[Copyrighted Material Omitted]
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana. Trial Court No. 2010-4456. Honorable Carl Van Sharp, Judge.
MIXON & CARROLL, By: James L. Carroll, Counsel for Appellant.
NELSON, ZENTNER, SARTOR & SNELLINGS, LLC, By: David H. Nelson, Counsel for Appellee, Brookshire Grocery Co.
Before WILLIAMS, STEWART and CARAWAY, JJ.
[49,707 La.App. 2 Cir. 1]CARAWAY, J.
In this case, the plaintiff was shopping at a grocery store when she tripped and fell on a small box in the aisle. The store management had begun its restocking procedures two hours before it closed for the evening, and the box had been left on the floor for the restocking of a product. Following a bench trial, the trial court found no fault on the part of the defendant. Our review of the record shows that the box in question presented an unreasonable risk of harm, and we therefore reverse the ruling of the trial court.
In the evening of January 3, 2010, Donna Guerrero (the " Plaintiff" ) tripped and fell over a box left in the aisle of Super 1 Foods in West Monroe. A Super 1 Foods manager for defendant, Brookshire Grocery Company (" Brookshire" ), placed a box on the floor of the aisle in anticipation of restocking the shelves. Plaintiff and her husband arrived at the grocery store at approximately 8:00 p.m. and walked down the center aisle of the store looking for coffee. They did not find the coffee on that aisle, and turned onto the next aisle. Photographs taken by the defendant well after the accident show the aisle where the coffee was sold. It is undisputed that the boxes were out in the aisle before the store closed at 10:00 p.m., since such restocking activity is a regular practice of Super 1 Foods. Plaintiff testified that she was unaware of the box, and after looking for the coffee on the shelf, she tripped and fell over the box.
Plaintiff reported her injury to a cashier in the store, who in turn reported the accident to Jessie Harrison, the store's on-duty manager. [49,707 La.App. 2 Cir. 2] Harrison completed an incident report and allegedly used Plaintiff's husband's phone to take a picture of the accident scene. Either later that night or the next day, Mr. Guerrero looked for the picture on his phone, but it was not there. Plaintiff insists that Harrison deleted the picture after taking it. Brookshire denies that this picture was ever taken. The accident report states that no pictures were taken. Plaintiff claims that Harrison took the picture and then went into his office to transfer it onto his computer. Plaintiff testified that the box she tripped over was the only box in the aisle, but this fact is disputed by Harrison. Harrison claimed that there were other boxes set out in anticipation of restocking. Photographs introduced by Brookshire at trial show a recreation of the accident scene with multiple boxes on the ground, " depicting the approximate location of boxes as they were spotted on the evening of the accident."
At trial, Harrison testified on direct examination that the photographs accurately depicted the aisle at the time of the accident. The photographs show at least six boxes in the aisle, with some stacked at different places along the aisle to over two feet high. However, on cross-examination, Harrison testified that he did not have specific recollection as to how many boxes were on the aisle on the night of the accident, and, in fact, admitted that his previous testimony from his deposition was more accurate. In his deposition, Harrison testified that he specifically remembered only the box Plaintiff tripped over being in the aisle, and possibly one other box. The disputed photographs do not reflect this and clearly show several boxes in the aisle. Harrison also admitted that there were no warnings issued in the store, or signs posted informing customers that stocking was underway. He [49,707 La.App. 2 Cir. 3] admitted that the only way for customers to know that shelving was occurring was by observing the boxes on the floor.
Plaintiff's husband testified that the box was the height of a coffee can. He remembered this because coffee cans in the
box fit snugly. Harrison testified that he believed the box was full of coffee filters, and not coffee cans, and that the box was " tall and slender." Harrison did not see the accident, but he recalls that when Plaintiff showed him where the accident happened, " she showed [Harrison] the coffee filter box." Thus, from the trial evidence as a whole, including Brookshire's disputed representation of the aisle by its recreation of the scene, it is apparent that the box in question was rectangular in shape and around 10 inches or less in height.
After the accident, Harrison reviewed the security tapes from inside the store, where over 20 cameras were present. Harrison testified that none of the cameras focused on the location where the fall occurred, so there was no video evidence of the accident. Harrison deleted the video recordings, insisting that there was nothing to preserve.
Plaintiff went for treatment at the Orthopedic Center of Monroe, where doctors diagnosed her with a T1-2 herniated disc as a direct result of the fall. Plaintiff claims to continue to suffer pain daily, and that she will ...