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Thompson v. Winn-Dixie Montgomery, Inc.

Court of Appeal of Louisiana, Third Circuit

December 10, 2014

PATRICIA ANN THOMPSON
v.
WINN-DIXIE MONTGOMERY, INC., ET AL

Page 42

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA, DOCKET NO. 112-884-C. HONORABLE JOHN CONERY, DISTRICT JUDGE.

Pride J. Doran, Quincy L. Cawthorne, Chris B. Lear, Doran & Cawthorne Law Firm, PLLC, Opelousas, LA, ATTORNEY FOR PLAINTIFF/APPELLANT, Patricia Thompson.

David J. Calogero, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, Lafayette, LA, ATTORNEY FOR DEFENDANT/APPELLEE, Winn Dixie Montgomery, Inc.

Court composed of Sylvia R. Cooks, John D. Saunders, Elizabeth A. Pickett, Billy H. Ezell, and James T. Genovese, Judges. PICKETT, J., concurs in part, dissents in part and assigns written reasons.

OPINION

Page 43

[13-1063 La.App. 3 Cir. 1] Cooks, Judge

FACTS AND PROCEDURAL HISTORY

Patricia Ann Thompson (Plaintiff) slipped and fell while shopping at a Winn-Dixie store in New Iberia, Louisiana, when she walked across a wet area on the floor in the frozen meat section of the store. Water covered an area of the floor approximately four feet wide by two feet in length and was seeping from underneath a floor mat measuring three feet in width by ten feet in length. Plaintiff was injured in the fall. She was recovering from a recent back surgery at the time of the fall and had to undergo another back surgery after the fall. She continues to incur medical costs as a result of this injury.

Page 44

Winn-Dixie attempted to have the leaking meat case repaired multiple times over the preceding months. The store maintenance was provided for pursuant to a contract between Winn-Dixie and Southern Cleaning Services, Inc. (Southern). Southern, in turn, sub-contracted the maintenance work to a cleaning service owned by Mildred Caldwell, d/b/a KAP Cleaning Service (KAP). KAP's employee, Veronica Hausner, was assigned to this Winn-Dixie store but was not informed about the recurrent leakage problem with the refrigerated meat cases. Plaintiff settled with KAP prior to trial, and a judgment of dismissal was entered accordingly. Winn-Dixie pled the affirmative defense of third-party negligence alleging KAP was partly at fault for Plaintiff's injuries. The jury found KAP seventy percent at fault and Winn-Dixie thirty percent at fault.

The jury returned a verdict awarding damages to Plaintiff in the amount of $63,345.83 for past and future medical expenses, $10,000.00 for pain and suffering and mental anguish, and $10,000.00 for loss of enjoyment of life. Winn-Dixie filed a Motion for Judgment Notwithstanding the Verdict and a Motion to Tax and Award Costs. Plaintiff filed a Motion for Judgment Notwithstanding the Verdict [13-1063 La.App. 3 Cir. 2] or Alternatively for Additur or New Trial. The trial court denied both parties' Motions for Judgment Notwithstanding the Verdict and cast part of the costs on Plaintiff. Both parties appealed. Subsequent to filing its Motion for Suspensive Appeal, Winn-Dixie's appeal was dismissed for abandonment under the provisions of La.Code Civ.P. art. 2126. The judgment dismissing Winn-Dixie's suspensive appeal reserved Winn-Dixie's right to " seek modification, revision, or reversal of the final judgment by answer to the Plaintiff's appeal." Winn-Dixie timely filed an answer to Plaintiff's appeal.

LAW AND ANALYSIS

The imposition of tort liability against a merchant for a patron's injuries resulting from an accident on the merchant's premises is governed by the Claims Against Merchants statute, La.R.S. 9:2800.6. Davis v. Wal-Mart Stores, 00-0445 (La. 11/28/00), 774 So.2d 84; Melton v. Smith, 41,456 (La.App. 2 Cir. 9/20 06), 940 So.2d 89.

Milton v. E& M Oil Co., 45,528, p. 5 (La.App. 2 Cir. 9/22/10), 47 So.3d 1091, 1094-95.

Louisiana Revised Statutes 9:2800.6 (emphasis added) 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.

Page 45

[13-1063 La.App. 3 Cir. 3] (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, ...

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