Opinion
2021 CA 0718
02-25-2022
DEBRA A. EUGENE v. DG LOUISIANA, LLC, DOLGENCORP, LLC, RIDGELAND PROPERTIES, LLC AND MCVEY PROPERTIES NO. 10, LLC
Richard A. Thalheim, Jr. Thibodaux, Louisiana COUNSEL FOR APPELLANT PLAINTIFF- Debra A. Eugene Trevor C. Davies Shannon O. Harrison Max C. Hadley New Orleans, Louisiana COUNSEL FOR APPELLEES DEFENDANTS- DG Louisiana, LLC and McVey Properties No. 10, LLC
NOT FOR PUBLICATION
Appealed from The Sixteenth Judicial District Court Parish of St. Mary State of Louisiana Docket Number 134, 041 Division F The Honorable Gregory P. Aucoin, Presiding Judge
Richard A. Thalheim, Jr. Thibodaux, Louisiana COUNSEL FOR APPELLANT PLAINTIFF- Debra A. Eugene
Trevor C. Davies Shannon O. Harrison Max C. Hadley New Orleans, Louisiana COUNSEL FOR APPELLEES DEFENDANTS- DG Louisiana, LLC and McVey Properties No. 10, LLC
Before: McClendon, Welch, and Theriot, JJ.
WELCH, J.
In this merchant liability case, the plaintiff appeals a judgment rendered following a bench trial, which dismissed her personal injury claims against the defendants. We affirm the judgment and issue this memorandum opinion in compliance with Uniform Rules, Courts of Appeal Rule 2-16.1(B).
This suit arises from an accident that occurred on September 6, 2018, when the plaintiff, Debra A. Eugene, hit the fifth toe (pinky toe) of her left foot on the corner of the cash register desk at the Dollar General Store located in Morgan City, Louisiana, causing her to allegedly suffer a fracture to her toe. Mrs. Eugene filed a petition for damages on August 14, 2019, naming DG Louisiana, LLC ("DG") and Ridgeland Properties, LLC as defendants. By amended petition, Mrs. Eugene named McVey Properties No. 10, LLC as a defendant.
In her first petition, Mrs. Eugene also named "Dolgencorp, LLC" as a defendant. In its answer, DG stated that Mrs. Eugene incorrectly identified DG as "Dolgencorp, L.L.C."
Mrs. Eugene voluntarily dismissed all claims against Ridgeland Properties, LLC, without prejudice, in an order signed on September 28, 2020.
The matter proceeded to a one-day bench trial on the merits conducted on November 5, 2020. Over the course of the trial, Mrs. Eugene offered the following evidence in support of her claim: video surveillance of the incident; the lease of the store; portions of DG's Standard Operating Procedures manual; copies of the customer incident report; photographs; and uncertified hospital reports, medical reports, and various medical bills. Mrs. Eugene also offered her own live testimony; the live testimony of store manager, Jackie Clark; and the live testimony of her husband, Mark Eugene. DG also offered evidence, including photographs; excerpts of Mrs. Eugene and Mr. Eugene's depositions; and the live testimony of Jackie Clark. The parties submitted post-trial memoranda, and the trial court took the matter under advisement.
Prior to trial, the parties stipulated that Mrs. Eugene's damages were less than $50,000.00, exclusive of interest and costs.
On December 7, 2020, the trial court rendered a final judgment wherein it dismissed Mrs. Eugene's claims with prejudice. In written reasons for judgment, the trial court held that DG did not fail to exercise reasonable care to keep its aisles, passageways, and floors in a reasonably safe condition, nor was any unreasonably dangerous condition created by DG. The trial court also held that Mrs. Eugene did not sustain any injury. Mrs. Eugene appealed.
Mrs. Eugene filed a motion for devolutive appeal on February 8, 2021. The trial court signed an order of appeal on January 8, 2021, notice of which was transmitted to the parties by the Clerk of Court on February 9, 2021.
Mrs. Eugene's claims against DG are governed by the merchant liability statute, La. R.S. 9:2800.6, which provides, 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.
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.
Under the applicable law, plaintiff has the burden of proving at trial that: (1) the register desk was an unreasonable risk of harm that was reasonably foreseeable; (2) DG had either actual or constructive notice of the condition that caused the damage; and (3) DG failed to exercise reasonable care to eliminate the condition. See La. R.S. 9:2800.6(B). Failure to prove any one of these requirements is fatal to a plaintiffs case. Primeaux v. Best W. Plus Houma Inn, 2018-0841 (La.App. 1st Cir. 2/28/19), 274 So.3d 20, 28.
A merchant owes a duty to persons using his premises to exercise reasonable care to keep such premises in a reasonably safe condition. La. R.S. 9:2800.6(A). A hazardous condition is one that creates an unreasonable risk of harm to customers under the circumstances. Pena v. Delchamps, Inc., 2006-0364 (La.App. 1st Cir. 3/28/07), 960 So.2d 988, 991, writ denied, 2007-0875 (La. 6/22/07), 959 So.2d 498. However, merchants are not insurers of their patrons' safety, and a customer is under a duty to use ordinary care to avoid injury. Primeaux , 274 So.3d at 28. Accordingly, a merchant is not absolutely liable every time an accident happens. Williams v. Liberty Mutual Fire Insurance Company, 2016-0996 (La.App. 1st Cir. 3/13/17), 217 So.3d 421, 424, writ denied, 2017-0624 (La. 6/5/17), 219 So.3d 338, citing Leonard v. Wal-Mart Stores, Inc., 97-2154 (La.App. 1st Cir. 11/6/98), 721 So.2d 1059, 1061. To prove a merchant created a condition that caused an accident, there must be proof that the merchant, and not a store patron, is directly responsible for the hazardous condition. Guillory v. The Chimes, 2017-0479 (La.App. 1st Cir. 12/21/17), 240 So.3d 193, 196. The absence of an unreasonably dangerous condition implies the absence of a duty on the part of the merchant. Primeaux, 274 So.3d at 28.
Courts have adopted a four-part risk-utility balancing test to determine whether a condition is unreasonably dangerous. This test requires consideration of: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activities in terms of its social utility or whether it is dangerous by nature. Primeaux , 274 So.3d at 28. "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. Moreover, 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. La. R.S. 9:2800.6(C)(1).
The evidence introduced at trial established that at the time of the incident, Mrs. Eugene was wearing a "shoe sock" or a slipper sock. She walked toward the cash register desk, where she handed an item to her husband to check out. At that time, she hit her left fifth toe. Following the incident, Mrs. Eugene sought treatment at Teche Regional Medical Center emergency room, where an x-ray was done of her left foot. She testified that Dr. Scott Domingue told her that her toe was fractured. However, the radiology report states "No fracture." Mrs. Eugene testified that the doctor gave her pain medication and a prescribed shoe boot. Mrs. Eugene returned to the store the next day to fill out a customer incident report. Later, Mrs. Eugene underwent x-rays at Franklin Foundation Hospital on October 16, 2018 and November 8, 2018, neither of which showed she suffered a fracture to her toe.
Video surveillance of the incident does not show exactly how Mrs. Eugene hit her toe. In her pre-trial deposition, Mrs. Eugene claimed that she hit her toe on a protruding "L" shaped object that was attached to the side of the cash register desk and used to display merchandise. The only "L" shaped object depicted in video surveillance at the time of the incident, however, is located on the side of the cash register desk near the rear, swinging door that serves as access to the area behind the cash registers. Since Mrs. Eugene did not walk in the area near the rear, swinging door, she could not have come into contact with any "L" shaped object. At trial, Mrs. Eugene argued that she stubbed her toe on the bottom of the counter of the cash register desk, arguing that the counter and the corner of the counter were concealed by yellow plastic bags that had fallen off the bagging carousel. Store manager Jackie Clark testified, however, that it was impossible for bags to hang all the way down the sides or front of the cash register desk because the bags hang on a bagging carousel, which sits on top of the counter. The video surveillance shows that at the time of the incident, there was only one bag laying on top of the counter; none were hanging or lying on the floor.
The trial court provided the following reasons for judgment:
On September 6, 2018, Debra Eugene hit her toe on the corner of the register desk at Dollar General in Morgan City, Louisiana. Debra Eugene contends that, while she was handing her husband items to check-out at the register, she hit her toe on an "L" shaped protrusion that was attached to the side of the register desk. She was wearing slipper socks at the time of the incident. Following the incident, Mrs. Eugene felt pain in her hip, shaking, and her feet hurt. A report was made with the store. She then sought treatment at Teche Regional Medical Center. According to Mrs. Eugene, she fractured her left little toe. Her foot was put in a hard walking boot and was given medication for pain. She saw Dr. Tuma for follow-up treatment and then saw Dr. Bryan Gary.
Store manager, Jackie Clark, testified that she was informed of the incident the day after. She reviewed the video surveillance of the incident and prepared an incident report along with Debra Eugene. Debra Eugene told her that she had fractured her toe in the incident caused by the register.
Under La. R.S. 9:2800.6A, a storeowner must exercise due care to keep aisles, passageways and floors in reasonably safe condition, including exercising reasonable effort to keep premises free of hazardous conditions. Debra Eugene claimed that the yellow colored bags handing over the corner of a black counter along with pegged merchandise protruding from the side of the counter into the aisle made an unsafe condition. At first, she claimed she hit an "L" shaped object on the bottom of the counter. Then she claimed the counter was shaped irregularly such that she could not see the counter due to yellow bags hanging on the side of the black
counter. Mr. Eugene testified that the bags covered the corner obstructing a clear view of the edge of the counter. After reviewing the evidence, the Court finds that the counter and the corner were not obstructed as claimed by the plaintiff. If the plaintiff hit the counter as claimed, then the merchandise hanging on the pegs or on the shelves should have alerted her to an obstruction of her forward progress in walking to place items on the counter. Based upon the evidence, the Court finds that there was no failure to exercise due care to keep [the] aisles, passageways[, ] and floors in [a] reasonably safe condition under La. R.S. 9:2800.6A nor was there an unreasonably dangerous condition created by the store.
No medical witness testified during trial other than through the medical records presented to the Court as evidence by the plaintiff. These records were not certified but through testimony, [Mrs.] Eugene stated she had gone to the various providers who gave her the copies of her medical records.
The Court has reviewed the medical records. The records of Teche Regional Medical Center reveal that, upon history of foot trauma, the x-rays show there is no evidence of fracture or soft tissue injury. All further x-ray reports provided through Franklin Orthopedics show no fracture identified, recent or old.
Based upon the medical records, the Court finds that Debra Eugene did not sustain a fractured toe in this incident or any other injury. The Court further finds based upon the evidence that Debra Eugene failed to prove a compensable injury caused by any fault other than her own. The aisles, passageways and floors were clear at the time. The shape of the counter was plainly visible either by design, color, or merchandise showing the shape of the counter. Mrs. Eugene was reaching over the carousel part of the counter, where items are not placed for checkout, to give her husband items for checkout ... on the counter [where] check-out items were to be placed. She was coming from the opposite direction of usual check-out and she hit the side of the counter with her foot. Had she approached the counter from the correct way, this incident would not have happened. Therefore, the Court finds for the defendant, DG of Louisiana, LLC[, ] dismissing plaintiffs suit with prejudice at the cost of plaintiff.
In light of the record reviewed in its entirety, a reasonable factual basis exists for the trial court's ruling in favor of DG and against Mrs. Eugene under La. R.S. 9:2800.6. See Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). There was no evidence presented at trial to show that the cash register desk or the counter presented an unreasonable risk of harm. See La. R.S. 9:2800.6(B). Accordingly, the deferential manifest error standard, as applicable to merchant liability cases brought under La. R.S. 9:2800.6, is applicable in this case. See Rosell, 549 So.2d at 844. We therefore affirm the trial court's December 7, 2020 judgment. Given Mrs. Eugene's status as a pauper, we decline to assess costs of appeal.
AFFIRMED.