Summary
In Latter, the central issue at trial was the exact arrangement of a folding table in relation to a nearby clothing rack at the time of the plaintiff's fall.
Summary of this case from Johnson v. Cato Corp.Opinion
CIVIL ACTION NO: 03-1167 SECTION: "J"(1)
February 3, 2004
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Jeanette Latter, a 91 year old female, claims she tripped and fell on the leg of a small metal folding table located in an aisle of the Sears store located on Veterans Boulevard in Jefferson Parish. As a consequence of her fall, Ms. Latter suffered a fractured right hip, requiring surgery and insertion of three pins to repair her fracture. Ms. Latter contends that Sears' employees negligently left the table unattended in a passageway or aisle of the ladies' clothing department on the second floor of the Sears store. Sears argues that plaintiff did not fall because of the table or, alternatively, that the table did not present an unreasonable risk of harm because there was ample clearance between the table and the nearest rack of clothing,
The Court severed, liability and damages. This matter came on for trial before the Court, sitting without a jury, on January 26, 2004. The Court now issues these findings of fact and conclusions of law, in accordance with Fed.R.Civ.P. Rule 52(a).
Discussion
The primary factual issue at trial was the exact arrangement of the folding table in relation to the nearby clothing rack at the time of Ms. Latter's fall. Ms. Latter testified that as she was walking down the aisle, looking at the rack of ladies' jeans and on her way to the ladies' room, she saw the folding table, thought she had sufficient space to pass between the table and the clothing rack, but tripped on a protruding leg of the table as she attempted to pass by.
Defendant denies that plaintiff tripped or fell, but believes that she simply sat down while experiencing a bowel movement while en-route to the ladies room on the second floor of the Sears store. Another possible theory offered by the defendant is that while passing the table, Ms. Latter stopped and placed her purse on the table, then perhaps leaned on the table and fell to the floor.
Plaintiff testified she went to the Sears Clearview store to shoe for jeans. She admits she was on her way to find the ladies' restroom, and was at the same time shopping for blue jeans, when she tripped ever a leg of the folding table which v/as sitting in the aisle near a rack of blue jeans.
Defendant offered a great deal of testimony to suggest that Ms. Latter had gone into the Sears store merely to use the ladies' room because she had taken "stool softeners" that morning. Regardless of why she initially entered the store, Ms. Latter was legally on the premises.
Each side submitted photographic evidence regarding the issues of: (1) where the folding table was located at the time of the accident and (2)How much clearance existed between the table and the nearest rack of clothing. The photographs include those taken on the scene shortly after the accident occurred, as well as those taken later in an attempted re-creation of the scene. There are substantial differences in what these photographs depict, insofar as they were taken from different views and show the table and the clothing racks in different positions. Based on the testimony at trial, the Court finds by a preponderance of the evidence that the photograph of the scene taken by Sears employee Shawn Hebert within minutes of the accident reflects the scene as it existed at the time of Ms. Latter's fall. While there were no precise measurements available to calculate the distance or space between the folding table and the nearest rack of clothing, the available space was clearly much narrower than the 36 inches as shown on the re-creation photographs and as required by Sears' own "shopability standards." Assuming the accuracy of the scene as depicted in the Hebert photograph taken shortly after the accident, Sears' safety expert, Dennis Howard, estimated the folding table was protruding at least 12 inches beyond the corner of the v/all and into the aisle or passageway. The photographs of the folding table show that the legs flare outward near the fleer, creating what Mr. Howard admitted was a "potential tripping hazard."
Exhibit 1-B
Exhibit No. 7
The table was near a short wall (approximately 34 inches long) which formed part of a corner which was part of one of the passageways available for customers to traverse the area of the clothing racks. Instead of being flush against the wall, as depicted in the re-created photographs, the photograph taken by Shawn Hebert shows the table extending approximately 12 inches beyond the corner. The corner can be best visualized in both Exhibit 1-B and Exhibit 10, photograph No. 4.
Exhibit No. 5 is a brochure describing the use of the collapsible folding table.
The testimony of Jeanette Latter was completely credible. The Court finds by a preponderance of the evidence that the accident occurred as she described. Although Ms. Latter stated in her deposition testimony that she thought she had adequate room to pass between the folding table and the rack of clothing, based upon all of the evidence and testimony at trial, the Court finds that the folding table created a hazard or an unreasonable risk of harm considering that it was protruding at least 12 inches beyond the corner of the wall and into the aisle, especially with the flared legs and wheels protruding beyond the profile of the table itself. The placement of the folding table, as depicted in the Hebert photograph, together with the positioning of the clothing racks (which were also movable) did not allow a safe passageway for customers. This is especially true for an elderly person such as Ms. Latter, who although very spry for her age, nonetheless did not have the vision or agility of a younger person. The fact that its customers included elderly persons was obviously well known to Sears.
See Exhibit No. 4, Sears Safety and Health Manual (page labeled "Visual Display" in upper right corner), which states "Improper demonstration or display of merchandise is a common cause of customer accidents in the retail industry. Most accidents involve children . . . or the elderly (injured from striking and/or tripping over displays)."
Although Sears suggested that either the table and/or the racks of clothing had been moved by someone after the accident and before Shawn Hebert took his photograph, there was no credible evidence offered to support that theory. There was also no credible testimony or evidence that Ms. Latter for some reason voluntarily placed her purse on the folding table and then sat down or somehow leaned against the table and fell. Testimony of the Sears employees in several aspects contradicted one another. For example, Ms. Cambre, a Sears employee who was in the area, testified that she heard a "groan" or a "moan," looked and saw Ms. latter laying on the floor. She claims she walked over to help Ms. Latter, and saw Ms. Latter's purse on the folding table. She then claims to have taken the purse and placed it, along with a rolled up pair of pants, under Ms. Latter's head. At that point, Ms. Cambre testified, the loss prevention representative, Shawn Hebert, arrived, and she left the scene. On the other hand, Mr. Hebert testified that although he was not the first Sears employee or. the scene, when he arrived he saw the purse atop the folding table, but he did not know how it got there or who put it there.
During trial, the plaintiff offered testimony regarding alleged statements made by another Sears employee, Mandy Buras. Defendant objected and contended that the statements of Ms. 3uras constituted hearsay. Plaintiff argued that the statements were "admissions against interest" and therefore admissible as an exception to Fed.R.Evid. 804 (b)(3). This Court has not considered the alleged statements of Ms. Buras when making its findings of fact and conclusions of law.
Ms. Latter testified that she had her purse straps on her shoulder, and when she fell, the purse came loose and landed on the floor. She assumes someone picked it up and placed it atop the table nearby. Ms. Latter's testimony strikes the Court as the more logical explanation of how the purse ended up atop the folding table after she fell.
Applicable Law
Louisiana law applies in this diversity case. There is a state statute which determines the liability of a recall merchant such as Sears for a slip or trip and fall by a customer due to a hazard in the condition of its floors, aisles or passageways.
Louisiana Revised Statute § 9:2800.6 states:
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.
LA. REV. STAT. ANN. § 9:2800.6 (West 1997).
Sears contends that Ms. Latter has failed to proved that the folding table created an unreasonable risk of harm, or that Sears had actual or constructive knowledge of the condition prior to her fail.
In determining whether a particular condition creates an "unreasonable risk of harm," a balancing test is employed. The fact finder must balance the gravity and risk of harm against the social utility and the cost to repair. Stated in another way, "the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others." Joseph v. City of New Orleans, 842 So.2d 420, 423 (La.App. 4th Cir. 2003).
Applying such a balancing test to the facts and circumstances of this particular case, the Court determines that the position of the folding table, protruding into the passageway and too close to the clothing racks, created a hazardous condition. The risk of harm to a customer such as Ms. Latter included the risk that they would trip over the flared legs of the table while attempting to pass between the table and the clothing racks. The risk of serious injury to a customer, especially an elderly or infirm customer, was great (as evidenced by the serious hip fracture sustained by Ms. Latter). On the other hand, the social utility of the folding table at the time of the accident was practically nil. The folding table is used by Sears employees to fold shirts for display purposes. The table, however, was not being used at the time of Ms. Latter's fall. Exhibit 5 demonstrates that the folding table is collapsible, for ease of storage when not being used. While not in use, the table could have been easily collapsed and stored away from customer aisles or passageways. Instead, Sears employees were instructed to leave the table, unattended, up against the wall, but still within the passageway routinely used by customers in the ladies' clothing department. Thus, at the time of plaintiff's accident, there was no utility in having the folding table left unattended in the passageway that customers were invited to walk through.
Sears argues that the folding table could not have created an unreasonable risk of harm because it was open and obvious to customers, and in fact was admittedly seen by Ms. Latter before she tripped and fell. However, "the open and obvious nature of the [hazard] is merely another factor to be weighed in the risk-utility balance."Joseph, 842 So.2d at 424. Under the circumstances of this particular case, balancing the risk of potential harm, especially to an elderly customer, and the lack of any social utility, the Court concludes that there was an unreasonable risk of hart.
This is not a case where the plaintiff must prove actual or constructive notice to prevail. The evidence supports the conclusion that Sears created the hazardous condition by leaving the folding table unattended in such a position that it protruded into a passageway and too close to adjacent clothing racks. This conclusion is supported by trial testimony that the folding table belonged to Sears, that it was used in the clothing department by Sears' employees to fold shirts for display, and that when not in use, the table was routinely left open (rather than collapsed and stored away) and unattended in the clothing department in the area where it was located at the time of Ms. Latter's fall. Since Sears created the condition, there is no issue of actual or constructive knowledge in this case.
Finally, the Court must consider whether Ms. Latter's own negligence contributed to her injury. In comparing fault, the Court applies the list of factors set forth by the Louisiana Supreme Court in Watson v. State Farm, 469 So.2d 967, 974 (La. 1935): (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) whether the capacities of the actors were superior or inferior; (5) whether any extenuating circumstances required the actor to proceed without proper thought; and (6) the relationship between the actor's conduct and the harm to the plaintiff.
The conduct of Sears in leaving the folding table unattended was not mere inadvertence, but a routine practice by its employees. Comparing the conduct of Ms. Latter, her conduct in failing to fully appreciate the danger was due to inadvertence.
The risk of potential harm created by Sears' conduct was comparatively greater than the risk of harm from Ms. Latter's conduct. Sears' conduct exposed any customer shopping in the ladies' department to the risk of potentially tripping and falling. Ms. Latter's conduct exposed only herself to injury.
The conduct of Sears was apparently motivated by its use of the folding table to fold shirts for display. The conduct of Ms. Latter was to shop for a pair of jeans and, at the same time, to make her way to the ladies' room.
Comparing the relative capacities of the actors, clearly Sears was in the superior position to reduce or eliminate the hazard. The table belonged to Sears, was used by its employees, and when not in use could have been easily collapsed and stored elsewhere.
There were extenuating circumstances involving Ms. Latter's age and infirmities, as well as the flared bottom of the wheeled legs on the folding table, which might create the illusion that the table was narrower than it actually is.
There is a clear relationship between Sears' conduct and the harm sustained by Ms. Latter. For the reasons explained above, there is some relationship, although less clear, between Ms. Latter's conduct and the harm she suffered.
Applying these Watson factors, and considering the evidence in this case, the Court finds that Ms. Latter was 25% comparatively at fault.
For these reasons, the Court finds that Sears is liable for 75% of plaintiff's damages. A telephone status conference will be scheduled for the purpose of selecting a trial date on the issue of damages.