
    Mrs. Rosetta BAPTISTE v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC.
    No. 7278.
    Court of Appeal of. Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Concurring Opinion Nov. 16, 1976.
    
      Gerdes & Valteau, Louis A. Gerdes, Jr., New .Orleans, for plaintiff-appellee.
    Dillon & Williams, C. T. Williams, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA, SCHOTT, MORIAL and BEER, JJ.
   MORIAL, Judge.

Plaintiff filed this suit against Schweg-mann Brothers Giant Supermarkets, Inc., to recover damages for personal injuries and medical expenses resulting from a fall which she alleged was caused by slipping on discarded ice cream on the floor of one of the defendant’s supermarkets. Defendant answered, denying negligence on its part, asserting negligence on the part of the plaintiff, and filed a third party demand for indemnity against Norman Enterprises, Inc. and its insurer, Allstate Insurance Company, respectively, the operator of an ice cream concession in the vicinity of the fall and its insurer.

After a trial on the merits, judgment was rendered in favor of plaintiff and against Schwegmann Brothers in the sum of $1,430.00 — $1,000.00 for pain and suffering and the remainder for medical expenses. The judgment also dismissed defendant’s third party demand against Norman Enterprises and Allstate.

Schwegmann has prosecuted this appeal from that portion of the judgment awarding damages against it. Schwegmann has not appealed from that part of the judgment dismissing its third party demand and that aspect of the case is not before this court. Plaintiff has answered the appeal seeking an increase in the award for pain and suffering.

On the evening of July 3, 1971, plaintiff was a customer in defendant’s store at 5300 Old Gentilly Road in New Orleans. She completed her shopping and passed through the check-out line without incident. However, before leaving the store, plaintiff decided to purchase some roasted nuts. Leaving her loaded grocery cart with a store employee for safe keeping, she proceeded to a roasted nut counter located between the entrance doors and check-out counters in an area approximately 35 ft. wide by 450 ft. long. This is the area where customers enter and exit the store. Before reaching the nut counter she slipped on what she later learned was ice cream.

Plaintiff testified that at the time of her fall she did not see the ice cream; she claims she first saw melted ice cream on the floor sometime after she had fallen and had received assistance. Plaintiff estimated she was twelve feet from the roasted nut counter when she fell.

The confusing and frequently conflicting jurisprudence in slip and fall cases, particularly on the issue of burden of proof, appears to have been settled by the Supreme Court of Louisiana in the recent cases of Gonzales v. Winn-Dixie Louisiana, Inc. and Kavlich v. Kramer, both of which were handed down subsequent to the rendition of judgment in the instant case. In both cases the court held that when the plaintiff-customer proves there was a foreign substance on the floor, not there due to his or her fault, which caused the plaintiff to slip, fall and be injured, the defendant-store must assume the burden of exculpating itself from negligence. When, as here, it appears that a third person dropped the foreign substance, the store owner must establish that periodic inspections were made and other reasonable protective measures were taken to keep the aisles and floors free of substances or objects that may cause customers to fall. Gonzales, supra.

Of course, contributory negligence is also a possible defense, but we find no such negligence in the instant case. Another possible defense is that the foreign substance was on the floor for such a short period of time that even a most reasonable inspection procedure would not have removed its presence in time for removal before plaintiff fell.

We are not able to determine the length of time the ice cream was on the floor. The only evidence on the subject was offered by plaintiff herself. She testified she “almost” lost consciousness as a result of the fall; a security guard and another store employee assisted her from the floor and helped her sit in the area where groceries were placed into bags for customers, a procedure which consumed several minutes. Her testimony as to the time which elapsed between the fall and when she first saw the ice cream on the floor varies between a period of several minutes to an hour. Thus, the fact that the ice cream was melted when first seen by plaintiff proves nothing as to the length of time it had been on the floor prior to plaintiff’s fall. Insofar as is shown by the record, at the time plaintiff fell the ice cream could have been on the floor for a very short time or for a comparatively long time.

Our next question is whether the defendant’s periodic inspections and cleanup procedures were sufficient to discharge its burden in the instant case.

Don Hughes, the assistant store manager on the night in question testified the manager, assistant manager, three security personnel, a floor supervisor and a porter supervisor were to constantly patrol the aisles of the store with instructions to remove any debris found on the floor or contact a porter to do so immediately. In addition, stock clerks were assigned to each aisle of the store with similar instructions. On the night in question there were at least ten porters on duty in the store to attend to cleanup procedures of this nature.

Joe Walker, the porter supervisor on duty at the time of plaintiff’s fall, stated he had between ten and twelve porters on duty at the store. Each porter was assigned to a section of the store with instructions to make a round-trip inspection of his section at fifteen to twenty minute intervals. Walker testified that he himself took part in some of the cleaning in the store. At the time of plaintiff’s accident, Walker had assigned Will Matthews to the area in which plaintiff fell, and Matthews was assisted by another man.

Matthews, the porter assigned to the portion of the store where plaintiff fell, confirmed he had a man on duty with him at the time. The procedure followed by him and which he instructed the other porter to follow was to cover each section of the area to which he was assigned once every fifteen to twenty minutes. Matthews indicated he and the other porter patrolled an area approximately thirty feet wide by half a block long. While there was some dispute at the trial regarding the half block measurement, it appears Matthews and his assistant were assigned to patrol an area approximately 35 ft. wide and 450 ft. long.

While the record does support the conclusion that the defendant had established a system of cleanup procedures, it is devoid of evidence from which to conclude that the scheduled cleanup or inspection procedures were in fact carried out. Further, the spill of ice cream was within plain view of everyone in the heavily traversed area between the entrance doors and thirty-five (35) check-out counters. The two porters on duty in the area where plaintiff fell should have seen that which was obviously discoverable by them. There is no showing from the record that any of the check-out cashiers or baggers were in a position where they could have seen the ice cream on the floor. Nevertheless, it is inescapable under the circumstances of this case that the defendant failed to discharge its burden of proving that it was reasonably prudent in its exercise of duty and care owed to a customer in a self service grocery store. Kavlich, supra.

Our careful evaluation of plaintiff’s injuries compels us to conclude that the award to her is reasonable, fair and adequate.

For the foregoing reasons the judgment of the district court is affirmed.

AFFIRMED.

SAMUEL, Judge

(dissenting).

I must disagree with the basic holding of the majority, that “While the record does support the conclusion that the defendant had established a system of cleanup procedures, it is devoid of evidence from which to conclude that the scheduled cleanup or inspection procedures were in fact carried out.” Instead of being “devoid” of such evidence, the record actually contains abundant evidence showing that scheduled, and clearly adequate, cleanup or inspection procedures (the majority does not question the adequacy of the procedures) were in fact being carried out at the time the accident occurred. That evidence, which is correctly stated in detail in the majority opinion, i.e., the testimony of the assistant store manager, the porter supervisor, and the porter on duty in the area of the fall, is totally uncon-tradicted and is not questioned by the trial court.

Both of the latest Supreme Court cases on the subject, Gonzales v. Winn-Dixie Louisiana, Inc., La., 326 So.2d 486, and Kavlich v. Kramer, La., 315 So.2d 282, hold that a store owes a duty of reasonable care under the circumstances to protect its customers from foreign objects or substances on its floors; reasonable protective measures, including adequate periodic inspections, must be taken by the store to keep its aisles and floors free of objects or substances which may cause customers to fall; and if the evidence brought forward by the store establishes that such reasonable protective measures were being taken at the time of the accident, the store is free from fault and cannot be held liable.

The conclusion here reached by the majority makes a mockery of this rule. I know of no requirement that the defendant store prove its use of reasonable protective measures beyond the proof required in any other civil ease, i.e., by a preponderance of the acceptable evidence. As stated above, the present defendant has met that burden and I wonder what kind or amount of proof the majority would require.

Nor can I agree with the apparently alternative basis for liability as expressed in the next-to-last paragraph of the majority opinion, that the two porters on duty in the area where plaintiff fell should have seen the spill of ice cream “which was obviously discoverable by them.”

In the first place, this conclusion ignores the fundamental question implicit in this type of slip and fall, which is: For what length of time had the ice cream been on the floor? Obviously, if it had been on the floor for a sufficiently long time as to be discoverable by adequate, regular and periodic inspections, its non-discovery and non-removal would result in liability on the part of the store. Equally obviously, if the accident occurred immediately or very shortly after the ice cream had fallen to the floor, no amount of reasonable inspection or cleanup procedures could be expected to result in its discovery and removal by store employees and under these circumstances there would be no such liability. Here the majority opinion states, as I believe it must in order to be correct, that there is no way of determining the length of time the ice cream was on the floor.

In the second place, if the ice cream was so obviously discoverable, why wasn’t the plaintiff guilty of contributory negligence in failing to see that substance at the time of her fall? She was certainly under a duty to observe where she was walking, and she was not in an area where objects offered for sale were present upon shelves of various sizes and heights so as to cause her to focus her attention on those objects; in fact, she was not concerned with the purchase of anything other than the roasted nuts; with that single exception, she had completed her shopping.

As I would render judgment in favor of the defendant and dismiss plaintiff’s suit, I respectfully dissent.

BEER, Judge

(dissenting).

I respectfully dissent for the reasons expressed by SAMUEL, J.

SCHOTT, Judge

(concurring in the denial of the application for rehearing).

In its application for rehearing defendant has taken sharp issue with the statement contained in the majority opinion that the record “is devoid of evidence from which to conclude that the scheduled cleanup or inspection procedures were in fact carried out.” Having re-examined the record, I agree with defendant that the statement complained of is not entirely accurate since there was, indeed, some evidence that the inspection procedures discussed in the opinion were in fact carried out. However, in my opinion such evidence was not sufficient to warrant a reversal of the judgment of the trial court in the light of the recent jurisprudence controlling slip and fall cases in self-service supermarkets.

In the first place, the trial court made a finding of fact that the ice cream was on the floor long enough for it to melt, and while he made this finding in the context of the then prevailing jurisprudence that the burden was on the plaintiff to establish how long the foreign substance was on the floor before the burden shifted to the defendant to exculpate itself from negligence, the only change in the jurisprudence is that plaintiff is relieved of this burden in the first instance and a mere showing that a foreign substance is on the floor places the burden of proof on the defendant to exculpate itself from negligence, irrespective of the length of time the foreign substance has been on the floor.

Thus, we have in the instant cases a gratuitous finding by the trial court that this substance was on the floor for some time from which I would conclude that defendant is liable based upon Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976) and Kavlich v. Kramer, 315 So.2d 282 (La.1975).

Although the Court in the Gonzales case specifically declined to adopt a rule that the storeowner insures the customer’s safety it is arguable that the effect of the case is to adopt that rule. Surely, it made the defendant liable even if the spill of olive oil occurred only moments before plaintiff slipped and fell on the substance. See dissent of Justice Summers, 326 So.2d 490. The case seems to eliminate entirely the significance of the time frame in which a substance remains on the floor and makes unimportant in deciding the case whether the location of the accident in the store was inspected five minutes or five hours prior to the substance getting on the floor. The only way a defendant can exculpate itself from liability under the Gonzales decision is to prove that the substance got on the floor only a moment before the fall so that it was physically impossible for defendant to detect and/or remove the substance and thereby prevent the accident. Only to that extent can it be said that the storeowner is not the insurer of the customer’s safety.

In the instant case there is no evidence that this particular spot where the spill of ice cream was located had been checked only a few moments before the fall. On the contrary, the trial judge’s findings indicate that it was there for a longer period of time than just a few moments. Under these circumstances Gonzales would not warrant a reversal.

Kavlich supports an affirmation even more so. There the court acknowledged evidence of cleanup procedures which required a cleanup of the area where plaintiff fell just two hours before it occurred. The court said:
“. . . We are concerned with what happened in that two-hour period and with what degree of reasonableness the employees of the store acted in that period of time. The two employees in the store at the time of the accident testified they could have seen the banana because they were in a position behind the cash register and front counter to observe clearly the area where it was located. Obviously, the banana was observable. The employees testified that they were not extremely busy and that few customers had been in and out of the store during the two-hour period. Both employees testified they had traversed the area where the banana was located immediately before Mrs. Kavlich slipped and fell. One of them testified further that she was watching the floor that day even at the time the plaintiff fell.” (Emphasis supplied).

I recognize that the Court in Kavlich practically found actual knowledge of the hazard, and not mere constructive knowledge, but the language seems to require that the storeowner explain what measures were taken to inspect and cleanup until the very moment that the accident occurred in order to avoid liability.

Furthermore, in Kavlich the Court made a distinction in what should be observed by a storeowner as compared to what should be observed by a customer:

“We conclude that the defendants have not borne the burden of proving that they were reasonably prudent in their exercise of duty and care owed to a customer in a self-service grocery store. They should have seen that which was obvious to a careful observer. They should have observed that which they testified they were trained to discover. The defendant’s employees were negligent in failing to remove the piece of banana upon which Mrs. Kavlich fell.” (Emphasis supplied).

In their dissent in the instant case, my colleagues ask why wasn’t the plaintiff guilty of contributory negligence if the ice cream was so obviously discoverable. I respectfully submit that Kavlich answers that question. There the Court said the piece of banana on which Mrs. Kavlich slipped “was easily seen,” and while the employees of the store were found to be negligent for failing to discover and remove the hazard, contributory negligence on Mrs. Kavlich’s part was not discussed. It seems to me that the Court placed a greater degree of care on the storeowner to discover the hazard than on the customer.

I therefore concur in denying defendant’s application for rehearing. 
      
      . 326 So.2d 486 (La. 1976).
     
      
      . 315 So.2d 282 (La.1975).
     