk

analysis. This involves a five-step process which requires that the party, alleging

another’s fault, establish the following:

(1) the defendant had a duty to conform his conduct to a specific
standard (the duty element); (2) the defendant’s conduct failed to
conform to the appropriate standard (the breach element); (3) the
defendant’s substandard conduct was a cause in fact of the plaintiff’s
injuries (the cause-in-fact element); (4) the defendant’s substandard
conduct was a legal cause of the plaintiff’s injuries (the scope of
liability or scope of protection element); and (5) the actual damages
(the damages element). A negative answer to any of the inquiries of
the duty-risk analysis results in a determination of no liability.

Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La. 3/10/06), 923 So.2d 627,
633 (citations omitted).

In certain fact-specific situations, the Louisiana Legislature has codified the

duty and breach-of-duty requirements of the duty-risk analysis as it applies to

merchants. Louisiana Revised Statutes 9:2800.6 bears the title “Burden of proof

in claims against merchants” and provides as follows:

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.

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(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.

D. Nothing herein shall affect any liability which a merchant
may have under Civil Code Arts. 660, 667, 668, 2317, 2322, or 2695.

The defendants argue in the matter before us that the trial court erred in

considering this matter as a “simple negligence case” and in not applying La.R.S.

9:2800.6 to the facts at hand. We disagree. While La.R.S. 9:2800.6(A), when read

alone, might cause one to conclude that the statute is applicable to all negligence

cases involving a merchant, when read in conjunction with the remainder of the

statute, it is clear that the keeping of “aisles, passageways, and floors in a

reasonable safe condition” requirement of La.R.S. 9:2800.6(A) relates to the slip

and fall liability set forth in La.R.S. 9:2800.6(B).

Our conclusion that La.R.S. 9:2800.6 is not all inclusive with relation to

merchant negligence liability, is supported by the decision in Manning v. Dillard

Department Stores, Inc., 99-1179, p. 3 (La. 12/10/99), 753 So.2d 163, 165,

wherein the supreme court stated the following with regard to merchant liability:

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Louisiana courts have adopted a duty-risk analysis to determine
whether a party is liable for negligence under the facts of a particular
case. Mart v. Hill, 505 So.2d 1120 (La.1987). Generally, the owner
or operator of a facility has the duty of exercising reasonable care for
the safety of persons on his premises and the duty of not exposing
such persons to unreasonable risks of injury or harm. St. Hill v. Tabor,
542 So.2d 499 (La.1989); Harris v. Pizza Hut of La., Inc., 455 So.2d
1364 (La.1984).

The Manning decision is similar to the factual matter before us in that it involved a

customer injured by the actions of a third party, a credit-card thief fleeing from

store-security personnel. In rendering the decision that the store was not liable for

the customer’s damages, the supreme court applied the basic duty-risk analysis

without mention of the particulars of La.R.S. 9:2800.6.

The fact that we do not find the trial court erred in applying general

negligence concepts to this case does not end our inquiry. We must now review

the trial court’s finding of negligence on the part of Academy by applying the

duty-risk analysis to determine whether the trial court erred in finding Academy

negligent. In doing so, we first note that the supreme court has clearly asserted the

duty owed by Academy toward Mrs. Orr. Academy is required to exercise

“reasonable care for the safety of persons on [its] premises and the duty of not

exposing such persons to unreasonable risks of injury or harm.” Manning, 753

So.2d at 165.

We find, however, that the trial court erred in concluding that Academy

breached this duty. As pointed out in Manning, “a business establishment is not

the insurer of its patrons’ safety.” Id. (citation omitted). We agree with the trial

court that it is foreseeable (and in fact encouraged) for a customer to remove a

bicycle from the rack to see if it is the proper size, and it is foreseeable that the

customer might ride the bicycle a short distance in furtherance of reaching that

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determination. However, after reviewing the photographs of the bicycle racks and

aisle, we do not find it foreseeable that a customer would ride a bicycle beyond this

aisle to any other place in the store during this process.

While granting its customers access to the bicycles, Academy has devised a

display that would make it difficult for most customers to determine how to

remove a bicycle from the rack, prompting a need for a customer service

representative. All sporting goods stores are stocked with merchandise which, if

used improperly, could cause damage to other customers. To conclude that a

customer’s access to an unlocked bicycle rack constitutes an unreasonable risk of

harm would easily extrapolate to a requirement that the other basic sporting-goods

merchandise such as bats, golf clubs, and balls would require similar treatment.

We do not find that Academy’s duty extends this far.

Considering our findings regarding the foreseeability of a customer riding a

bicycle anywhere beyond the bicycle aisle, we find that the trial court erred in

finding that Academy breached the duty it owed Mrs. Orr of exercising reasonable

care for the safety of its customers and of not exposing those customers to

unreasonable risks of injury or harm. Both Mr. Hoben and Mrs. Thomas testified

that during their tenure with Academy, they have never heard of a customer being

injured by a bicycle-riding customer. Moreover, even Mrs. Orr stated that “never

in a million years” would she expect this sort of incident to occur in Academy.

Accordingly, we reverse the trial court judgment in favor of Mrs. Orr, and

we render judgment in favor of Academy Louisiana Company, L.L.C. and Zurich

American Insurance Company, finding they are not liable to Mrs. Orr as a result of

her accident.

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Based on this finding, we need not address Academy’s remaining

assignment of error.

DISPOSITION

For the foregoing reasons, we reverse the judgment of the trial court and

render judgment in favor of Academy Louisiana Company, L.L.C. and Zurich

American Insurance Company, dismissing the claims of Gwenda C. Orr against

them. We assess the costs of this appeal to Gwenda C. Orr.

REVERSED AND RENDERED.

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