Opinion
No. 1899.
February 15, 1967. Rehearing Denied March 8, 1967. Writ Refused May 1, 1967.
APPEAL FROM TWENTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY, LESSLEY P. GARDINER, J.
Davidson, Meaux, Onebane Donohoe, by Timothy J. McNamara, Lafayette, for defendants-appellants.
C. Kenneth Deshotel, Opelousas, for plaintiffs-appellees.
Before TATE, SAVOY, and HOOD, JJ.
Mrs. Singleton and her husband sue for tort damages occasioned by her personal injuries. She slipped and fell in a self-service grocery store. She and her husband sue the operator of the store (Foodtown) and its liability insurer. The defendants appeal from an award to the plaintiff. The plaintiffs answer the appeal to request an increase in the award.
The present case was consolidated for trial and appeal with Singleton v. Laudumiey, La. App., 195 So.2d 435. The latter involves Mrs. Singleton's claim for injuries in an automobile accident which occurred a week earlier than the present "slip-fall". Except for a slight overlapping of the personal injuries, the suits are not otherwise related. The Laudumiey claim involved mostly a neck injury, whereas the present involves mostly a back injury.
Mrs. Singleton slipped and fell while shopping for bananas at 5:00 P.M. on May 9, 1964. She stated that her foot slipped in banana juice which had dripped from a basket of ripe bananas left in the aisle by Foodtown's employees.
Foodtown argues most forcefully that the evidence fails to establish that there was any banana juice or other foreign substance in the aisle. Alternatively, it contends that the plaintiffs have not established that even if such substance was there, it was so situated either because of negligence on the part of Foodtown or else had so remained for a sufficient time for Foodtown to be charged with constructive notice. The issues are essentially factual.
Mrs. Singleton testified that immediately prior to the accident she had gone to the rear of the store to purchase some bananas, that a wire shopping basket containing some overripe bananas was near the banana counter, and that "all at once I just went down on the drippings from the bananas." There were no eyewitnesses to the accident. Mrs. Singleton stated that "I was close enough that I could see it was banana drippings off of the bananas out of that basket," and that after she had fallen she saw a pretty good sized spot of this substance on the floor. She conceded, however, that she had not touched or smelled the substance which was on the floor, but that she was sure that it was banana juice because it was beneath the basket of ripe bananas and because with her foot she felt it was slimy.
Three employees of the defendant storekeeper went to the site of the accident immediately after the fall occurred. Two of them testified that Mrs. Singleton informed them that she had slipped on some banana juice, and that she pointed to a place on the floor indicating where she had slipped. Each of these employees testified that they did not see any foreign substance or liquid of any kind on the floor, and that they did not see a shopping basket of bananas in that vicinity.
These employees also admitted that at least at one time Foodtown had sold its ripe bananas from a shopping basket kept in the aisle near the fresher bananas in the bins. One of them frankly testified that overripe bananas dripped banana juice and that such juice was very slippery. However, two of the employees did testify that by the time of Mrs. Singleton's fall, Foodtown had changed its method of disposing of ripe bananas and instead placed them in cellophane bags. According to one employee, this change had occurred only a month before Mrs. Singleton's fall, and the other made no estimate when the change had occurred. (The third employee never testified that such a change in the display and retailing of ripe bananas had occurred.)
In accepting Mrs. Singleton's testimony over that of the store employees, the trial court specifically stated he was impressed with her sincerity and accuracy. Its finding that she slipped on banana juice dripping from a shopping basket full of ripe bananas should not be disturbed on review, for it amounts to a reasonable evaluation of credibility of all the witnesses in the light of all the evidence in the record.
Under this evaluation, the trial court could properly reject the denial of the store employees that the basket of ripe bananas was displayed for sale in the aisle in accordance with the custom of the store. In view of Mrs. Singleton's credible positive testimony, the trial court could properly find inaccurate the recollection (at the trial twenty months later) of (two of) the store employees that Foodtown had changed its method of displaying ripe bananas shortly before (instead of shortly after) Mrs. Singleton's unfortunate accident.
The conclusions of fact reached by the trial judge are entitled to great weight, especially when those conclusions are based upon an evaluation of the credibility of the witnesses. Miers v. Truck Insurance Exchange, 180 So.2d 559 (La.App. 3d Cir. 1965); Cinquemano v. O'Quinn, 180 So.2d 873 (La.App. 1st Cir. 1965). In this instance, although a serious question of fact is presented, we are unable to say that the trial judge erred in concluding that Mrs. Singleton actually slipped on some banana juice, which was on the floor of defendant's store as a result of dripping of ripe bananas from a shopping basket placed in the aisle for display and retailing purposes.
Under these findings, Foodtown's negligence is actionable when causing the foreseeable injury resulting in this case. Foodtown's employees created an unreasonable hazard to the safe use of its aisles by customers, when they placed ripe bananas where they could drip and make the passageway inconspicuously slippery. A storekeeper breaches its duty to maintain safe passageways for its customers when it permits or causes a slippery spot in the path of customers, whose major attention is by the storekeeper's intention to be directed to inspecting the merchandise deliberately displayed to attract the customer's eye. See Dever v. George Theriot's, Inc., La. App. 3 Cir., 159 So.2d 602, and many decisions therein cited.
As to the award, the trial court awarded $4,000 general damages to the plaintiff wife, and $1,193.54 to the plaintiff husband for medical expenses for the injuries sustained in the present accident. Rejecting the plaintiffs' claim of insufficiency and the defendants' of excessiveness, we find no abuse in the trial court's great discretion in the award of these general damages for Mrs. Singleton's personal injuries, namely, an aggravation into painfulness for an extended period of time of a pre-existing spondylolisthesis and a preexisting arthritic condition, both previously symptomless. See, e. g., Fisher v. Norwich Union Fire Insurance Society, Ltd., La. App. 1 Cir., 119 So.2d 562. Likewise, for the reasons noted by the trial court in its opinion, we will neither add future medical nor maid's expenses to the special damages as prayed for by the plaintiffs, nor will we reduce the attending physician's charges as sought by the defendants.
Medical treatment for the present injuries was segregated from the medical expense incurred for treatment of the injuries in the earlier accident for which recovery is sought in the consolidated suit cited at Footnote 1.
For the foregoing reasons, we affirm the judgment of the District Court. The defendants-appellants are to pay the costs of this appeal.
Affirmed.
I am unable to agree with my esteemed colleagues in the conclusions which they have reached in this case.
This case was consolidated for trial with another damage suit filed by the same plaintiffs but arising out of another accident. The trial judge assigned only one "reasons for judgment," but he discussed both cases in that opinion. The following is all that the trial judge said in his reasons for judgment relating to the facts and to the question of liability in this case:
"We then have the matter of the injury suffered by the plaintiff, Mrs. Singleton, in the Foodtown store. She testified that while she was on a shopping expedition, she slipped and fell because there was some substance, banana juice or water or some other substance which caused her to slip and fall. Several of the employees or former employees of Foodtown testified their attention was called to her having fallen and they responded to the warning or notice that she had fallen, none of them assisted her; they stated they found her in a kneeling position with a hand on one of the racks or bins and she arose. Two of the witnesses testified she stated she slipped in banana juice. There is some question, they didn't see any bananas around, ripe bananas in the carts which she contended were present.
"I am impressed with the sincerity of the plaintiff here and what she has said. The employees made a cursory glance the best I can evaluate their testimony and said they saw nothing. Nothing further was done. No one made any further examination or inspection of it. I don't think the doctrine of res ipsa loquitur applies, but I do think, that in evaluating the testimony it is affirmative and, I believe, the truthful testimony of this lady and the other equally truthful testimony of the defendants, but they just — one of them said it was just a few seconds he was there and left, and it was not sufficient examination in my opinion to say that this lady didn't slip in what she said she slipped in. But, nevertheless, we get down to the question of medical testimony here." (Emphasis added.)
On the basis of that opinion, the majority has held that it is "unable to say that the trial judge erred in concluding that Mrs. Singleton actually slipped on some banana juice, which was on the floor of defendant's store as a result of dripping of ripe bananas from a shopping basket placed in the aisle for display and retailing purposes." The majority further held that "under these findings," obviously referring to the findings of the trial judge, " Foodtown's employees created an unreasonable hazard to the safe use of its aisles by customers, when they placed ripe bananas where they could drip and make the passageway inconspicuously slippery."
I do not believe the trial judge arrived at any such conclusions, and if he did I think he clearly would have committed manifest error in doing so.
In the first place, I think the evidence completely fails to show that there was any banana juice on the floor at all. Mrs. Singleton is the only witness who saw any kind of foreign matter on the floor. My interpretation of her testimony is that she does not know what the liquid on the floor was that caused her to slip, but she merely assumed that it was banana juice. She said it was a clear liquid, whereas uncontradicted evidence shows that drippings from overripe bananas is "reddish black" in color. The trial judge, recognizing the uncertainty of her testimony, correctly stated in his reasons for judgment that Mrs. Singleton "testified that while she was on a shopping expedition, she slipped and fell because there was some substance, banana juice or water or some other substance which caused her to slip and fall." He then observed that the employees of the store, all of whom denied that there was any foreign substance on the floor or a basket of bananas in the vicinity, had not made a careful inspection of the site of the accident, and he concluded that "it was not sufficient examination in my opinion to say that the lady didn't slip in what she said she slipped in."
A correct interpretation of the finding of the trial judge is that Mrs. Singleton slipped on "some substance, banana juice or water or some other substance," since that is "what she said she slipped in." It may be, as assumed by the majority, that the trial judge meant to hold that she slipped on banana juice, but if he did then the evidence and his own reasons for judgment show that he committed manifest error in so holding. I am convinced that the evidence does not support such a finding.
Assuming, however, that the substance on which Mrs. Singleton slipped was banana juice, rather than a much more likely substance such as water or one of many clear liquids that customers may purchase in any grocery store, I disagree with the majority in its statement that the trial judge found (1) that she slipped "as a result of dripping of ripe bananas from a shopping basket," or (2) that the basket had been "placed in the aisle for display and retailing purposes," or (3) that "Foodtown's employees * * * placed ripe bananas where they could drip and make the passageway inconspicuously slippery." A reference to the reasons for judgment handed down by the trial judge shows that he made no such findings. And a thorough examination of the record reveals that there is not one scintilla of evidence which in any way tends to support any one of those conclusions.
Not a single witness said that an employee of the defendant store had placed bananas in a shopping basket, that a basket of bananas had been placed in the aisle by anyone connected with the store, that the basket of bananas which Mrs. Singleton saw was "for display and retailing purposes," or that the agents or employees of the store even knew that there was a basket of bananas in the store at that time. Mrs. Singleton herself made no statements which in any way indicated that employees of the store had anything to do with the basket of bananas which she saw. As opposed to this, the employees of the storekeeper, whom the trial judge regarded as being "equally truthful," gave positive testimony that the store had no connection whatsoever with placing a basket of bananas in that vicinity.
If a basket of bananas was in the vicinity of the place where Mrs. Singleton fell, then the most logical explanation of its presence there would be that another customer had placed some of these bananas in his shopping basket with the intent of purchasing them. That may have occurred, and the customer may have moved the basket away to some other part of the store immediately after the accident occurred, thus explaining why there was no basket of bananas anywhere in that vicinity when three store employees arrived at the scene of the accident within moments after it occurred.
It also appears to me that if a basket of bananas had been allowed to remain in the aisle long enough for drippings to accumulate on the floor, the drippings obviously would be under the basket. It is unlikely that Mrs. Singleton stepped under a basket at the time she slipped. Counsel for plaintiffs, recognizing the fact that Mrs. Singleton could not have slipped on banana juice drippings while the basket was still over that spot, argues that "these bananas dripped on the floor and when the basket was moved, unsuspecting customers would walk on this and fall, with resulting injuries." The position taken by counsel in his brief is the only one which can be taken with any logic, but it brings out the fact that if the accident occurred as plaintiffs contend then the alleged basket of bananas necessarily must have been moved before Mrs. Singleton slipped, and that her present claim that she slipped on drippings from a basket of bananas which had formerly been at that location was merely an assumption on her part and was not based on anything which she observed.
There is no evidence at all, of course, to show that prior to the accident the defendant storekeeper had any knowledge of the fact that there was a foreign substance on the floor, or that a basket containing bananas was located in the aisle of the store. And there is no evidence to show how long the basket of bananas which Mrs. Singleton saw had been there before the accident occurred. There is nothing in the record, therefore, on which a holding could be based that the defendant storekeeper knew or should have known of the alleged dangerous condition of the floor before the accident occurred.
Under our law, a storekeeper is not the insurer of the safety of his customers. He need only keep the floors and passageways of his store in a reasonably safe condition, for use in a manner consistent with the purpose of the premises, and in doing so he is required only to exercise the degree of care which would be exercised by an ordinarily prudent person under similar circumstances. He is not liable for injuries caused by a foreign substance on the floor of the store, unless (1) that substance had been placed or left in that position by the storekeeper, his agents or employees, or (2) if placed there by someone else, it is shown that the storekeeper had actual or constructive knowledge of the fact that it was on the floor for a long enough period of time that he could have removed it prior to the time of the accident. Peters v. Great Atlantic Pacific Tea Company, 72 So.2d 562 (La.App. 2d Cir. 1954); Lejeune v. Hartford Accident and Indemnity Co., 136 So.2d 157 (La.App. 3d Cir. 1962, cert. denied); and Levine v. Hartford Accident Indemnity Company, 149 So.2d 433 (La.App. 3d Cir. 1963).
In my opinion the established principles of law hereinabove stated have not been applied in this case. The effect of this judgment, I think, is to hold the storekeeper liable on a mere showing that an accident occurred on its premises.
For these reasons, I respectfully dissent.
On Application for Rehearing.
En Banc. Rehearing denied.
HOOD, J., is of the opinion that a rehearing should be granted.