Oreck, Bruce James

English

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Louisiana Law ReviewVolume 37 | Number 2The Work of the Louisiana Appellate Courts for the1975-1976 Term: A SymposiumWinter 1977The Game's Afoot: The Storekeeper's HeightenedResponsibility for Slip and Fall AccidentsBruce James OreckThis Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationBruce James Oreck, The Game's Afoot: The Storekeeper's Heightened Responsibility for Slip and Fall Accidents, 37 La. L. Rev. (1977)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol37/iss2/30LOUISIANA LAW REVIEWis routine in tort law and the courts are more capable of performing this taskthan ferreting out illusory psychological distinctions between intellectualand physical gratification present in contractual objects. 5Steve M. MarksTHE GAME'S AFOOT: THE STOREKEEPER'S HEIGHTENED RESPONSIBILITY FORSLIP AND FALL ACCIDENTSSince World War Two, the American business community has under-gone tremendous changes, especially in its retail merchandising system.The small corner store has given way to national chain stores and self-service shopping. The local grocery has turned into a giant supermarket. Asalways, the law is running hard to keep stride with these changes, trying tomaintain an equilibrium between public policy and private interests. Inorder to keep this balance of interests, our courts have had to redesign thelegal relationship between patrons and proprietors. This note examinesrecent changes in Louisiana law affecting the responsibility of storekeepersfor slip and fall injuries sustained in their stores.Louisiana storekeepers owe an affirmative duty to their patrons to useordinary or reasonable care' to provide safe aisles and passageways bymeans of clean-up and inspection procedures consistent with the purposes ofthe store. 2 While this language has been used consistently by the courts todelay; whereas a breach of the obligation properly to repair the auto is less aIproximate" cause of inconvenience where the breach is unintentional. In the instantcase the court noted at the outset that the damages sought were suffered and that theamount awarded was reasonable, thereby acknowledging the strong tie between theobligation to repair within a reasonable time and the inconvenience suffered becauseof its breach. See the text at note 14, supra.45. See Ward v. State Farm Mut. Auto. Ins. Co., 539 F.2d 1044 (5th Cir. 1976)(certified question to Louisiana Supreme Court concerning the application of theprinciple of the instant case to the breach of a contract of insurance).I. E.g., Calamari v. Winn Dixie La., Inc., 300 So. 2d 653 (La. App. 4th Cir.1974); Broussard v. National Food Stores, Inc., 233 So. 2d 599 (La. App. 3d Cir.1970), aff'd 258 La. 493, 246 So. 2d 838 (1971); Lofton v. Travelers Ins. Co., 208 So.2d 739 (La. App. 3d Cir. 1968).2. E.g., Tripkovich v. Winn Dixie La., Inc., 284 So. 2d 80 (La. App. 4th Cir.1973), aff'd 286 So. 2d 663 (1973); Fontanille v. Winn Dixie La., Inc., 260 So. 2d 71(La. App. 4th Cir. 1972); Peters v. Great A. & P. Tea Co., 72 So. 2d 562 (La. App. 2dCir. 1954).[Vol. 37NOTESdescribe a proprietor's duty, the actual scope of that duty received twomarkedly different interpretations in the courts of appeal.In Lofton v. Travelers Insurance Company ,' the Third Circuit applieda standard that required the plaintiff to establish that the proprietor or one ofhis employees created or maintained the dangerous condition which causedthe injury, or that the storekeeper or employee had actual or constructiveknowledge of that condition.' Because the plaintiff usually could notascertain how long the dangerous condition existed before it caused hisinjury, he had difficulty proving actual or constructive knowledge on thepart of the storekeeper. In making recovery so difficult, the court limited thestorekeeper's duty, essentially placing most of the risk of self-serviceshopping on the plaintiff. 5The approach of Lofton was in sharp contrast with that taken in Lang v.Winn Dixie Louisiana, Inc. ,6 in which the First Circuit broadly interpretedthe duty of care a proprietor owes to his patrons. In Lang, under a concept ofexpanded duty, the storekeeper was held to a standard of care such that theoccurrence of the accident gave rise to an inference of negligence. Toestablish a prima facie case, the plaintiff needed only to show that ahazardous condition existed and that it caused his injury. The defendant thenhad the burden of exculpation. 7 In order to meet that burden, the proprietorhad to prove that adequate inspection and clean-up procedures were carriedout. 8 Lang tended to shift the risk of self-service shopping from the shopperto the proprietor. 93. 208 So. 2d 739 (La. App. 3d Cir.), cert. denied, 252 La. 457, 211 So. 2d 327(1968).4. Id. at 741.5. Later cases relying on the Lofton rationale help illustrate how little wasrequired for the storekeeper to prevail in a slip and fall case. For example, inFrederick v. Winn Dixie La., Inc., 227 So. 2d 387 (La. App. 4th Cir. 1969), plaintiffslipped and fell on a grape at a check-out counter that had not been mopped for onehour preceding the accident. The defendant received a favorable judgment becausethe plaintiff failed to prove how long the grape had been on the floor. The court didnot even consider whether failure to keep check-out counters swept was a violationof the proprietor's duty. In Orgeron v. Home Town Supermarket, 311 So. 2d 494 (La.App. 4th Cir. 1975), the plaintiff was injured when he slipped on sugar on the aislefloor below the rack where sugar was on display. Although an employee had placedsugar out on the shelves within one hour of the accident and admitted that sugar wasoften on the floor, the court found that there had not been a violation of theproprietor's duty.6. 230 So. 2d 383 (La. App. 1st Cir. 1969).7. Id. at 388.8. Id.9. The standard of care under Lang was determined by the nature of thepremises, the purpose of the business, and the particular fact situation. Id. at 389. For1977]LOUISIANA LAW REVIEWThe Louisiana Supreme Court confronted the issue of the scope of aproprietor's duty in Kavlich v. Kramer'° and Gonzales v. Winn Dixie. IIAnalyzing the storekeeper's duty in terms of "reasonable care," the courtaccepted the reasoning of Lang as controlling.' 2 Once the plaintiff estab-lishes a prima facie case, the burden then "shifts"' 3 to the defendant to goforward with the evidence to exculpate himself from the presumption that hewas negligent. 14The duty of the'proprietor to protect his patrons from foreign sub-stances on the floor is still one of reasonable care. Factors determinative of abreach of that duty include the type and volume of merchandise, the type ofdisplay, the floor space used for customer service, the nature of customerservice and the volume of business. 5 According to the new jurisprudence,example, in Phillips v. Great A. & P. Tea Co., 256 So. 2d 652 (La. App. 2d Cir. 1972),plaintiff slipped on a piece of fatty meat on the floor by the meat counter. There hadbeen an inspection of that area forty-five minutes before the accident. The courtfound that this inspection met the standard of reasonable care required of theproprietor and denied recovery to the plaintiff. In Welch v. Great A. & P. Tea Co.,273 So. 2d 876 (La. App. Ist Cir. 1973), plaintiff slipped on a grape. The proprietorhad swept the floor within an hour of the accident and had made an inspection justfifteen minutes before the accident. The court found that the storekeeper had notviolated his duty of care.10. 315 So. 2d 282 (La. 1975).11. 326 So. 2d 486 (La. 1976).12. 326 So. 2d at 488; 315 So. 2d at 285. The court in Kavlich could have foundthe storekeeper negligent for simply failing to see what was in front of his eyes;instead it relied upon Lang. 315 So. 2d at 285.13. The term "burden of proof" must be understood to encompass two distinctconcepts: the risk of non-persuasion and the duty of going forward with the evidence.The risk of non-persuasion falls on the party whose case will fail if after all theevidence has been presented the judge remains in doubt as to the culpability of theother party. In other words, one party always bears the duty of persuading the judgebeyond the doubting point. The duty of going forward with the evidence means that aparty must produce a certain quantum of evidence before the judge will let a case goto the jury. 9 J. WIGMORE, A TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT THECOMMON LAW 270-72, 278-84 (3d ed. 1940). In Louisiana, where jury trials in civilcases are rare and a judge is usually the entire tribunal before which a case is decided,the duty of coming forward with the evidence loses some of its meaning. However, ina slip and fall situation it is still the plaintiff who must convince the judge that thestorekeeper was negligent (the risk of non-persuasion). Since the decision in Kavlich,a slip and fall accident gives rise to an inference of negligence because of thestorekeeper's expanded duty. The plaintiff, merely by showing that he slipped andwas injured due to a dangerous condition has come forward with enough evidence toestablish a prima facie case. At this point the duty of going forward with the evidenceshifts to the storekeeper to rebut the plaintiff's case.14. 326 So. 2d 486, 488 (La. 1976); 315 So. 2d 282, 285 (La. 1975).15. 326 So. 2d 486, 488 (La. 1976).[Vol. 37NOTESthe nature of the self-service grocery system heightens the duty to minimizethe risk of slip-and-fall accidents by frequent inspections and clean-ups. 16Apparently the court considers the self-service systems dangerous; andalthough the danger is not prohibitive, it is sufficient to justify placing a verydemanding duty of care upon the storeowner. Correspondingly, the stand-ard of care is so high that the occurrence of the accident forces the proprietorto exculpate himself. The question that logically follows is whether it ispossible at all for the storekeeper to exculpate himself.In cases decided under the concept of limited duty, 7 the presence of aforeign substance on the floor for thirty minutes was considered longenough to create constructive knowledge in the storekeeper.' 8 RecentFlorida cases accepting the expanded duty concept have found negligent afailure to inspect the aisles for just ten minutes.' 9 The frequency of aisleinspections, shelf inspections and general store maintenance that will bedemanded of a Louisiana storekeeper has yet to be determined. The holdingin Gonzales at least indicates that because of his high duty of care, thestorekeeper will find it difficult to rebut the inference of negligence thatarises from an accident in his store.20Proof by inference is the essential element in the logic of the new slipand fall cases. Consequently, it is unfortunate that the court does not take amore direct approach in its analysis. Presented squarely with the opportuni-ty to determine the applicability of res ipsa loquitur in slip and fallsituations, the supreme court has been totally ambiguous on this point in itsdecisions."'The supreme court's ambivalence on the use of res ipsa loquiturprobably stems from its desire to avoid the misunderstandings so commonlyconnected with the term. Yet res ipsa loquitur is no more than a form ofproof by inference. 2 In Larkin v. State Farm Mutual Auto Insurance16. Id..17. See text at note 3, supra.18. E.g., Vogts v. Schwegman Bros. Giant Supermarkets, 56 So. 2d 177 (La.App. Orl. Cir. 1952).19. Miller's Thriftway Stores, Inc. v. Hohnsbeen, 240 So. 2d 84 (Fla. App. 1stDist. 1970); Jenkins v. Brackin, 171 So. 2d 589 (Fla. App. 2d Dist. 1965).20. Gonzales makes no reference to the required frequency of store inspections.However, the case places on storekeepers an increased duty to minimize risksthrough frequent inspection. Following Gonzales, inspections every fifteen minuteshave been deemed inadequate. Baptiste v. Schwegmann Bros. Giant Supermarket,338 So. 2d 1163, 1167 (La. App. 4th Cir. 1976) (Schott, J., concurring).21. "Neither do we hold the doctrine of res ipsa loquitur necessarily applicableto a slip-and-fall injury in a self service grocery store." 326 So. 2d at 489.22. W. PROSSER, HANDBOOK OF THE LAW OF TORTS 213 (4th ed. 1971) [hereinaf-ter cited as PROSSER]. An inference is a conclusion based on facts or premises, a19771LOUISIANA LAW REVIEWCompany,23 the Louisiana Supreme Court acknowledged that res ipsaloquitur means only that the circumstances involved in or connected with anaccident are of such character as to justify, in the absence of other evidencebearing on the subject, the inference that the accident was due to thenegligence of one having control of the thing which caused the injury. Theaccident gives rise to the inference of negligence because the totality ofcircumstances surrounding the accident are of such character that unless anexplanation can be given, the only reasonable conclusion is that theaccident was due to some omission of the defendant's duty.A proprietor's expanded duty permits the application of res ipsaloquitur in slip and fall accidents even under traditional criteria. 24 Slip andfall accidents normally do not occur in the absence of negligence. Thestorekeeper is generally responsible for hazardous conditions created in hisstore.25 Further, knowledge of the true cause of the accident is certainlymore accessible to the storekeeper than to the injured shopper. 2 6 Finally, theinstrumentality causing the harm is within the control of the defendant."Control," if not to be misleading, must be interpreted flexibly. 27 It shouldbe enough that the defendant has the right or power of control along with thederivation by implication. Malone, Res Ipsa Loquitur and Proof by Inference-ADiscussion of the Louisiana Cases, 4 LA. L. REV. 70, 71 (1941). See also BLACK'SLAw DICTIONARY 917 (4th ed. 1968). For example, in an automobile accident causedby a tire blowout there are many competing inferences. Perhaps the driver wasnegligent in not maintaining his tires properly, but perhaps the tire was defective orthe driver ran over an object too small to see, such as a nail. Cox v. Wilson, 267S.W.2d 83 (Ky. App. 1954). But, when a woman attending a furniture auction isinjured by a live 600-pound steer falling through the ceiling from the room above, theaccident clearly gives rise to an inference of negligence. Guthrie v. Powell, 178 Kan.587, 290 P.2d 834 (1955).23. 233 La. 544, 97 So. 2d 389, 391 (1957).24. (1) The accident is the kind that does not ordinarily occur in the absence ofnegligence, (2) the injury was caused by an agency or instrumentality within theactual or constructive control of the defendant, (3) evidence of the full cause of theaccident is more readily accessible to the defendant. Comment, Problems of Proof:The Function andApplication of Res Ipsa Loquiturin Louisiana, 25 LA. L. REV. 748,750 (1965).25. The storekeeper has the duty to keep the aisles, passageways and floors in areasonably safe condition. This duty extends to every hazard which creates anunreasonable risk of foreseeable harm to his store invitees. See, e.g., Broussard v.National Food Stores, Inc., 233 So. 2d 599, 601 (La. App. 3d Cir. 1970). Thus thehazardous condition on the floor that causes the slip and fall accident is normallyattributable to a breach of the storekeeper's duty.26. 326 So. 2d at 488.27. PROSSER at 221. See Comment, Problems of Proof: The Functions andApplication of Res Ipsa Loquitur in Louisiana, 25 LA. L. REV. 748, 750 (1965).[Vol. 37NOTESopportunity and responsibility to exercise control.28 The cases recognizethat in a self-service system customers are apt to drop objects on the floorand that customers are invited to serve themselves and to handle themerchandise.29 In allowing recovery under the rationale of Kavlich andGonzales the court is placing the responsibility for damages caused by theforeseeable misconduct of other patrons on the storekeeper. 30 Thus therequirement of control has been met because the court finds that the cause ofthe accident is such that the defendant is responsible for the negligenceconnected with it.31The court has not expressly applied res ipsa loquitur in any of the newcases either under the traditional criteria or under the Larkin32 standard.Nevertheless, it seems that the court has applied res ipsa loquitur but refusedto label it as such, which may add to the very confusion sought to beeliminated. Until the court pretermits the issue by unequivocally stating thatres ipsa loquitur is (or is not) applicable in slip and fall situations, plaintiffsand defendants will continue to be perplexed as to their legal strategies.Self-service systems require customers to look at the shelves in order tolocate the goods they wish to purchase. 3 In fact, the merchandise is set outso as to entice shoppers to focus their attention upon the displays rather thanthe floor. 3a Is the patron whose attention has been attracted to the displayscontributorily negligent because he fails to observe an object in his path onthe floor? The cases indicate instead that the storekeeper will not be able toescape liability by claiming that the shopper should have watched his step,when in fact it was the storekeeper who created the distraction .35 The patronhas the "right to presume" that the aisles and passageways will be free fromhazardous conditions in light of the storekeeper's intent and knowledge that28. See note 25, supra.29. 326 So. 2d at 488.30. This is not a revolutionary legal concept. See The Work of the LouisianaAppellate Courts for the 1964-1965 Term-Torts, 26 LA. L. REV. 510, 523 (1966).31. Gonzales refers to Prosser on this point. 326 So. 2d at 488. See PROSSER at221, 349. See, The Work of the Louisiana Appellate Courts for the 1963-1964Term-Torts, 25 LA. L. REV. 334 (1965).32. See text at note 23, supra.33. 315 So. 2d at 284.34. Lofton v. Travelers Ins. Co., 208 So. 2d 739, 743 (La. App. 3d Cir. 1968).35. Ferrington v. McDaniel, 336 So. 2d 796, 798 (La. 1976); Gonzales v. WinnDixie La., Inc., 326 So. 2d 486,489 (La. 1976); see also Guy v. Kroger Co., 204 So. 2d790 (La. App. 2d Cir. 1967); Dever v. George Theriot's, Inc., 159 So. 2d 602 (La. App.3d Cir. 1964). The court may also be compensating for the absence of comparativenegligence in Louisiana. See Malone, Contributory Negligence and the LandownerCases, 29 MINN. L. REV. 61, 68-69 (1945).19771640 LOUISIANA LAW REVIEW [Vol. 37the customer will devote his attention to the displayed merchandise.36No doubt, modern self-service supermarkets are better able to bear thecosts of shopping accidents than were the small grocery stores they havereplaced. But the court may have overlooked the benefits that make theself-service system worthwhile, such as lower prices, faster service and agreater selection of goods. Ultimately, the class of persons the courtattempted to protect, consumers, may not benefit from the new jurispru-dence for the cost of the storekeeper's expanded duty will be reflected inhigher priced merchandise.Bruce James Oreck36. Wittaker v. Schwegmann Bros. Giant Supermarkets, 334 So. 2d 756,757 (La.App. 4th Cir. 1976).

The Game\u27s Afoot: The Storekeeper\u27s Heightened Responsibility for Slip and Fall Accidents

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The Game\u27s Afoot: The Storekeeper\u27s Heightened Responsibility for Slip and Fall Accidents

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